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Higgins and Higgins

Higgins and Higgins

Case [2018] FamCA 243 15 February 2018

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FAMILY COURT OF AUSTRALIA

HIGGINS & HIGGINS

[2018] FamCA 243

FAMILY LAW – PROPERTY AND SPOUSAL MAINTENANCE – Where applicant bought respondent a home and later structured the drawing down of money from his company as a loan – where no such loan to the respondent occurred – where subsequently, the parties married giving rise to the property alteration jurisdiction – where the parties never lived together either as a de facto couple or as a married couple – Determination of the applicant’s claim for the sale of the home – where it would it not be just and equitable to require the wife to surrender the home – where interim orders for property settlement were made but it would not be just and equitable in the circumstances to allow the wife to keep that money as no contributions justify it – order for return of that money – where claim for spousal maintenance is made but no evidence supports the conclusion that the wife cannot adequately support herself.

Family Law Act 1975 (Cth)
Income Tax Assessment Act 1997 (Cth).

Ashton v Pratt [2015] NSWCA 12
Australian Woollen Mills Pty Ltd v The Commonwealth [1954] HCA 20; (1954) 92 CLR 424
Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Beneke and Beneke (1996) 20 FamLR 841
Bevan and Bevan (2013) 48 FamLR 387; [2013] FamCAFC 116
Calverly v Green [1984] HCA 81; (1984) 155 CLR 252
CGU Insurance Limited v Lawless [2008] VSCA 38
Diprose and Louth (No 2) [1990] 54 SASR 450
Ermogenous v Greek Orthodox Community of SA Inc [2002] 2009 CLR 95
Gabel & Yardley (2008) 40 FamLR 66
Israel v Foreshore Properties Pty Ltd (in liq) (1980) 30 ALR 631
Issitch v Worrell and Ors [200] FCA 477
Kennon v Spry (2008) 251 ALR 257
King v Lynpete Australia Pty Ltd and Ors [2012] VSC 140
Lakis v Lardis [2017] NSWSC 321
Lozanov and Lozanov [1994] FamCA 60
Lyon v Tweddell [1881] 17 ChD 529
Markarian v R (2005) 228 CLR 357
Norbis and Norbis (1986) 65 ALR 12
Popiw v Popiw [1959] VR 197
Priestley v Priestley [2016] NSWSC 1096
Roscorla v Thomas (1882) 3 QB 234
Stanford and Stanford (2012) 247 CLR 208
Watson and Ling [2013] FamCA 57
West v Mead [2003] NSWSC 161

APPLICANT:

Mr Higgins

RESPONDENT:

Ms Higgins

FILE NUMBER:

MLC

12095

2015

DATE DELIVERED:

15 February 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

6, 7, 10, 11 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Geddes QC With Ms Burt

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr Glick QC with Mr Matta

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

Orders

That by 30 March 2018, the wife pay to the husband $180,000.
In default of payment of the $180,000, the wife place the property at B Street, Suburb C on the market for sale and upon the sale, after payment of all expenses associated…

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 Higgins and Higgins

Details

AGLC: Higgins and Higgins [2018] FamCA 243
Case: [2018] FamCA 243
Decision Date: 15 February 2018

CaseChat Overview and Summary

In the matter of *Higgins and Higgins*, heard before Cronin J, the dispute concerned financial orders sought by the parties in divorce proceedings. The wife was ordered to pay a sum of $180,000 to the husband by a specified date, with a default provision requiring the sale of a property at B Street, Suburb C, to satisfy this payment, including accrued interest. The wife's application for spousal maintenance was dismissed, as was an application by D Pty Ltd and an earlier application by the husband.

The court was required to determine the appropriate financial settlement between the parties, including the division of assets and liabilities, and to consider the wife's claim for spousal maintenance. The court also had to address the claims brought by a third party, D Pty Ltd, and the husband's prior application.

Cronin J ordered the wife to pay $180,000 to the husband by 30 March 2018. In the event of non-payment, the wife was to sell the property at B Street, Suburb C, with the proceeds of sale to be applied first to the $180,000 payment and any accrued interest, and the balance to be paid to the wife. The wife's claim for spousal maintenance was dismissed. The applications by D Pty Ltd and the husband filed on 23 December 2015 were also dismissed. Furthermore, the husband was ordered to indemnify the wife against any claims made against her by D Pty Ltd relating to its books of account. The wife's response filed on 11 April 2016 was dismissed.

Orders

Orders of the court

That by 30 March 2018, the wife pay to the husband $180,000.

