Gleeson and Gleeson and Anor - [2014] FCCA 482

FEDERAL CIRCUIT COURT OF AUSTRALIA

GLEESON & GLEESON & ANOR

[2014] FCCA 482

Catchwords:
FAMILY LAW – Property – husband’s father joins as second respondent seeking repayment of alleged loans to husband and wife – husband declares bankruptcy during the course of the trial – effect of non-disclosure of alleged liabilities on bankruptcy statement of affairs – weight to be attributed to expert evidence – credit issues – onus of proof – contributions – section 75(2) factors including considerations under section 75(2)(o).

Legislation:

Family Law Act 1975

Bankruptcy Act1966 (Cth)

Evidence Act 1995 (Cth)

Stanford & Stanford [2012] HCA 52
Bevan & Bevan (2013) FLC ¶93-545
Biltoft & Biltoft (1995) FLC 92-614
Hickey & Hickey & Attorney-General for the Commonwealth Bank of Australia [2003] FamCA 395
Kowaliw & Kowaliw (1981) FLC 91-092
Elias & Elias (1977) FLC 90-267
Jones v Dunkel (1959) 101 CLR 298
Jordan & Jordan (1997) FLC 92-736
Makita (Australia) Proprietary Limited v Sprowles (2001) 52 NSWLR 705

Applicant:

MS GLEESON

First Respondent:

MR D GLEESON

Second Respondent:

MR V GLEESON

File Number:

MLC 5004 of 2011

Judgment of:

Judge McGuire

Hearing dates:

7 August 2012

3 – 4 December 2012

27 – 28 June 2013

21 – 23 October 2013

Date of Last Submission:

19 December 2013

Delivered at:

Melbourne

Delivered on:

17 April 2014

REPRESENTATION

Counsel for the Applicant:

Mr Robinson

Solicitors for the Applicant:

Duane Portway Family Law

Solicitors for the First Respondent:

Unrepresented

Counsel for the Second Respondent:

Ms Carter

Solicitors for the Second Respondent:

Dr Stretch Kontelj Lawyers

ORDERS

That within 28 days of the date of these orders the husband shall:
(a)Transfer and/or vest all his right, title and interest in the following to the wife absolutely:
(i)The property situate at Property D in Victoria;
(ii)All personalty and chattels in the possession of or under the control of the wife as at the date of these orders but subject to these orders;
(iii)The balances of any bank accounts or like investment in the name of or to the benefit of the wife as at the date of these orders; and
(iv)The wife’s shareholdings with (omitted) and (omitted).
(b)Be solely responsible for and indemnify the wife in respect of any and all liabilities incurred by him since separation in either joint names or in his name alone.
That contemporaneously with the transfers referred to in Order 1 hereof, the wife shall:
(a)Pay to the husband a lump sum of $3, 305;
(b)Transfer and/or vest all her right, title and interest in the following to the husband absolutely:
(i)The monies held in trust for the parties being the balance proceeds of sale of the property at Property H;
(ii)All personalty and chattels in the possession of or under the control of the husband as at the date of these orders including:
A.the (omitted) watch;
B.gold necklace with the crucifix (received at (omitted));
C.didgeridoo;
D.collectable albums by (omitted);
E.Barbeque;
F.all photos involving the husband’s family members;
G.all VCR recorded tapes with the husband’s…

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.

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Details

Case: [2014] FCCA 482
Decision Date: 17 April 2014

CaseChat Overview and Summary

This matter concerned property settlement proceedings between a husband and wife, heard by Judge McGuire. The dispute involved the division of various assets and liabilities between the parties.

The court was required to determine the appropriate orders for the alteration of property interests between the parties to the marriage. This involved considering the specific assets and liabilities of each party and making orders that were just and equitable in the circumstances.

The court's reasoning was guided by section 79 of the relevant Act, which empowers courts to make orders for property settlement. Section 79(2) mandates that any order made must be just and equitable, and section 79(4) outlines the factors the court must consider. These factors include financial and non-financial contributions to the acquisition, conservation, or improvement of property, contributions to the welfare of the family, the effect of orders on earning capacity, and other relevant matters such as those referred to in section 75(2) and child support obligations.

The court ordered a division of property and liabilities. The husband was to transfer his interest in a Victorian property, certain personalty, bank accounts, and shareholdings to the wife, and was to be solely responsible for liabilities incurred since separation. Contemporaneously, the wife was to pay a lump sum to the husband, transfer her interest in the proceeds of sale of another property, certain personalty, bank accounts, and a superannuation policy to the husband, and was to be solely responsible for specific liabilities including a mortgage. All other applications were dismissed.

Orders

Orders of the court

That within 28 days of the date of these orders the husband shall:

(a) Transfer and/or vest all his right, title and interest in the following to the wife absolutely:

(i) The property situate at Property D in Victoria;

(ii) All personalty and chattels in the possession of or under the control of the wife as at the date of these orders but subject to these orders;

(iii) The balances of any bank accounts or like investment in the name of or to the benefit of the wife as at the date of these orders; and

(iv) The wife’s shareholdings with (omitted) and (omitted).

(b) Be solely responsible for and indemnify the wife in respect of any and all liabilities incurred by him since separation in either joint names or in his name alone.

That contemporaneously with the transfers referred to in Order 1 hereof, the wife shall:

(a) Pay to the husband a lump sum of $3, 305;

(b) Transfer and/or vest all her right, title and interest in the following to the husband absolutely:

(i) The monies held in trust for the parties being the balance proceeds of sale of the property at Property H;

(ii) All personalty and chattels in the possession of or under the control of the husband as at the date of these orders including:

A. the (omitted) watch;

B. gold necklace with the crucifix (received at (omitted));

C. didgeridoo;

D. collectable albums by (omitted);

E. Barbeque;

F. all photos involving the husband’s family members;

G. all VCR recorded tapes with the husband’s relatives;

H. half of the framed portraits of the children;

I. selected family photos of the kids (or negatives); and

J. husband’s tools, and all paperwork relating to (business omitted).

such to be available to the husband to collect upon reasonable notice.

(iii) The balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these orders;

(iv) The husband’s superannuation policy and entitlement with (omitted) Superannuation.

(i) The mortgage held by (omitted) Bank and that the wife forthwith make her best endeavours to obtain a release by the bank for the husband’s liability under this mortgage;

(ii) Any and all liabilities attaching to any of the assets retained by the wife pursuant to these orders;

(iii) Any and all liabilities incurred by the wife since separation either in joint names or in her name alone.

That in all other respects the Application and Responses be 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

The jurisdiction and power of the Courts to make orders for property settlement or alteration are provided in section 79 of the Act as follows:Alteration of property interests (1) In property settlement proceedings, the court may make such order as it considers appropriate: (a) in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or (b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property; including: (c) an order for a settlement of property in substitution for any interest in the property; and (d) an order requiring: (i) either or both of the parties to the marriage; or (ii) the relevant bankruptcy trustee (if any); to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines. (2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. (4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account: (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and (e) the matters referred to in subsection 75(2) so far as they are relevant; and (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.