LANIGA & CARRON - [2018] FCCA 2613

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANIGA & CARRON

[2018] FCCA 2613

Catchwords:
FAMILY LAW – Property – Shaw v Shaw considerations – where repairs to matrimonial home not effected by Husband – where Husband had lived in home to the exclusion of wife – where value of home had diminished thereby – where splitting order made.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79(4)

Cases cited:

Dixons & Dixons (2012) 50 FAM LR 244
Money & Money (1994) FLC 92-485
Pierce & Pierce (1998) FamCA 74
Shaw & Shaw (1989) FLC 92-010
Wallis & Manning (2017) FLC 93-759

Applicant:

MS LANIGA

Respondent:

MR CARRON

File Number:

BRC 9038 of 2016

Judgment of:

Judge Egan

Hearing date:

14 June 2018

Date of Last Submission:

14 June 2018

Delivered at:

Brisbane

Delivered on:

13 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr James

Solicitors for the Applicant:

ABKJ Lawyers

Respondent:

Self-Represented

IT IS ORDERED UNTIL FURTHER ORDER:

Based upon a total asset pool of $1,343,539 the wife is to receive the benefit of a property adjustment to the value of $688,946.
Each party shall provide a copy of a proposed final order (which they assert ought to be made) to the other party by 4.00pm on 14 September 2018.
The parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment). If no agreement is able to be reached then each of the parties is to send to each other party, and to the court, three (3) proposed orders setting out their three (3) best positions on or before 12.00pm on 17 September 2018.
That if by 12.00pm Monday 17 September 2018 the parties are unable to reach an agreed position in relation to the wording of the Final Order the matter shall be listed for handing down of final orders on 19 September 2018.

IT IS NOTED:

A.That it is intended that in respect of the order in paragraph 1 that no splitting order will be made in respect of the superannuation interests of either party unless there is agreement to do so.

IT IS NOTED that publication of this judgment under the pseudonym Laniga & Carron is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9038 of 2016

MS LANIGA

Applicant

And

MR CARRON

Respondent

REASONS FOR JUDGMENT

Before me is an application for property adjustment orders filed on behalf of the applicant wife on 20 October 2016 by way of an amended initiating application. The orders sought by the wife, as later refined in submissions made after trial, were contained in paragraphs 22 to 28 inclusive of that amended initiating application. The husband filed a response on 30 September 2016. The orders sought by him are contained in paragraphs 20 to 25 inclusive of that response. The parties met in 1997 and married on 1998.
They separated in 2015. There are two children of 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 LANIGA & CARRON

Details

AGLC: LANIGA & CARRON [2018] FCCA 2613
Case: [2018] FCCA 2613
Decision Date: 13 September 2018

CaseChat Overview and Summary

The parties to this proceeding were Laniga and Carron, with Egan J presiding in the Family Court of Australia. The dispute concerned the division of matrimonial property, specifically the matrimonial home. The wife alleged that the husband had failed to effect necessary repairs to the home, leading to a diminution in its value. Furthermore, the husband had occupied the home to the exclusion of the wife.

The central legal issue before the court was how to account for the diminished value of the matrimonial home, caused by the husband's failure to maintain it and his exclusive occupation, when making a property settlement order. The court was required to consider the principles applicable to property division in family law matters, particularly in light of the husband's conduct.

Egan J applied the considerations outlined in *Shaw v Shaw*, which require a court to have regard to the contributions of the parties, their financial resources, and the needs of the parties and any children. In this instance, the court found that the husband's failure to maintain the property and his exclusive occupation had negatively impacted its value. Consequently, the court made a splitting order in relation to the matrimonial home, reflecting these circumstances.

Orders