McConachie and McConachie - [2007] FamCA 754

FAMILY COURT OF AUSTRALIA

MCCONACHIE & MCCONACHIE

[2007] FamCA 754

FAMILY LAW - PROPERTY SETTLEMENT - Written agreement between the parties subsequent to separation - Parties carried into effect most of the terms of the agreement - Global or asset-by-asset approach to contribution - Weight to be given to initial contribution many years before - Contributions during and after the marriage and after the written agreement - Loan by husband's father in writing to the husband early in the marriage but not likely to be collected now - Issue of the statute of limitations and the defence thereunder - section 75(2) factors including husband a director of company with girlfriend but not shareholder and access to loan account facilities - Long marriage

Family Law Act 1975 (Cth)

Aleksovski (1996) FLC 92-705; 20 Fam LR 894
Browne v Greeen (2002) FLC 93-115; 29 Fam LR 429
Commonwealth of Australia v Verwayen (1990) 70 CLR 394
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143; 30 Fam LR 355
In the Marriage of Petersens (1981) FLC 91-095; (1981) 7 Fam LR 402
Kowaliw (1981) FLC 91-092
M and M (1998) FamCA 42
Money (1994) FLC 92-485
Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712
Ogilvie v Adams (1981) VR 1041
Pierce (1998) FLC 92-844
Woodcock and Woodcock (1997) FLC 92-739; 21 Fam LR 393
Woodland and Todd (2005) FLC 93-217; (2005) 33 Fam LR 177
Zalewski (2005) FLC 93-241; (2006) Fam LR 296

APPLICANT:

MRS MCCONACHIE

RESPONDENT:

MR MCCONACHIE

FILE NUMBER:

MLF

2424

2006

DATE DELIVERED:

31 July 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

24, 25 & 26 JULY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS STEWART

SOLICITOR FOR THE APPLICANT:

ARMSTRONG COLLINS & DELACY

COUNSEL FOR THE RESPONDENT:

MR O’SHANNESSY

SOLICITOR FOR THE RESPONDENT:

CLANCY & TRIADO

Orders

Property

That by 4.00pm on 1 November 2007 (the due date) the wife pay to the husband, the sum of $187,000 (the sum due).
That contemporaneously with the payment of the sum due:
(a)The husband, at the expense of the wife, transfer to the wife, all of his interest in the real property at A (“the [A] home”);
(b)The husband withdraw any caveat lodged by or on his behalf over the interests of the wife in the A home;
(c)The wife withdraw any caveat lodged by or on her behalf over the interests of the husband in the real properties at B and T (the husband’s real properties); and
(d)The wife relinquish any interest in the husband’s real properties.
In default of payment of the sum due by the due date, the husband have the right to acquire the interest of the wife in the A home by a payment to her of $203,000. To exercise his election to acquire the interest of the wife, the husband shall advise the solicitors for the wife in writing of that desire no later than 4 pm on…

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.

Keep reading for free

Create a free CaseChat account to read McConachie and McConachie and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] FamCA 754
Decision Date: 31 July 2007

CaseChat Overview and Summary

This matter concerned property adjustment orders made by Justice Cronin in the Family Court of Australia between the wife and the husband. The dispute revolved around the division of various assets, including real property and superannuation entitlements, and the financial obligations of each party in relation to these assets and potential capital gains tax.

The court was required to determine the specific terms of the property settlement, including the payment of a sum of money from the wife to the husband, the transfer of interests in the matrimonial home and other properties, and the allocation of responsibility for any capital gains tax and liabilities to third parties. The court also had to consider the consequences of default in payment and the process for the sale of the matrimonial home if necessary, as well as the disposition of superannuation entitlements.

Justice Cronin's reasoning led to a detailed set of orders designed to achieve a final division of the parties' property. The orders stipulated a payment from the wife to the husband by a specified date, with provisions for the transfer of property interests contingent on this payment. In the event of default, the husband was given an option to acquire the wife's interest in the matrimonial home, or alternatively, the property was to be sold by public auction with the proceeds distributed according to a defined hierarchy. The orders also clarified responsibility for taxation and other liabilities, and confirmed each party's retention of their respective superannuation entitlements and other property in their possession.

