MACKINTOSH & GREER - [2012] FamCA 55

FAMILY COURT OF AUSTRALIA

MACKINTOSH & GREER

[2012] FamCA 55

FAMILY LAW - PROPERTY SETTLEMENT – final orders – adjustment of property interests – whether a global or asset by asset approach was appropriate in the circumstances – where the husband brought substantial assets into the marriage – where the marriage was of a short duration – where a global approach was appropriate in the circumstances having regard to the financial and non-financial contributions of the wife during the marriage – where the husband sought to include a substantial liability into the asset pool – where the Court was not satisfied of the existence or the enforceability of such a liability – where the contributions were assessed at 75:25 in favour of the husband – no adjustment made upon consideration of s 75(2) factors.

Family Law Act 1975 (Cth) ss 75(2) & 79

Biltoft and Biltoft (1995) FLC 92-614
Norbis and Norbis (1986) 161 CLR 513

APPLICANT:

Ms Mackintosh

RESPONDENT:

Mr Greer

FILE NUMBER:

ADC

2242

2009

DATE DELIVERED:

15 February 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

2-6 May 2011; 30 May 2011; 1-2 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Berman, SC, with Ms Chapman SC

SOLICITOR FOR THE APPLICANT:

Howe Martin & Associates

COUNSEL FOR THE RESPONDENT:

Mr Whitington, QC, with Mr McGinn

SOLICITOR FOR THE RESPONDENT:

Barnes Brinsley & Shaw

Orders

On or before 30 April 2012 the husband do all necessary acts and things and sign all necessary documents to transfer to the wife all his right title and interest in the property known as and situated at … G Street in R in the State of South Australia (“the R property”) being Certificate of Title Register Book Volume … Folio … PROVIDED THAT upon or prior to compliance by the husband with the said transfer the wife shall pay all monies and do all things necessary to discharge the joint mortgage over the R property and thereafter exonerate the husband from any liability in relation to the said R property.
On or before 30 April 2012 the husband shall pay to the wife the sum of ONE MILLION SIX HUNDRED AND SIXTY FIVE THOUSAND TWO HUNDRED AND THIRTY EIGHT DOLLARS [$1,665,238.00].
Save as herein provided the husband and wife be solely, legally and beneficially entitled to the exclusion of the other to all real and personal property of whatsoever kind and nature in their respective ownership, possession and/or control at this date, including but not limited to, any money on deposit, shareholdings, insurance policies, superannuation entitlements, motor vehicles, real estate, furniture and personal effects.
Save as to costs all applications are dismissed.
Remove all matters from the pending list.

Liberty to apply for consequential orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mackintosh & Greer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

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 MACKINTOSH & GREER

Details

AGLC: MACKINTOSH & GREER [2012] FamCA 55
Case: [2012] FamCA 55
Decision Date: 15 February 2012

CaseChat Overview and Summary

In the matter of *Mackintosh & Greer*, Dawe J considered an application for final orders regarding the adjustment of property interests between a husband and wife. The dispute arose in the context of a property settlement following a marriage of short duration, where the husband had introduced substantial assets into the relationship.

The primary legal issues before the court were whether a global or asset-by-asset approach was appropriate for determining the property adjustment, and how to treat a substantial liability the husband sought to include in the asset pool. The court also had to consider the financial and non-financial contributions of both parties during the marriage and the impact of section 75(2) factors.

Dawe J determined that a global approach was appropriate given the circumstances, particularly the wife's contributions during the marriage. The court was not satisfied as to the existence or enforceability of the liability the husband sought to include, and therefore did not incorporate it into the asset pool. After assessing the contributions, the court found them to be 75% in favour of the husband, and no further adjustment was made after considering the section 75(2) factors.

The court ordered that the husband transfer his interest in a property at G Street, R, South Australia, to the wife, provided she discharged the joint mortgage and exonerated the husband from liability. Additionally, the husband was ordered to pay the wife a sum of $1,665,238.00. Save for these provisions and costs, each party was to retain their respective property, and all other applications were dismissed.

Orders

Orders of the court

On or before 30 April 2012 the husband do all necessary acts and things and sign all necessary documents to transfer to the wife all his right title and interest in the property known as and situated at … G Street in R in the State of South Australia (“the R property”) being Certificate of Title Register Book Volume … Folio … PROVIDED THAT upon or prior to compliance by the husband with the said transfer the wife shall pay all monies and do all things necessary to discharge the joint mortgage over the R property and thereafter exonerate the husband from any liability in relation to the said R property.

On or before 30 April 2012 the husband shall pay to the wife the sum of ONE MILLION SIX HUNDRED AND SIXTY FIVE THOUSAND TWO HUNDRED AND THIRTY EIGHT DOLLARS [$1,665,238.00].

Save as herein provided the husband and wife be solely, legally and beneficially entitled to the exclusion of the other to all real and personal property of whatsoever kind and nature in their respective ownership, possession and/or control at this date, including but not limited to, any money on deposit, shareholdings, insurance policies, superannuation entitlements, motor vehicles, real estate, furniture and personal effects.

Save as to costs all applications are dismissed.

Remove all matters from the pending list.

Liberty to apply for consequential orders.

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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