McBurney and Reddy - [2013] FCCA 395

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCBURNEY & REDDY

[2013] FCCA 395

Catchwords:
FAMILY LAW — Whether some amounts of money withdrawn by parties from joint bank account should be added back — whether disparity in incomes requiring a substantial adjustment — whether wife should retain matrimonial home subject to discharging the mortgage and the husband retaining all superannuation without further payment.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79, 79(1), 79(2), 79(4)

Stanford v Stanford [2012] HCA 52

Hickey [2003] FamCA 395 FLC 93-143
C&C [2005] FamCA 429 FLC 93-220
NHC & RCH [2004] FamCA 633
Marker [1998] FamCA 42
C&C [1998] FamCA 143
Pierce & Pierce [1998] FamCA 74

Applicant:

MS MCBURNEY

Respondent:

MR REDDY

File Number:

DGC 1996 of 2012

Judgment of:

Judge Phipps

Hearing dates:

15 & 17 April 2013

Date of Last Submission:

22 April 2013

Delivered at:

Dandenong

Delivered on:

31 May 2013

REPRESENTATION

Counsel for the Applicant:

Dr R Ingleby

Solicitors for the Applicant:

Macpherson & Kelley Lawyers Pty Ltd

Counsel for the Respondent:

Ms M Smallwood

Solicitors for the Respondent:

Taussig Cherrie Fildes

ORDERS

That on or before the 30 July 2013 (the date) the wife refinance the mortgage over Property C, (the real property), and discharge the existing mortgage so that the husband has no further liability under the existing mortgage or any future mortgage.
Upon the wife refinancing the mortgage in accordance with paragraph 1 the husband transfer to the wife all his right title and interest in the real property.
That in the event that the wife does not by the date refinance the mortgage over the real property in accordance with paragraph 1 then the parties do all things necessary to sell the property by an estate agent to be agreed and if not agreed by an estate agent nominated by the President for the time being of the Real Estate Institute of Victoria or his or her nominee. If the parties do not agree on the method of sale the real property be sold in a manner determined by the agreed or appointed real estate agent at a reserve price nominated by the wife. Upon completion of the sale the proceeds of the sale be applied:
(a)firstly to pay all costs, commissions and expenses of the sale;
(b)secondly to discharge the mortgage and any encumbrance affecting the real property;
(c)thirdly the balance to the wife.
The husband will take delivery of and be entitled to retain the following:
(i)     (omitted) BBQ with cover;
(ii)    garden solar lights;
(iii)     fishing tackle and rods;
(iv)   extension ladder;
(v)    red and silver canvas painting;
(vi)   sports memorabilia as follows:
I.two signed footballs;
II.two signed mini cricket bats; and
III.signed cricket ball;
(vii)   portable children’s pool.
That unless otherwise specified in these orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in 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 McBurney and Reddy

Details

AGLC: MCBURNEY & REDDY [2013] FCCA 395
Case: [2013] FCCA 395
Decision Date: 31 May 2013

CaseChat Overview and Summary

This matter concerned orders made by Judge Phipps in relation to property settlement between a husband and wife. The dispute centred on the division of a jointly owned property and other assets.

The court was required to determine the terms of the property settlement, specifically how the matrimonial home would be dealt with, the distribution of personal property, and the allocation of liabilities. The orders addressed the refinancing of a mortgage, the transfer of interest in the property, and the potential sale of the property if refinancing did not occur.

The court ordered that the wife was to refinance the mortgage over the property by a specified date, thereby discharging the husband from any liability. Upon successful refinancing, the husband was to transfer his interest in the property to the wife. If the wife failed to refinance by the due date, the property was to be sold, with the proceeds applied first to sale costs, then to discharge the mortgage, and any remaining balance to the wife. The husband was also to retain specific items of personal property, and each party was to be solely entitled to other property in their possession, with a specific deeming of possession for chattels within the real property. Each party was to forgo claims to the other's superannuation and be solely liable for any liabilities encumbering property they received.

Orders

Orders of the court

That on or before the 30 July 2013 (the date) the wife refinance the mortgage over Property C, (the real property), and discharge the existing mortgage so that the husband has no further liability under the existing mortgage or any future mortgage.

Upon the wife refinancing the mortgage in accordance with paragraph 1 the husband transfer to the wife all his right title and interest in the real property.

That in the event that the wife does not by the date refinance the mortgage over the real property in accordance with paragraph 1 then the parties do all things necessary to sell the property by an estate agent to be agreed and if not agreed by an estate agent nominated by the President for the time being of the Real Estate Institute of Victoria or his or her nominee. If the parties do not agree on the method of sale the real property be sold in a manner determined by the agreed or appointed real estate agent at a reserve price nominated by the wife. Upon completion of the sale the proceeds of the sale be applied:

(a) firstly to pay all costs, commissions and expenses of the sale;

(b) secondly to discharge the mortgage and any encumbrance affecting the real property;

The husband will take delivery of and be entitled to retain the following:

(i) (omitted) BBQ with cover;

(ii) garden solar lights;

(iii) fishing tackle and rods;

(iv) extension ladder;

(v) red and silver canvas painting;

(vi) sports memorabilia as follows:

I. two signed footballs;

II. two signed mini cricket bats; and

III. signed cricket ball;

(vii) portable children’s pool.

That unless otherwise specified in these orders:

(a) each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the wife);

(b) each party forgo any claims they may have to any superannuation benefits belonging to or in the name of the other;

(c) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders.

Otherwise all extant applications are dismissed.

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

Full text does not contain this section.