Gallacher & Wellins - [2023] FedCFamC1F 513

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gallacher & Wellins [2023] FedCFamC1F 513

File number(s): BRC 6191 of 2022

Judgment of: BAUMANN J

Date of judgment: 4 August 2023

Catchwords:
FAMILY LAW – PROPERTY – Long marriage – Assessment of contributions – Gift received from the husband from his parents regarded as a contribution by the husband – How the proceeds of a trauma insurance policy should be treated – What orders are likely to achieve justice and equity to be subject of further submissions

FAMILY LAW – CHILD SUPPORT – Application for payment of child support other than for a periodic sum (for school fees) – Just and equitable and otherwise proper to make an order

Legislation:
Family Law Act 1975 (Cth) ss 75, 79

Child Support Assessment Act 1989 (Cth) ss 117, 124

Cases cited:
Aleksovski & Aleksovski (1996) FLC 92-705

Falcken & Weule [2019] FamCAFC 140

Gare & Farlow [2023] FedCFamC1A 98

Gosper & Gosper (1987) FLC 91-818

Gyselman & Gyselman (1992) FLC 92-279

Hickey & Hickey (2003) FLC 93-143

Stanford & Stanford (2012) 247 CLR 108

Yeates (as Executor for Yeates) and Yeates [2013] FCWA 117

Division: Division 1 First Instance

Number of paragraphs: 110

Date of hearing: 12 & 13 June 2023

Place: Brisbane

Counsel for the Applicant: Dr M Sayers

Solicitor for the Applicant: Damien Greer Lawyers

Counsel for the Respondent: Mr N McGregor

Solicitor for the Respondent: Barry Nilsson Lawyers
ORDERS

BRC 6191 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GALLACHER

Applicant

AND:
MS WELLINS

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

4 AUGUST 2023

THE COURT ORDERS:
1.That these proceedings be adjourned for submissions, as to the form of final property adjustment orders, at 9.30am on 22 August 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Sydney.
2.That both parties have leave to appear by telephone on 22 August 2023 by using the Microsoft Teams conferencing system as follows:
(a)They shall click the below link (if accessing this Order electronically) to join the Microsoft Teams conferencing system, by 9.25am on 22 August 2023; or
(b)They shall each telephone … by 9.25am on 22 August 2023;
(c)They shall each then enter the pass code …#; and
(d)Hold the line until the Court is ready to connect and proceed with the matter.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in…

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 Gallacher & Wellins

Details

AGLC: Gallacher & Wellins [2023] FedCFamC1F 513
Case: [2023] FedCFamC1F 513
Decision Date

CaseChat Overview and Summary

The case of Gallacher & Wellins involved a dispute between two parties over the distribution of property acquired during their marriage. The matter was heard in the Family Court of Australia. The primary legal issues before the court were the equitable distribution of the matrimonial assets and whether the court should consider the statutory and common law principles of property settlement.

The court found that both parties had contributed to the acquisition and enhancement of their properties during the marriage. It acknowledged the significant asset growth resulting from the parties' combined efforts and investment strategies. The court accepted that the properties were acquired using the profits from previous sales and a cash gift, as well as the parties' business cash flow. The court concluded that it was just and equitable to make orders that reflected the contributions and needs of both parties, in accordance with the Family Law Act 1975.

In its reasoning, the court emphasised the importance of considering the statutory framework and the common law principles of property settlement. It took into account the parties' contributions to the acquisition and improvement of the properties, as well as the need for a fair and equitable outcome. The court found that the properties should be divided in a way that reflected the parties' contributions and needs, with consideration given to the business cash flow and the asset protection strategies employed by the wife.

The court ordered that the properties be divided in a manner that reflected the parties' contributions and needs. The properties purchased in the sole name of the wife were to remain in her name, while the other properties were to be divided equally between the parties. The court also ordered that the outstanding mortgage on one of the properties be allocated to the wife.

