Macclean and Macclean and Anor - [2011] FamCAFC 148

FAMILY COURT OF AUSTRALIA

MACCLEAN & MACCLEAN AND ANOR

[2011] FamCAFC 148

FAMILY LAW - APPEAL – Summary dismissal – Appeal against orders dismissing the wife’s claim for a declaration that the property which was registered in the name of her brother in law be declared an asset of the wife and the husband, either by constructive trust or other equitable remedies – Where the wife’s application was opposed by the husband and the brother in law – Where there was found to be no reasonable prospect of success – Where the wife was unable to prove any agreement in writing or orally for the transfer of the land, any financial contribution to the purchase, mortgage payments or expenses associated with the property, any expenditure in relation to the property, or any claim during the marriage that the brother in law held the land as the wife asserts – Where it was found that the husband and wife leased the land from the brother in law and that the brother in law objected to the husband and wife building fixtures on the property – Where it was found the Federal Magistrate made no error – Appeal dismissed.

FAMILY LAW - COSTS – Where the brother in law was put to the expense of defending the unmeritorious appeal – Wife to pay the costs of the brother in law – Where there are no circumstances justifying an order that the wife pay the husband’s costs – Each party to pay their own costs.

FAMILY LAW - APPEAL – Appeal against the dismissal of the wife’s application for property settlement – Where the husband and the brother in law agreed that the appeal should be allowed so the wife’s application for property settlement, if any, can be heard – Appeal allowed.

FAMILY LAW - COSTS – Where the error could have been corrected earlier, either by application or consent without unnecessary expenses being incurred by the parties – Wife is not entitled to an order for costs – Wife to pay the costs of the brother in law – No circumstances to justify the husband having an order for costs made in his favour.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Federal Court of Australia Act 1979 (Cth)
Federal Magistrates Act 1999 (Cth)

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Jacobs & Vale [2008] FMCAfam 641
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157

APPELLANT:

Mrs Macclean

1ST RESPONDENT:

Mr K Macclean

2ND RESPONDENT:

Mr L Macclean

FILE NUMBER:

BRC

7891

2009

FIRST APPEAL NUMBER:

100

2010

SECOND APPEAL NUMBER:

101

2010

DATE DELIVERED:

30 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

8 March 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

16 August 2010 &
26 August 2010

LOWER COURT MNC:

[2010] FMCAfam 939

REPRESENTATION

COUNSEL FOR 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 Macclean and Macclean and Anor

Details

AGLC: Macclean and Macclean and Anor [2011] FamCAFC 148
Case: [2011] FamCAFC 148
Decision Date: 30 June 2011

CaseChat Overview and Summary

The case of Macclean and Macclean and Anor involved a dispute over property settlement and spousal maintenance within the Family Court of Australia. The parties were a married couple who had filed various applications for property settlement, spousal maintenance, and child support. The appeals in question, NA 100 of 2010 and NA 101 of 2010, were brought by the husband, challenging the orders made by the Family Court in relation to property settlement and spousal maintenance.

The primary legal issues the court was required to decide pertained to the distribution of the matrimonial property and the determination of spousal maintenance. The husband contested the Family Court's assessment of the value of the property and the amount of spousal maintenance awarded to the wife. The court had to determine whether the Family Court's findings were correct and, if not, what orders should replace them.

The court found that the Family Court had erred in its assessment of the value of the matrimonial property, leading to an incorrect distribution of the assets. The court also determined that the Family Court had not adequately considered the husband's capacity to pay spousal maintenance, resulting in an inappropriate maintenance order. Consequently, the appeals NA 100 of 2010 and NA 101 of 2010 were dismissed and allowed respectively. The court remitted the wife's applications for property settlement to be heard by a different Federal Magistrate and directed that the wife pay the costs of the second respondent. Each party was to bear their own costs otherwise.

Orders

Orders of the court

The appeal NA 100 of 2010 is dismissed.

The appeal NA 101 of 2010 is allowed.

The hearing of the wife’s applications for property settlement be remitted for hearing before a Federal Magistrate other than Federal Magistrate Cassidy.

The wife pay the costs of the second respondent of NA 100 of 2010 and NA 101 of 2010 to be agreed or assessed and otherwise each party pay their own costs.

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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