Orders

Orders of the court

Property

That by 4.00pm on 1 November 2007 (the due date) the wife pay to the husband, the sum of $187,000 (the sum due).

That contemporaneously with the payment of the sum due:

(a) The husband, at the expense of the wife, transfer to the wife, all of his interest in the real property at A (“the [A] home”);

(b) The husband withdraw any caveat lodged by or on his behalf over the interests of the wife in the A home;

(c) The wife withdraw any caveat lodged by or on her behalf over the interests of the husband in the real properties at B and T (the husband’s real properties); and

(d) The wife relinquish any interest in the husband’s real properties.

In default of payment of the sum due by the due date, the husband have the right to acquire the interest of the wife in the A home by a payment to her of $203,000. To exercise his election to acquire the interest of the wife, the husband shall advise the solicitors for the wife in writing of that desire no later than 4 pm on 14 November 2007. If the election is so exercised, the payment of $203,000 shall be made to the wife no later than 4 pm on 30 November 2007 at which time, the wife shall transfer to the husband, at the expense of the husband, all of her interest in the A home and provide vacant possession to the husband on that date and time.

In default of payment of the sum due by the due date and upon the husband not electing to acquire the interest of the wife by 4 pm on 14 November 2007, then the husband and the wife forthwith thereafter do all things necessary to place the A home on the market for sale by public auction on terms to be agreed and in default of agreement on terms to be determined by an agent as an expert witness appointed by a registrar of the Court pursuant to Rule 15.46 of the Family Law Rules and upon the sale of the home, the proceeds be applied as follows:

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

(b) Secondly, to pay the costs of the said single expert;

(c) Thirdly, to pay to the husband, a sum such that he receives 52.5 per cent of the pool of assets referred to in paragraph 104 of the reasons for judgment in these proceedings delivered this day together with interest on the outstanding sum pursuant to the Family Law Rules from 14 November 2007 until the payment; and

(d) Fourthly, the balance to the wife.

That for the purposes of paragraph 4(c) of these orders, the sum to be included in the pool of assets referred to in paragraph 104 of the said judgment is the net sum after payment of the items in paragraph 4(a) and (b) of these orders.

That the wife be responsible for, pay and indemnify the husband in respect of, the taxation arising from the capital gain received in respect of transfer to the husband of the B property.

That the husband be responsible for, pay and indemnify the wife in respect of any liability of either the husband and/or the wife to the husband’s father and F Pty. Ltd.

That the husband retain and the wife relinquish any interest in any superannuation entitlements of the husband.

That the wife retain and the husband relinquish any interest in any superannuation entitlements of the wife.

10.

That the husband remove the container in the rear yard of the A home and its contents by 4 pm on 1 September 2007.

11.

That each party otherwise retain and the other relinquish any interest in, all other property in the possession of such party as at this date.

12.

That the application of the wife filed 24 November 2005 and the response of the husband filed 3 February 2006 be otherwise dismissed save as to any application for costs by either party.

13.

That any issue as to costs be determined upon written submission to the Honourable Justice Cronin and any such application for such costs:

(a) be filed with the Associate to Justice Cronin by 4 pm on 17 August 2007, and

(b) be served upon the other party by that date.

14.

That in the event that an application is made for costs by either party pursuant to paragraph 13 hereof, the other party shall have until 4 pm on 24 August 2007 to reply.

15.

If no further application by either party is filed by the date referred to in paragraph 13, all applications shall be deemed to be dismissed.

16.

That all proceedings be otherwise removed from the list of cases awaiting a hearing.

IT IS CERTIFIED

17.

That pursuant to Rule 19.50 of the Family Law Rules it was reasonable to engage a lawyer as counsel.

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.