In default of payment of the $180,000, the wife place the property at B Street, Suburb C on the market for sale and upon the sale, after payment of all expenses associated with the sale, the payment to the husband of $180,000, and any interest accrued thereon calculated from 30 March 2018, the balance be paid to the wife.

That the wife’s application for spousal maintenance is dismissed.

The application by D Pty Ltd is dismissed.

The application of the husband filed on 23 December 2015 is dismissed.

The husband indemnify the wife arising out of any claim against her by D Pty Ltd as recorded in its books of account.

The response of the wife filed on 11 April 2016 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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Citations

Higgins and Higgins [2018] FamCA 243

Most Recent Citation

WILKES & BOLTON [2018] FamCA 309

Cases Citing This Decision

WILKES & BOLTON [2018] FamCA 309
Citation 1 (Para 31)

…Counsel for the wife referred me to my own decision in Higgins & Higgins [2018] FamCA 243 but that decision has no resemblance to the facts here. In that case, the spousal maintenance issue was part of the final trial and I found there was no evidence as to why the applicant could not adequately support herself. He…

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Cases Cited

Edward Ted Lakis v Michael Victor Lardis [2017] NSWSC 321
Citation 1 (Para 2)

…sment of the state of affairs between the parties…distinct from the identification of any subjective reservation or intention” ( Lakis v Lardis [2017] NSWSC 321 citing Ermogenous v Greek Orthodox Community of SA Inc [2002] 2009 CLR 95). Here, the applicant asserted there was an oral contract later confirmed in writ…
Priestley v Priestley [2016] NSWSC 1096
Citation 2 (Para 16)

…Counsel for the applicant referred me to Priestley v Priestley [2016] NSWSC 1096 as an indication that the court could look at “subsequent conduct” to determine whether there was a contract. This was a reference to the events leading up to, and including, the respondent signing the acknowledgment. In Priestley , a s…
Ashton v Pratt [2015] NSWCA 12
Citation 3 (Para 2)

…he type of which was frequently the subject of legal relations; (d)The obligations were capable of sufficient definition (citing Ashton v Pratt [2015] NSWCA 12 to which I turn below) and the terms of the loan were capable of definition and sufficiently defined; (e)The obligations were capable of enforcement; and (…
Watson & Ling [2013] FamCA 57
Citation 4 (Para 18)

…Murphy J in Watson and Ling [2013] FamCA 57 citing Stanford , stated (at [12]): Provided the discretion is exercised judicially, it is at large; it is neither possible or desirable to specify its “metes and bounds”. Recognition is given to the fact that the circumstances of individual marriages (their nature, form…
King v Lynpete Australia Pty Ltd [2012] VSC 140
Citation 5 (Para 3)

…t there was a loan and in the alternative, that a resulting trust arose, were factually inconsistent. (see King v Lynpete Australia Pty Ltd and Ors [2012] VSC 140; Issitch v Worrell and Ors [200] FCA 477 and; CGU Insurance Limited v Lawless [2008] VSCA 38 at para [27]).…
Teal & Teal [2010] FamCAFC 120
Citation 6 (Para 10)

…n order, such order itself must be just and equitable: Woollams & Woollams [2004] FCWA 32; (2004) FLC 93-195 per Thackray J at [53] and Teal v Teal [2010] FamCAFC 120 per Finn, Boland and Dawe JJ at [70].…
Kennon v Spry [2008] HCA 56
Citation 7 (Para 11)

…In Kennon v Spry (2008) 251 ALR 257 (at [95]) Gummow and Hayne JJ observed that the phrase in s 79(2): Appears to have its origins in the principles of equity which were developed with respect to the dissolution of partnerships, where they remained general words which were not to be reduced to the sum of particular i…
CGU Insurance Ltd v Lawless [2008] VSCA 38
Citation 8 (Para 3)

…sistent. (see King v Lynpete Australia Pty Ltd and Ors [2012] VSC 140; Issitch v Worrell and Ors [200] FCA 477 and; CGU Insurance Limited v Lawless [2008] VSCA 38 at para [27]).…
Markarian v The Queen [2005] HCA 25
Citation 9 (Para 17)

…This is similar to the logic used by the High Court in criminal or sentencing case of Markarian v R (2005) 228 CLR 357 where Gleeson CJ, Gummow, Hayne and Callinan JJ stated (at [39]): An invitation to a sentencing judge to engage in a process of “instinctive synthesis” as useful as shorthand terminology may on occas…
West v Mead [2003] NSWSC 161
Citation 10 (Para 6)

