May and May and Anor - [2017] FCCA 403

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAY & MAY & ANOR

[2017] FCCA 403

Catchwords:
FAMILY LAW – Property – lengthy marriage and lengthy period of separation – assessment of contributions – whether the husband’s contributions exceeded the wife’s because of an inheritance he received or whether the husband’s handling of his father’s estate meant that the inheritance was of no net value to the parties – treatment of the wife’s (omitted) Superannuation entitlement – where the wife is retired and is in receipt of a pension - where the capitalised value of the entitlement is a significant item of the pool – where the wife cannot commute her pension but where if a splitting order is made the husband can cash out his entitlement – where the husband proposes a splitting order and the wife proposes that she retain her superannuation untouched and that the husband receive other assets in the pool – wife’s proposal generous to the husband – orders made in accordance with wife’s proposal.

Legislation:

Family Law Act 1975, ss.75, 79

Family Law (Superannuation) Regulations

Cahill & Cahill (2006) FLC 93-253
C & C (2005) FLC 93-220
Semperton & Semperton (2012) 47FamLR 626
Stanford & Stanford (2012) HCA 52
Welch & Abney (2016) FamCAFC 271

Applicant:

MR MAY

First Respondent:

MS MAY

Second Respondent:

MS H MAY

File Number:

NCC 2772 of 2014

Judgment of:

Judge Terry

Hearing dates:

18 & 19 July 2016

Date of Last Submission:

19 July 2016

Delivered at:

Wauchope

Delivered on:

10 March 2017

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Mr Levick

Solicitors for the First Respondent:

Turnbull Hill Lawyers

The Second Respondent:

In person

ORDERS

The wife and the second respondent shall within 42 days of the date of these orders do all acts and things required to transfer to the husband at the expense of the husband the whole of their right title and interest in Property W in the state of New South Wales being the whole of the land in Certificate of Folio Identifier Lot 1, Deposited Plan (omitted) (“the property”).
The husband shall indemnify the wife and the second respondent and keep them indemnified from liability for outgoings including council rates in respect of the Property W property.
Contemporaneously with the transfer in accordance with Order (1):
(a)The wife shall do all acts and things and sign all documents required to transfer to the second respondent a 42.2% interest in the property known as Property D being the whole of the land contained in Certificate of Title Folio Identifier (omitted) (“the Property D property”).
(b)The wife shall indemnify the second respondent and forever keep her indemnified from liability for outgoings in respect of the Property D property and any liability in respect of any mortgage or charge thereon.
The application by the second respondent is otherwise dismissed.
The husband and wife are each declared the owner of all other property and superannuation in their possession or under their control.
In the event…

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 May and May and Anor

Details

AGLC: May and May and Anor [2017] FCCA 403
Case: [2017] FCCA 403
Decision Date: 10 March 2017

CaseChat Overview and Summary

In *May and May and Anor*, heard by Judge Terry, the dispute concerned the division of property between a husband and wife, with a second respondent also involved. The court was required to make orders regarding the transfer of interests in two properties, Property W and Property D, and to determine the ownership of all other assets and superannuation held by the husband and wife.

The central legal issues before the court were how to equitably divide the matrimonial assets, specifically the ownership and transfer of Property W and Property D, and to make final declarations regarding the remaining property and superannuation of the parties. The court also had to consider the role and interests of the second respondent in relation to these assets.

Judge Terry ordered the wife and the second respondent to transfer their entire interest in Property W to the husband, at the husband's expense, within 42 days. The husband was to indemnify the wife and second respondent against all outgoings related to Property W. Concurrently, the wife was to transfer a 42.2% interest in Property D to the second respondent, and indemnify the second respondent against all outgoings and liabilities concerning Property D. The application by the second respondent was otherwise dismissed. The husband and wife were each declared the owner of all other property and superannuation in their possession. The Registrar of the Federal Circuit Court was appointed to execute any necessary documents if a party refused or was unable to do so.

Orders

Orders of the court

The wife and the second respondent shall within 42 days of the date of these orders do all acts and things required to transfer to the husband at the expense of the husband the whole of their right title and interest in Property W in the state of New South Wales being the whole of the land in Certificate of Folio Identifier Lot 1, Deposited Plan (omitted) (“the property”).

The husband shall indemnify the wife and the second respondent and keep them indemnified from liability for outgoings including council rates in respect of the Property W property.

Contemporaneously with the transfer in accordance with Order (1):

(a) The wife shall do all acts and things and sign all documents required to transfer to the second respondent a 42.2% interest in the property known as Property D being the whole of the land contained in Certificate of Title Folio Identifier (omitted) (“the Property D property”).

(b) The wife shall indemnify the second respondent and forever keep her indemnified from liability for outgoings in respect of the Property D property and any liability in respect of any mortgage or charge thereon.

The application by the second respondent is otherwise dismissed.

The husband and wife are each declared the owner of all other property and superannuation in their possession or under their control.

In the event that any party refuses or neglects or is unable to execute any instrument or document being an instrument or document the execution of which is provided for in these orders or is necessary to put into effect the provisions of these orders then at the request of the other party the Registrar of the Federal Circuit Court of Australia is appointed pursuant to Section 106A to execute any such instrument or document in the name of the party refusing or neglecting or being unable to so execute the instrument or document.

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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