JONES & JONES - [2015] FCCA 2121

FEDERAL CIRCUIT COURT OF AUSTRALIA

JONES & JONES

[2015] FCCA 2121

Catchwords:
FAMILY LAW – Property – long marriage – long period of separation – add backs – liabilities – contributions.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79, 80, 90SF

Stanford & Stanford (2012) 247 CLR 108
NHC & RCH (2004) FLC 93-204
C & C [1998] FamCA 143
Gollings & Scott [2007] FLC 93-319
Bevan & Bevan (2013) FLC 93-545
Vass & Vass [2015] FamCAFC 51
Eldred & Eldred [2015] FamCA 61
Watson & Ling [2013] FLC 93-527
Bangi & Belov [2014] FamCA 8
Bateman & Bowe [2013] FamCA 253
Todd & Todd [2014] FamCA 101
Kowaliw & Kowaliw (1981) FLC 91-092
Biltoft & Biltoft (1995) FLC 92-614
Norbis & Norbis (1986) 161 CLR 513
Z & Z (2005) FLC 93-241
Bolger & Headon (2014) FLC 93-575
Dickons & Dickons [2012] FamCAFC 154
Pierce & Pierce [1999] FLC 92-844
Clives & Clives [2008] FLC 93-385
Waters & Jurek (1995) FLC 92-635
Clauson and Clauson (1995) FLC 92-595
Lippman & Lippman (2010) FLC 93-349
Antmann & Antmann (1980) FLC 90-908
Merritt & Merritt [2009] FamCAFC 154
Williams & Williams [2007] FamCA 313

Applicant:

MS JONES

Respondent:

MR JONES

File Number:

HBC 1097 of 2007

Judgment of:

Judge Baker

Hearing dates:

11, 12, 13 and 14 March 2014 and

23 and 24 April 2015 and 16 June 2015

Date of Last Submission:

16 June 2015

Delivered at:

Hobart

Delivered on:

7 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr Foster

Solicitors for the Applicant:

Murdoch Clarke

Counsel for the Respondent:

Mr Ayliffe, SC

Solicitors for the Respondent:

Munro & Associates

Counsel for the Independent Children's Lawyer:

Mr P Fitzgerald

Solicitors for the Independent Children's Lawyer:

Legal Aid Commission of Tasmania

ORDERS

The husband relinquish any right title or interest he may have in the following property to the intent that the wife shall be the sole and absolute owner thereof:
(a)The Property G property at Property G;
(b)Property L property at Property L comprised in Certificate of Title number Volume (omitted) Folio (omitted);
(c)Any rental monies accrued on the Property L property;
(d)The Nissan Pathfinder motor vehicle;
(e)The furniture and effects in the wife’s current possession;
(f)The gold holdings in her possession;
(g)The wife’s savings of $4,000.
Within 60 days the husband remove the caveat over the Property L property at his own cost.
Within 60 days the wife transfer to the husband all her right title and interest in the Property B property namely Property B comprised in Certificates of Title Volume (omitted) Folio (omitted); Volume (omitted) Folio (omitted) and Volume (omitted) Folio (omitted).
The wife relinquish any right title or interest she may have in the following property to the intent that the husband shall be the sole and absolute owner thereof:
(a)The plant and equipment in the husband’s possession;
(b)The Mitsubishi and the Toyota motor vehicles in the husband’s possession;
(c)The shares in the husband’s name;
(d)The gold holdings at the (omitted);
(e)The gold held in the…

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 JONES & JONES

Details

AGLC: Jones and Jones [2015] FCCA 2121
Case: [2015] FCCA 2121
Decision Date: 7 August 2015

CaseChat Overview and Summary

In the matter of JONES & JONES, Judge Baker considered a dispute between a husband and wife concerning the division of their property. The proceedings involved the allocation of various assets, including real estate, vehicles, financial holdings, and personal effects, as well as the resolution of associated liabilities.

The court was required to determine how the parties' accumulated property should be divided between them. This involved assessing the respective interests of the husband and wife in a range of assets, including multiple properties, vehicles, plant and equipment, shares, and gold holdings. The court also had to address the allocation of accrued rental monies and existing savings, and determine responsibility for liabilities and ongoing outgoings associated with the properties.

Judge Baker ordered the husband to relinquish his interest in several assets to the wife, including Property G, Property L, rental monies from Property L, a Nissan Pathfinder, furniture and effects in the wife's possession, and her savings of $4,000. The husband was also ordered to remove a caveat over Property L at his own cost. Conversely, the wife was ordered to transfer her interest in Property B to the husband and relinquish her interest in the plant and equipment, two motor vehicles, shares, and gold holdings in the husband's possession or control. Additionally, the husband was ordered to make a cash payment of $369,111 to the wife. Each party was to bear their own liabilities, including taxation, and retain funds in their respective bank accounts, being responsible for debts and outgoings on the properties they retained.

Orders

Orders of the court

The husband relinquish any right title or interest he may have in the following property to the intent that the wife shall be the sole and absolute owner thereof:

(a) The Property G property at Property G;

(b) Property L property at Property L comprised in Certificate of Title number Volume (omitted) Folio (omitted);

(d) The Nissan Pathfinder motor vehicle;

(e) The furniture and effects in the wife’s current possession;

(f) The gold holdings in her possession;

(g) The wife’s savings of $4,000.

Within 60 days the husband remove the caveat over the Property L property at his own cost.

Within 60 days the wife transfer to the husband all her right title and interest in the Property B property namely Property B comprised in Certificates of Title Volume (omitted) Folio (omitted); Volume (omitted) Folio (omitted) and Volume (omitted) Folio (omitted).

The wife relinquish any right title or interest she may have in the following property to the intent that the husband shall be the sole and absolute owner thereof:

(a) The plant and equipment in the husband’s possession;

(b) The Mitsubishi and the Toyota motor vehicles in the husband’s possession;

(d) The gold holdings at the (omitted);

(e) The gold held in the Melbourne safety deposit box.

Within 60 days the husband pay the wife a cash payment of $369,111.

Each party shall be responsible to pay their own liabilities including any taxation liabilities.

Each party shall otherwise retain any funds he or she may have in any bank accounts and be liable for any debts or outgoings on the properties that they retain.

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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