FAMILY COURT OF AUSTRALIA
| MACGUIRE & MACGUIRE AND ORS | [2018] FamCA 750 |
| FAMILY LAW – PROPERTY – Final orders – Where the wife and husband have been married for 18 years – Where they each brought properties into the marriage – Where the wife acquired an interest in a number of properties during the marriage together with her parents – Where the husband made improvements to the property of the parties during the marriage – Where post separation the wife continued to have primary care of the children – Where there has been a lengthy post separation period from 2008 to the hearing in 2016 – Where the wife made greater financial contributions and greater contributions as parent and homemaker during the marriage and following separation – Where the husband made greater non-financial contributions through improvements to the property – Where contributions are assessed to be 57.5 per cent in favour of the wife. FAMILY LAW – PROPERTY – Equity – Where the husband asserts that he holds an equitable interest in a property legally owned by the wife and her parents due to representations made by the wife and her father during the marriage – Where the husband argues that due to a reliance on these representations he made improvements to the property – Where there is insufficient evidence that those representations were made – Where the husband did not contribute to the purchase of the property and has no legal interest in the property. FAMILY LAW – PROPERTY – Where the wife holds a one-quarter legal interest in a property and argues that she holds this interest on trust for her parents – Where the wife’s parents hold a legal interest in the remaining three-quarters of the property – Where the wife says that she did not contribute to the deposit or the mortgage repayments – Where there is insufficient evidence to rebut the presumption of advancement – Where the Court is satisfied that the wife’s legal interest should be reflected in the balance sheet. |
| Child Support (Registration and Collection) Act 1988 (Cth) Family Law Act 1975 (Cth) ss 75, 79, 81 |
| Brown v Brown (1993) 31 NSWLR 582 Callaghan v Callaghan (1995) 64 SASR 396 Calverley v Green (1984) 155 CLR 242 Cerini & Cerini [1998] FamCA 143 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 Dullow v Dullow (1985) 3 NSWLR 531 Jones v Dunkel (1959) 101 CLR 298 Nelson v Nelson (1995) 184 CLR 538 Ramsden v Dyson (1866) LR 1 HL 129 Stanford v Stanford (2012) 247 CLR 108 | ||
| APPLICANT: | Ms Macguire | |
| FIRST RESPONDENT: | Mr Macguire |
| SECOND RESPONDENT: | Mr Birtles |
| THIRD RESPONDENT: | Ms Birtles |
| FILE NUMBER: | PAC | 4818 | of | 2011 |
| DATE DELIVERED: | 21 September 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 1 – 5 August 2016, 23 August 2016, |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton SC |
| SOLICITOR FOR… |
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- AGLC
- Macguire and Macguire & Ors [2018] FamCA 750
- Case
- [2018] FamCA 750
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were to determine the extent of each party's contributions, both financial and non-financial, to the acquisition, conservation, and improvement of the parties' property, as well as contributions to the welfare of the family. The court also had to assess whether the husband had established an equitable interest in the property held by the wife and her parents, and whether the wife's legal interest in that property, held with her parents, should be reflected in the property pool. The court was guided by section 79 of the *Family Law Act 1975* (Cth), which mandates consideration of various contributions and other relevant factors when altering property interests, and the overarching requirement that any order made must be just and equitable.
The court found that the wife had made greater financial contributions and greater contributions as a parent and homemaker during the marriage and post-separation, while the husband's non-financial contributions through property improvements were also acknowledged. Consequently, the court assessed contributions as being 57.5 per cent in favour of the wife. Regarding the husband's claim to an equitable interest in the property held by the wife and her parents, the court found insufficient evidence of the alleged representations and that the husband had not contributed to the purchase or mortgage. The court also determined that the wife's legal interest in the property held with her parents should be reflected in the balance sheet, as there was insufficient evidence to rebut the presumption of advancement.
The court ordered the wife to transfer a property at B Street, Suburb C, to the husband within 28 days. Simultaneously, the husband was to discharge the mortgage on that property and indemnify the wife. The parties were to retain sole beneficial ownership of their respective possessions, including vehicles, jewellery, household effects, bank accounts, shares, and other assets, and were to be solely responsible for their own debts and liabilities, except as otherwise provided. The Registrar of the Family Court was appointed to execute any necessary documents if a party refused to do so. The applications and responses of the wife, husband, and the second and third respondents were otherwise dismissed.
Orders
Orders of the court
1.
Within 28 days from the date of these Orders the wife do all acts and things and sign all documents to transfer to the husband the property at B Street, Suburb C (“the property”), more fully described as folio identifier … (“the transfer”).
2.
Simultaneously with the transfer in Order 1, the husband do all acts and things and sign all documents to discharge the mortgage to Westpac Banking Corporation registered number … and indemnify the wife in relation thereto.
3.
Until the transfer the parties continue to use the rental proceeds on the property to pay for mortgage and outgoings and following the transfer the husband be solely entitled to the rental proceeds received on the property and be solely liable for the mortgage payments, rates, taxes and all other outgoings on the property.
4.
Save as is otherwise provided for in these Orders the wife and husband are declared to be the sole and beneficial owners of their interests in:
(a) any motor vehicle in her or his possession;
(b) jewellery in her or his possession;
(c) furniture and household effects in her or his possession;
(d) money in bank accounts in her or his name;
(e) any shares in her or his name; and
(f) all other assets real and personal, financial resources and superannuation entitlements in her of his possession or ownership.
5.
Except as these Orders provide to the contrary, the wife be responsible for, and indemnify and keep indemnified the husband in relation to, all debts and liabilities in her name (or jointly with any other person or entity).
6.
Except as these Orders provide to the contrary, the husband be responsible for, and indemnify and keep indemnified the wife in relation to, all debts and liabilities in his name (or jointly with any other person or entity).
7.
In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to all or any of the Orders made herein, then the Registrar of the Family Court shall be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument and do all acts and things necessary to give validity and operation to the said deed or instrument.
8.
The applications and responses of the wife, husband and the second and third respondents are otherwise dismissed.
9.
Leave is granted to the parties to apply within 21 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these Orders.
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In the context of these proceedings, s 79 of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:79 Alteration of property interests(1)In property settlement proceedings, the court may make such order as it considers appropriate:(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or…including:(c)an order for a settlement of property in substitution for any interest in the property; and(d)an order requiring:(i)either or both of the parties to the marriage; ……to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.…(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and(e)the matters referred to in subsection 75(2) so far as they are relevant; and(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage. These proceedings do not involve any controversy about the preliminary aspect of the requirement said to be created by s 79(2), as to whether there should be any property settlement order. As was observed in Stanford v Stanford (2012) 247 CLR 108 that the preliminary, just and equitable requirement is often readily satisfied. Here, neither of the parties to the marriage seeks that the existing financial arrangements should continue unchanged. They have both invoked s 79, seeking a change in property interests. I note the exhortation in s 81 to, as far as practicable, “make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them”. It is just and equitable that the wife and husband have relief under s 79.