Hart and Cruickshank - [2004] FMCAfam 668

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HART & CRUICKSHANK

[2004] FMCAfam 668

FAMILY LAW – Property – just and equitable division of net assets – global and asset by asset approach – direct and indirect contributions by each party – credit of each party’s evidence.

Family Law Act 1975 (Cth), ss.75(2), 79

Lee Steere and Lee Steere (1985) FLC 19-626
Ferraro (1993) FLC 92-335
Clauson (1995) FLC92-595
Russell and Russell (1999) FLC 92-877
Pastrikos and Pastrikos (1980) FLC 91-987
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
Whitely and Whitely (1996) 92-684
Tuck and Tuck (1981) FLC 91-021
McMahon and McMahon (1995) FLC 92-606
Norbis v Norbis (1986) 161 CLR 513
Zyk v Zyk (1995) FLC 92-644
Quinn (1979) FLC 90-677
Kerr (Full Court of the Family Court) 11 August 1995 (unreported)
Danielan v Danielian [2003] FamCA 473
Brown v Green (1999) 25 Fam LR 483
Harris (1991) FLC 92-698
Neneke (1996) FLC 92-698
Judkins and Santamaria [2003] FamCA 618

Applicant:

DELIA JEANIE HART

Respondent:

GAVIN KENNETH CRUICKSHANK

File No:

BRM 4706 of 2003

Delivered on:

2 December 2004

Delivered at:

Townsville

Hearing date:

19 August 2004

Judgment of:

Coker FM

REPRESENTATION

Counsel for the Applicant:

Mr Burke

Solicitors for the Applicant:

Frank Carroll Solicitor

Counsel for the Respondent:

Mr Galloway

Solicitors for the Respondent:

Simonidis Shoebridge Lawyers

ORDERS

That the Husband forthwith transfer to the Wife at the Wife’s expense all his right title and interest in and to the properties situate at Magellan Road, Springwood, more particularly described as Lot 59 of Registered Plan 122346 County of Stanley Parish of Redland, City of Logan, Walbrook Avenue, Springwood, more particularly described as Lot 276 on Registered Plan 133472 County of Stanley Parish of Redland, City of Logan and Barry Street, Slacks Creek, more particularly described as Lot 48 on Registered Plan 123142 County of Stanley Parish of Yeerongpilly, City of Logan.
That the Wife indemnify and keep the Husband indemnified in relation to all liabilities attaching to the said properties and that within 30 days of the date of these Orders effect a change in mortgage to release the Husband from any liability.
That the Wife indemnify and keep the Husband indemnified in relation to all monies owing to Peter Hart and Jeanie Hart.
It is declared that the Wife has no interest in and to the property held in the name of the Husband at 6/367 Cornwall Street, Greenslopes more particularly described as Lot 6 on BUP102447, County of Stanley, Parish of Bulimba, and further that the Wife has no interest in and to the 1988 Porsche 944 Turbo motor vehicle.
That each party otherwise retain as and for their own property absolutely all assets held in their name including but not limited to superannuation entitlements.
That each party do all acts and things and execute all deeds and instruments necessary to give effect to the Orders and that if either party refuses or neglects to sign any document within 7 days of a written…

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 Hart and Cruickshank

Details

AGLC: Hart and Cruickshank [2004] FMCAfam 668
Case: [2004] FMCAfam 668
Decision Date: 2 December 2004

CaseChat Overview and Summary

The case of Hart and Cruickshank involved a dispute between a married couple over the division of their assets. The matter was heard in the Family Court of Australia. The central issue was the equitable distribution of the parties' property, including residential properties, a motor vehicle, and other assets, in the context of their divorce.

The court had to determine the fair allocation of the assets, considering the contributions made by each party to the marriage and their respective needs post-divorce. The court examined the financial and non-financial contributions of each spouse, the value of the assets, and the future needs and circumstances of each party. Additionally, the court had to address the Wife's request for indemnity against certain liabilities and debts.

The court ruled that the Husband should transfer his interests in specific properties to the Wife, who was required to indemnify the Husband against any liabilities associated with these properties. The court declared that the Wife had no interest in certain other properties and assets held solely by the Husband. Each party was to retain their own assets, including superannuation entitlements. The court also mandated that the Wife indemnify the Husband against any debts owed to his parents. The court appointed the Registrar of the Federal Magistrates Court to execute necessary documents on behalf of any party who failed to comply with the orders within the specified timeframe.

Orders

Orders of the court

That the Husband forthwith transfer to the Wife at the Wife’s expense all his right title and interest in and to the properties situate at Magellan Road, Springwood, more particularly described as Lot 59 of Registered Plan 122346 County of Stanley Parish of Redland, City of Logan, Walbrook Avenue, Springwood, more particularly described as Lot 276 on Registered Plan 133472 County of Stanley Parish of Redland, City of Logan and Barry Street, Slacks Creek, more particularly described as Lot 48 on Registered Plan 123142 County of Stanley Parish of Yeerongpilly, City of Logan.

That the Wife indemnify and keep the Husband indemnified in relation to all liabilities attaching to the said properties and that within 30 days of the date of these Orders effect a change in mortgage to release the Husband from any liability.

That the Wife indemnify and keep the Husband indemnified in relation to all monies owing to Peter Hart and Jeanie Hart.

It is declared that the Wife has no interest in and to the property held in the name of the Husband at 6/367 Cornwall Street, Greenslopes more particularly described as Lot 6 on BUP102447, County of Stanley, Parish of Bulimba, and further that the Wife has no interest in and to the 1988 Porsche 944 Turbo motor vehicle.

That each party otherwise retain as and for their own property absolutely all assets held in their name including but not limited to superannuation entitlements.

That each party do all acts and things and execute all deeds and instruments necessary to give effect to the Orders and that if either party refuses or neglects to sign any document within 7 days of a written request to do so, the Registrar of the Federal Magistrates Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Family Law Act 1975 (as amended) to execute such documents on behalf of such party.

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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