FAY & FAY - [2015] FamCA 739

FAMILY COURT OF AUSTRALIA

FAY & FAY

[2015] FamCA 739

FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – Where the only significant asset in the matrimonial pool is jointly owned land – Where it was found that the contributions of the parties until separation were equal – Where after separation the wife spent the entirety of the money received by her as a result of an insurance claim in relation to a fire at the former matrimonial home – Where the insurance policy was in the wife’s sole name but the former matrimonial home was jointly owned – Where it was found that the husband had made an indirect contribution toward the insurance money through his contributions toward the former matrimonial home – Where the Court declined to add back the insurance money into the matrimonial pool – Where the money received and spent by the wife was taken into account under s 75 (2) – Where the Orders provided for the land to be transferred to the husband.

Family Law Act 1975 (Cth) ss 75, 79

Kennon & Kennon (1997) FLC 92-757
Miller & Miller [2009] Fam CAFC 121
Yates & Yates [2012] FamCAFC 138

APPLICANT:

Mr Fay

RESPONDENT:

Ms Fay

FILE NUMBER:

SYC

6981

2013

DATE DELIVERED:

9 September 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

25 – 26 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A – In person

SOLICITOR FOR THE APPLICANT:

N/A – In person

COUNSEL FOR THE RESPONDENT:

Ms Spain

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

IT IS ORDERED

That the husband and the wife do all acts and things required to transfer to the husband the interest of the wife in the property at B Street, C Town in the state of New South Wales being the land described as Lot … DP ...
That in the event that either party fails or neglects to sign any document required to give effect to Order 1, a Registrar of the Family Court of Australia is authorised to sign such document on behalf of that person.
That other than as provided in these Orders, each party shall be solely entitled to any item of property in his or her possession at the date of these Orders.
That the wife’s application for spousal maintenance and for the payment of a lump sum of $250,000 is withdrawn and dismissed.
That the wife’s response filed on 14 August 2014 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fay & Fay has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6981/2013

Mr Fay

Applicant

And

Ms Fay

Respondent

REASONS FOR JUDGMENT

Mr Fay (“the husband”) and Ms Fay (“the wife”) commenced cohabitation in or around January 1996 and married in 1998. They have three children born in 1996, 1999 and…

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 FAY & FAY

Details

AGLC: FAY & FAY [2015] FamCA 739
Case: [2015] FamCA 739
Decision Date: 9 September 2015

CaseChat Overview and Summary

In the matter of FAY & FAY, Rees J of the Family Court of Australia considered a property settlement dispute between a husband and wife. The sole significant asset in the matrimonial pool was jointly owned land. The dispute centred on the division of this asset and the treatment of insurance money received by the wife after separation.

The court was required to determine how to treat insurance money received by the wife for damage to the jointly owned matrimonial home, which was paid under a policy in her sole name. Specifically, the court had to decide whether this money should be added back into the matrimonial pool for division, or if it should be considered under section 75(2) of the Family Law Act 1975 (Cth) as a financial resource or other relevant factor. The court also needed to determine the appropriate division of the jointly owned land.

Rees J found that the parties' contributions to the marriage until separation were equal. The court declined to add back the insurance money into the matrimonial pool, finding that while the husband had made an indirect contribution to the insurance proceeds through his contributions to the matrimonial home, the wife had spent the entirety of the money received. Instead, the court took the insurance money into account under section 75(2) of the Family Law Act 1975 (Cth) when considering the overall financial position of the parties. The court ordered that the jointly owned land be transferred to the husband.

Orders

Orders of the court

IT IS ORDERED

That the husband and the wife do all acts and things required to transfer to the husband the interest of the wife in the property at B Street, C Town in the state of New South Wales being the land described as Lot … DP ...

That in the event that either party fails or neglects to sign any document required to give effect to Order 1, a Registrar of the Family Court of Australia is authorised to sign such document on behalf of that person.

That other than as provided in these Orders, each party shall be solely entitled to any item of property in his or her possession at the date of these Orders.

That the wife’s application for spousal maintenance and for the payment of a lump sum of $250,000 is withdrawn and dismissed.

That the wife’s response filed on 14 August 2014 is otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.