McCrae & McCrae - [2007] FamCA 1254

FAMILY COURT OF AUSTRALIA

MCCRAE & MCCRAE

[2007] FamCA 1254

FAMILY LAW – APPEAL AGAINST DECISION OF FEDERAL MAGISTRATE – PROPERTY – Appeal from a discretionary judgment – Whether the trial judge erred in excluding monies from an inheritance and damages award - Section 75(2) Family Law Act 1975 – Whether the trial Judge should have made an adjustment in the wife’s favour – Husband’s overall financial position superior to the wife’s post-marriage - Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Failure to comply with directions - Respondent to pay appellant’s costs of further directions hearing – No order as to costs of the appeal.

Family law Act (1975) Cth

Ahmad v Ahmad (1995) FLC 92 57
CDJ v VAJ (1998) 197 CLR 172
Hickey (2003) FLC 93-143
House and the King (1936) 55 CLR 499
Nolanv Ingram (1984) FLC 91 585
Norbis v Norbis (1986) 161 CLR 513

APPELLANT:

MS MCCRAE

RESPONDENT:

MR MCCRAE

FILE NUMBER:

BRM

4661

2004

APPEAL NUMBER:

2007

DATE DELIVERED:

24 October 2007

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

25 July 2007

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

14 March 2007

LOWER COURT MNC:

[2007] FamCA 203

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page SC

SOLICITOR FOR THE APPELLANT:

Legal Aid Queensland

COUNSEL FOR THE RESPONDENT:

Mr Forrest

SOLICITOR FOR THE RESPONDENT:

Baker O'Brien Toll Solicitors

Orders

That the appeal be dismissed.
That the appellant pay the respondent’s costs of an incidental to the Application in a Case filed 11 July 2007 and the appearance, including that of counsel, on 18 July 2007 fixed at $2,200.00.
That there otherwise be no order as to costs of the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as McCrae & McCrae

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 31 of 2007
File Number: BRM 4661of 2004

MS MCCRAE

Appellant

And

MR MCCRAE

Respondent

REASONS FOR JUDGMENT

Introduction

In a Notice of Appeal filed on 11 April 2007 the wife appeals from orders made on 14 March 2007 by Federal Magistrate Baumann. An amended Notice of Appeal was filed by leave on 19 July 2007. A direction was made pursuant to s 94AAA(3) of the Family Law Act (1975) Cth (“the Act”) that the matter be heard by a single Judge.
The property proceedings before the Federal Magistrate concerned the division of a small pool of property assessed by the Federal Magistrate at $167,091.00.
The orders made by the Federal Magistrate on 14 March 2007 in essence provided that the property be divided as to 65 per cent to the husband and 35 per cent to the wife and that:
(1)The wife pay to the husband $112,575.00 and in default of payment by the wife to the husband that the wife vacate…

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 McCrae & McCrae

Details

AGLC: McCrae & McCrae [2007] FamCA 1254
Case: [2007] FamCA 1254
Decision Date: 24 October 2007

CaseChat Overview and Summary

In *McCrae & McCrae*, heard by May J, the wife appealed a property settlement decision made by a Federal Magistrate. The central dispute concerned whether certain monies received by the husband, specifically an inheritance and a damages award, should have been included in the asset pool for division, and whether an adjustment under section 75(2) of the *Family Law Act 1975* (Cth) should have been made in the wife's favour, given the husband's superior financial position post-separation.

The primary legal issues before the court were whether the trial judge erred in excluding the inheritance and damages award from the property division, and consequently, whether the court should have made a greater adjustment in the wife's favour under section 75(2) of the *Family Law Act 1975* (Cth) to account for the disparity in the parties' financial positions.

May J dismissed the appeal, finding no error in the trial judge's discretionary judgment. The reasoning, though not detailed in the provided text, implicitly upheld the Magistrate's decision regarding the exclusion of the specific funds and the extent of any adjustment. The court applied principles of family law property division, which involve discretionary judgments based on the specific facts and circumstances of each case, including consideration of contributions, financial resources, and future needs.

The appeal was dismissed. The appellant was ordered to pay the respondent's costs of and incidental to a specific application and hearing fixed at $2,200.00, with no further order as to the costs of the appeal itself.

Orders

Orders of the court

That the appeal be dismissed.

That the appellant pay the respondent’s costs of an incidental to the Application in a Case filed 11 July 2007 and the appearance, including that of counsel, on 18 July 2007 fixed at $2,200.00.

That there otherwise be no order as to costs of the appeal.

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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