…In relation to a possible trust, Mr Glick referred to West v Mead [2003] NSWSC 161 which arose out of the termination of a de facto relationship. One of the partners there had owned a property prior to the commencement of the relationship and that property increased in value during the relationship. The other party…
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8
Citation 11 (Para 2)

…ion of any subjective reservation or intention” ( Lakis v Lardis [2017] NSWSC 321 citing Ermogenous v Greek Orthodox Community of SA Inc [2002] 2009 CLR 95). Here, the applicant asserted there was an oral contract later confirmed in writing. He submits: (a)When the relevant conversations took place there was a…
Baumgartner v Baumgartner [1987] HCA 59
Citation 12 (Para 7)

…The reference by Campbell J to Baumgartner is to the decision of the High Court [1987] HCA 59; (1987) 164 CLR 137. The significance in both Baumgartner and West v Mead (supra) lies in the fact that equity intervenes where it is unconscionable for someone to claim an interest in a property. Unconscionability was…
Norbis v Norbis [1986] HCA 17
Citation 13 (Para 13)

…Brennan J in Norbis and Norbis (1986) 65 ALR 12 referred to this vague notation of justice and equity and observed at page 28: An unfettered discretion is a versatile means of doing justice in particular cases, but unevenness in its exercise diminishes confidence in the legal process.…
Muschinski v Dodds [1985] HCA 78
Citation 14 (Para 7)

…interest in a property. Unconscionability was said by Jessel MR in Lyon v Tweddell [1881] 17 ChD 529 at 531 (quoted by Deane J in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583) and explained by the High Court in Baumgartner , to be determined by a court guided by equitable principles, not by any idiosync…
Calverley v Green [1984] HCA 81
Citation 15 (Para 10)

…f the applicant and submitted that there was a resulting trust here and relied upon the decision of the High Court of Australia in Calverly v Green [1984] HCA 81; (1984) 155 CLR 252. The words of Gibbs CJ in that decision indicate why that authority is distinguishable from the facts here. The Chief Justice said:…
Australian Woollen Mills Pty Ltd v The Commonwealth [1954] HCA 20
Citation 16 (Para 20)

…edgment document. This focuses on whether the document amounts to a binding contract with PPL. In Australian Woollen Mills Pty Ltd v The Commonwealth [1954] HCA 20; (1954) 92 CLR 424, the High Court (Dixon CJ, Williams, Webb, Fullagar and Kitto JJ) said: [32](I)t is necessary, in order that a contract may be est…
Bevan & Bevan [2013] FamCAFC 116
Citation 17

…54) 92 CLR 424 Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 Beneke and Beneke (1996) 20 FamLR 841 Bevan and Bevan (2013) 48 FamLR 387; [2013] FamCAFC 116 Calverly v Green [1984] HCA 81; (1984) 155 CLR 252 CGU Insurance Limited v Lawless [2008] VSCA 38 Diprose and Louth (No 2) [1990] 54 SASR 450 Ermogen…
L & L [1994] FAMCA 60
Citation 18 (Para 2)

…That includes an examination of what their intentions and assumptions were in relation to how they would conduct themselves. (see Lozanov and Lozanov [1994] FamCA 60).…
Woollams & Woollams [2004] FCWA 32
Citation 19 (Para 10)

…st and equitable to do so, the corollary is that if the court does make an order, such order itself must be just and equitable: Woollams & Woollams [2004] FCWA 32; (2004) FLC 93-195 per Thackray J at [53] and Teal v Teal [2010] FamCAFC 120 per Finn, Boland and Dawe JJ at [70].…
Roscorla v Thomas (1842) 3 QB 234
Citation 20 (Para 21)

…of the house) before a promise is made (PPL lending money to the respondent after the gift) cannot constitute good consideration for the promise (see Roscorla v Thomas (1882) 3 QB 234).…
Roscorla v Thomas (1882) 3 QB 234
Citation 21 (Para 21)

…re a promise is made (PPL lending money to the respondent after the gift) cannot constitute good consideration for the promise (see Roscorla v Thomas (1882) 3 QB 234).…
[1881] 17 ChD 529 [1881] 17 ChD 529
Citation 22 (Para 7)

…uity intervenes where it is unconscionable for someone to claim an interest in a property. Unconscionability was said by Jessel MR in Lyon v Tweddell [1881] 17 ChD 529 at 531 (quoted by Deane J in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583) and explained by the High Court in Baumgartner , to be determined…

Legislation Cited

Family Law Act 1975 (Cth)
1 mention (from Para 15)
Family Law Rules 2004 (Cth)
1 mention
Income Tax Assessment Act 1997 (Cth)
1 mention (from Para 3)