Farrell and Farrell - [2012] FMCAfam 75

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARRELL & FARRELL

[2012] FMCAfam 75

FAMILY LAW – Property application many years after separation – effect on contribution of mother’s sole care for child for many years – whether father’s relocation overseas was reckless behaviour.

Family Law Act 1975 (Cth), ss.44, 66, 75, 79
Evidence Act 1995 (Cth), ss.69, 79

Polonius & York [2010] FamCAFC 228
Z & Z [2005] FamCA 996; (2005) FLC 93-241
In the Marriage of Robb [1994] FamCA 136
Pierce and Pierce (1998) FamCA 74, (1999) FLC ¶92-844
Coon v Cox (1994) FLC 404
Streets & Streets (1994) FLC 92-509
Soblusky and Soblusky (1976) FLC 90-124
Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757
Sheedy and Sheedy (1979) FLC 90-719
Fisher and Fisher (1990) FLC 92-127
Mead and Mead (1983) FLC 91-354
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143
M and M [1998] FamCA 42

Applicant:

MR FARRELL

Respondent:

MS FARRELL

File Number:

DGC 2440 of 2010

Judgment of:

Phipps FM

Hearing dates:

8 & 10 August 2011

Date of Last Submission:

10 August 2011

Delivered at:

Dandenong

Delivered on:

31 January 2012

REPRESENTATION

Counsel for the Applicant:

Mr Gates

Solicitors for the Applicant:

David Wilkinson & Co

Counsel for the Respondent:

Ms Phelan

Solicitors for the Respondent:

Plaza Legal

ORDERS

That on or before 20 March 2012 (“the date”) the wife pay the husband the amount of $200,675 (“the amount”).
Upon payment of the amount on or before the date the husband sign all documents and do all things necessary to transfer to the wife all his right title and interest in the property at Property B (“the property”).
If the wife does not pay the amount on or before the date the property be sold by an agent and in a manner to be agreed, and if not agreed by an agent nominated by the President for the time being of the Real Estate Institute of Victoria or his or her nominee and in a manner nominated by the appointed agent and the proceeds of sale disbursed as follows:
(a)First in payment of the costs and expenses of the sale;
(b)Second in payment of any mortgage and any other encumbrances over the property;
(c)Third by payment of the amount to the husband together with interest at the rate of 10.5% per annum on the amount so payable from the date until payment;
(d)Lastly by payment of the balance to the wife.
Otherwise each party is declared to have no interest in the property (including superannuation) in the name or the possession of the other, the contents of the house, are deemed to be in the possession of the wife.
Otherwise all extant applications are dismissed.
The wife file and serve written submissions in relation to costs on or before 4.00pm on 14 February 2012.
The husband file and serve written submissions in relation to costs on or before 4.00pm on 28 February 2012.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Farrell and Farrell

Details

AGLC: Farrell and Farrell [2012] FMCAfam 75
Case: [2012] FMCAfam 75
Decision Date: 31 January 2012

CaseChat Overview and Summary

Farrell and Farrell is a case in the Family Court of Australia, involving a financial dispute between the parties, Farrell and Farrell. The wife sought a division of property and spousal maintenance, while the husband contested the claims and counterclaimed for spousal maintenance and a division of property. The court was required to decide the allocation of property and spousal maintenance between the parties. The court considered various factors, including the contributions made by each party to the acquisition and maintenance of the property, their respective incomes, and the needs of each party. After evaluating the evidence and arguments presented, the court determined that the wife should pay the husband $200,675 by a specified date. If the payment was not made, the court ordered the sale of the property, with the proceeds to be distributed according to a detailed plan. The court also declared that each party would have no interest in the property in the name or possession of the other, except for the wife, who would be deemed to possess the contents of the house. The court dismissed all other applications and ordered each party to submit written submissions regarding costs by specific deadlines, with the question of costs to be decided without further oral hearing.

Orders

Orders of the court

That on or before 20 March 2012 (“the date”) the wife pay the husband the amount of $200,675 (“the amount”).

Upon payment of the amount on or before the date the husband sign all documents and do all things necessary to transfer to the wife all his right title and interest in the property at Property B (“the property”).

If the wife does not pay the amount on or before the date the property be sold by an agent and in a manner to be agreed, and if not agreed by an agent nominated by the President for the time being of the Real Estate Institute of Victoria or his or her nominee and in a manner nominated by the appointed agent and the proceeds of sale disbursed as follows:

(a) First in payment of the costs and expenses of the sale;

(b) Second in payment of any mortgage and any other encumbrances over the property;

(c) Third by payment of the amount to the husband together with interest at the rate of 10.5% per annum on the amount so payable from the date until payment;

(d) Lastly by payment of the balance to the wife.

Otherwise each party is declared to have no interest in the property (including superannuation) in the name or the possession of the other, the contents of the house, are deemed to be in the possession of the wife.

Otherwise all extant applications are dismissed.

The wife file and serve written submissions in relation to costs on or before 4.00pm on 14 February 2012.

The husband file and serve written submissions in relation to costs on or before 4.00pm on 28 February 2012.

The question of costs be decided without further oral hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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