MAAS & HALLS - [2014] FamCA 685

FAMILY COURT OF AUSTRALIA

MAAS & HALLS

[2014] FamCA 685

FAMILY LAW – PROPERTY – where the husband ceased participating in the proceedings during the hearing – where the matter proceeded undefended – where the property of the parties or both of them amounted to a net debt - where the wife made the substantial financial and non-financial contributions during and after the relationship – where the husband made limited financial contributions at the commencement of the relationship and during the relationship– where the wife brought significant assets into the relationship.

Family Law Act 1975 s79, 75

Baglio & Baglio [2013] FamCA 105
Bevan & Bevan [2013] FamCAFC 116
Clauson and Clauson (1995) FLC 92-595
Ferraro & Ferraro (1993) FLC 92-335
Hickey & Hickey (2003) FLC 93-143
Harper & Harper [2013] FamCA 528
Lee Steere & Lee Steere (1985) FLC 91-626
Lovine & Connor and Anor (2012) FLC 93-515
Mallet v Mallet (1984) 156 CLR 605
Pastrikos & Pastrikos (1980) FLC 90-897
Robb and Robb (1995) FLC 92– 555
Stanford and Stanford (2012) 247 CLR 108
Waters & Jurek (1995) FLC 92-635
Watson & Ling [2013] FamCA 57

APPLICANT:

Ms Maas

RESPONDENT:

Mr Halls

FILE NUMBER:

BRC

3460

2012

DATE DELIVERED:

22 August 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

1 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Seaholme

SOLICITOR FOR THE APPLICANT:

Dale & Fallu Solicitors

THE RESPONDENT:

In person before departing shortly after Court resumed after lunch

ORDERS

IT IS ORDERED BY WAY OF FINAL ORDER THAT

The Respondent transfer to the Applicant all his right title and interest in the property situated at 1 B Street, D Town more particularly described as Lot … on … Parish of D Town, County of E and 2 B Street, D Town more particularly described as Lot … on RP … Parish of D Town, County of E in the State of Queensland within thirty (30) days of the date hereof.
The parties do all necessary acts and sign all necessary documents to refinance the mortgage debt due and owing to the National Australia Bank and or the Bank of Queensland in respect of the properties referred to in clause (1) above so that the Respondent is released from all liability in respect of such mortgage debt within thirty (30) days of the date hereof.
In the event that the properties are unable to be refinanced in order to release the Respondent from liability under the existing mortgages in accordance with clause (2) above, then the property situated at 1 B Street, D Town in the State of Queensland be sold by private treaty with such agent or agents selected by the Applicant and at such price determined by the Applicant and, after deducting the costs of sale, including agent’s commission and fees, any net proceeds be paid to the Applicant.
The livestock owned by the parties are to be sold by F Pty Ltd and, after deducting the costs of…

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 MAAS & HALLS

Details

AGLC: MAAS & HALLS [2014] FamCA 685
Case: [2014] FamCA 685
Decision Date: 22 August 2014

CaseChat Overview and Summary

This matter concerned an application for property settlement between the Applicant wife and the Respondent husband. The husband ceased participating in the proceedings during the hearing, and the matter proceeded undefended. The court was required to determine the division of the parties' property, which amounted to a net debt. The wife had made substantial financial and non-financial contributions during and after the relationship, and had brought significant assets into the marriage, while the husband's contributions were limited.

The primary legal issues before the court were how to divide the parties' net debt and how to allocate the various assets, including real property, livestock, and business interests, in a manner that reflected their respective contributions and future needs. The court also had to consider the practicalities of refinancing existing mortgage debt and the sale of certain assets.

In reaching its decision, Hogan J applied the principles of the *Family Law Act 1975* (Cth), particularly in assessing the contributions of each party. Given the husband's non-participation, the court proceeded on the basis of the evidence presented by the wife. The court ordered the husband to transfer his interest in two properties to the wife, and for the parties to take steps to refinance the associated mortgage debt to release the husband from liability. If refinancing was not possible, the wife was to sell one of the properties. Livestock were to be sold, with net proceeds applied to specific debts. The court then detailed the division of other assets, including the husband retaining his share of a property sale, personal injury proceeds, superannuation, and all property held by I Pty Ltd, while the wife retained her superannuation, insurance entitlements, and other property, with the exception of her shareholding in I Pty Ltd, which was to be transferred to the husband. The court also appointed a Registrar to sign documents if a party failed to do so.

Orders

Orders of the court

IT IS ORDERED BY WAY OF FINAL ORDER THAT

The Respondent transfer to the Applicant all his right title and interest in the property situated at 1 B Street, D Town more particularly described as Lot … on … Parish of D Town, County of E and 2 B Street, D Town more particularly described as Lot … on RP … Parish of D Town, County of E in the State of Queensland within thirty (30) days of the date hereof.

The parties do all necessary acts and sign all necessary documents to refinance the mortgage debt due and owing to the National Australia Bank and or the Bank of Queensland in respect of the properties referred to in clause (1) above so that the Respondent is released from all liability in respect of such mortgage debt within thirty (30) days of the date hereof.

In the event that the properties are unable to be refinanced in order to release the Respondent from liability under the existing mortgages in accordance with clause (2) above, then the property situated at 1 B Street, D Town in the State of Queensland be sold by private treaty with such agent or agents selected by the Applicant and at such price determined by the Applicant and, after deducting the costs of sale, including agent’s commission and fees, any net proceeds be paid to the Applicant.

The livestock owned by the parties are to be sold by F Pty Ltd and, after deducting the costs of transport and agent’s fees, the net proceeds are to be distributed by the Applicant at her discretion in repayment of the parties’ debts due and owing to the National Australia Bank, Capital Finance or AGCO.

The Respondent retain as his own absolute property his share of the proceeds of the sale of H Town Street, H Town in the State of Queensland, the net proceeds received from his personal injuries claim, his entitlement to superannuation, any insurance entitlements and benefits and all other property in his possession or under his control including motor vehicles, bank accounts, any shareholdings, boat and accessories, furniture and chattels, plant, equipment and contents owned by I Pty Ltd.

The Applicant retain as her own absolute property her entitlement to superannuation, any insurance entitlements and benefits and all other property in her possession or under her control including motor vehicles, bank accounts, her shareholding in J Pty Ltd, furniture and chattels, plant and equipment currently in her possession or located on the property situated at 1 B Street, D Town in the State of Queensland.

The Applicant transfer to the Respondent, within a period of thirty (30) days, all her interest and shareholding in I Pty Ltd.

The Applicant retain as her own absolute property the 20 foot container and the cattle and pig brands.

Each party sign all relevant documents and do all necessary things to give effect or to transfer property to the entitled party in accordance with this Order within seven (7) days of a written request to do so.

10.

Should either party fail to sign any documents necessary to implement this Order, a Registrar of the Court is appointed pursuant to s106A(1) of the Family Law Act 1975 (Cth) to sign any such document in lieu of the non-signing party.

11.

All extant Applications are dismissed.

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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