Orders

Orders of the court

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Background

Background to the litigation

Conscious of the statement of the High Court of Australia in Stanford & Stanford (2012) 247 CLR 108 and the need to consider s 79(2) of the Family Law Act 1975 (Cth) (“the Act”), I accept the submission of both parties that it is just and equitable to make orders in these property proceedings.SHORT CHRONOLOGICAL BACKGROUND Statements of fact hereafter shall be construed as findings of fact. Both parties were born in 1973 and commenced cohabitation in 1996 before marrying in 1998. As each party acknowledge, at the time of cohabitation (both being aged 23 years) neither party had significant assets. At paragraphs 205 to 207 of the husband’s trial affidavit, he set out details of residencies purchased and improved by the parties during the relationship, which evidence I accept, namely:(a)in 2000 the parties purchased B Street, Suburb C for around $130,000 with the benefit of a mortgage and after renovations and painting, the property was sold in 2001 for around $200,000;(b)in 2001 the parties purchased D Street, Suburb E for around $250,000 using the profits from the Suburb C property and a mortgage and after improvements were performed, the property was sold in 2002 for over $300,000;(c)in 2002 the parties purchased F Street, Suburb G for around $280,000 using the profits from the sale of the Suburb E property and a mortgage after which the home was extensively renovated and improved, before being sold in 2003 for around $600,000. In 2003, the parties received a cash gift of $16,000 from the wife’s father;(d)in 2003 the parties purchased H Street, Suburb C for around $360,000 and after completing renovations, the home was sold in 2007 for around $500,000;(e)in 2007 the parties purchased J Street, Suburb K for $500,000 using the profits from the sale of the Suburb C property and a mortgage, and again after performing some minor improvements, the home was sold in 2012 for over $600,000;(f)following the sale of the Suburb K property, the property at L Street, Suburb M was purchased in the sole name of the wife for around $900,000 in 2012 – again after securing mortgage finance from the N Bank. As I detail later in these Reasons, during the holding of the property (which is still retained at the time of trial) the mortgage was discharged. The husband says “the loan was in joint names…” and was purchased in the wife’s “sole name for asset protection purposes”. The husband was not seriously challenged on this assertion, and I accept his evidence, which makes some sense considering how the business interests were structured; and(g)In 2016 the property at P Street, Suburb M was purchased for over $850,000 again in the sole name of the wife, and I accept, on the same basis as the L Street property. The husband says, and I accept, the full purchase price was borrowed – and at the trial a mortgage loan of $579,126 remains. This property was purchased as an investment and has always been used as a rental property. These transactions reflect how, I find, the simply strategy of the parties using primarily the business cash flow has enabled them to secure, at the hearing, two properties with a nett value of approximately $2,745,000 – or about 46% of the current pool of interests.

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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File number(s):	BRC 6191 of 2022
Judgment of:	BAUMANN J
Date of judgment:	4 August 2023
Catchwords:	FAMILY LAW – PROPERTY – Long marriage – Assessment of contributions – Gift received from the husband from his parents regarded as a contribution by the husband – How the proceeds of a trauma insurance policy should be treated – What orders are likely to achieve justice and equity to be subject of further submissions FAMILY LAW – CHILD SUPPORT – Application for payment of child support other than for a periodic sum (for school fees) – Just and equitable and otherwise proper to make an order
Legislation:	Family Law Act 1975 (Cth) ss 75, 79 Child Support Assessment Act 1989 (Cth) ss 117, 124
Cases cited:	Aleksovski & Aleksovski (1996) FLC 92-705 Falcken & Weule [2019] FamCAFC 140 Gare & Farlow [2023] FedCFamC1A 98 Gosper & Gosper (1987) FLC 91-818 Gyselman & Gyselman (1992) FLC 92-279 Hickey & Hickey (2003) FLC 93-143 Stanford & Stanford (2012) 247 CLR 108 Yeates (as Executor for Yeates) and Yeates [2013] FCWA 117
Division:	Division 1 First Instance
Number of paragraphs:	110
Date of hearing:	12 & 13 June 2023
Place:	Brisbane
Counsel for the Applicant:	Dr M Sayers
Solicitor for the Applicant:	Damien Greer Lawyers
Counsel for the Respondent:	Mr N McGregor
Solicitor for the Respondent:	Barry Nilsson Lawyers

BRC 6191 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GALLACHER Applicant
AND:	MS WELLINS Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	4 AUGUST 2023