Mathers and Garver and Ors - [2019] FCCA 116

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATHERS & GARVER & ORS

[2019] FCCA 116

Catchwords:
FAMILY LAW – Alteration of property interests – whether it is just and equitable to make an order – assessment of contribution and future needs – credit issues – form of order to be finalised once expert evidence obtained.

Legislation:

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

Cases cited:

Bevan & Bevan [2013] FamCAFC 116
Calvin & McTier [2017] FamCAFC 125
Chancellor & McCoy [2016] FamCAFC 256
Chorn & Hopkins (2004) FLC 93-204
Guzniczak & Rogala [2017] FamCA 758
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395
Nimett & Estate of Nimett [2007] FamCA 1189
Stanford & Stanford [2012] HCA 52

Vass & Vass [2015] FamCAFC 51

Applicant:

MS MATHERS

First Respondent:

MR GARVER

Second Respondent:

OFFICIAL TRUSTEE IN BANKRUPTCY FOR THE ESTATE OF MR MATHERS

Third Respondent:

MATHERS HOLDINGS PTY LIMITED

File Number:

WOC 854 of 2014

Judgment of:

Judge Altobelli

Hearing dates:

3-4 May 2018

Date of Last Submission:

5 October 2018

Delivered at:

Wollongong

Delivered on:

25 January 2019

REPRESENTATION

Senior Counsel for the Applicant:

Mr McInerney SC

Junior Counsel for the Applicant:

Mr Harper

Solicitors for the Applicant:

DGB Lawyers

Senior Counsel for the First and Third Respondents:

Ms Gillies SC

Junior Counsel for the First and Third Respondents:

Ms Sproston

Solicitors for the First and Third Respondents:

Solicitors for the Second Respondent:

Turner Freeman Lawyers

No appearance

ORDERS

Leave be granted to the parties to file Orders in Chambers.
The parties have liberty to relist the matter on 7 days’ notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 854 of 2014

MS MATHERS

Applicant

And

MR GARVER

First Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY FOR THE ESTATE OF MR MATHERS

Second Respondent

MATHERS HOLDINGS PTY LIMITED

Third Respondent

REASONS FOR JUDGMENT

These Reasons for Judgment explain the Orders that the Court has made altering the property interests between the parties to these proceedings.

Background

Unless otherwise indicated, the matters set out below represent findings that the Court has made.
The Husband in this case, Mr Mathers, was born on …1935 and died …2015, after the commencement of the present proceedings. He was 80 years old at the time of his death. The Applicant in this case was his wife, Ms Mathers. She was born …1951 and is currently 67 years old. The other significant person in this case is Mr Garver. He was born on …1972 and will be nearly 47 years old by the time these Reasons for Judgment are published. He is the legal personal representative of the estate of the late Husband, and is the First Respondent in this case.
The Husband and the Wife married and commenced cohabitation on …1983. A significant issue in this case is what property was owned by either 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.

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Details

Case: [2019] FCCA 116
Decision Date: 25 January 2019

CaseChat Overview and Summary

In the Family Court of Australia, Judge Altobelli considered a dispute between Mathers and Garver and other parties concerning the alteration of property interests. The central issue was whether it would be just and equitable to make an order regarding the division of property, taking into account the parties' contributions and future needs, as well as credit issues.

The court was required to determine the appropriate approach to assessing the parties' contributions, both financial and non-financial, and to consider their respective future needs in light of the evidence presented. Furthermore, the court needed to address specific credit issues that arose during the proceedings, which would impact the final division of assets.

Given the need for further expert evidence to fully inform the assessment of contributions and future needs, the court determined that the final form of the property orders could not be made at that stage. Consequently, the court granted leave for the parties to file proposed orders in Chambers and reserved liberty to relist the matter on seven days' notice, indicating that the final resolution would be contingent upon the receipt and consideration of the outstanding expert evidence.

Orders

Orders of the court

Leave be granted to the parties to file Orders in Chambers.

The parties have liberty to relist the matter on 7 days’ notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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