Cases cited:
Aitken & Deakin [2010] FMCAfam 35
Clisbey & Vas [2011] FamCA 611
Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Norbis v Norbis (1986) 161 CLR 513
Taisha & Peng [2012] FamCA 385
Webb & Douglas [2012] FMCAfam 1049

Applicant:

MR MCGEE

Respondent:

MS KERR

File Number:

SYC 3088 of 2012

Judgment of:

Judge Altobelli

Hearing dates:

14 December 2012 and 22 April 2013

Date of Last Submission:

22 April 2013

Delivered at:

Sydney

Delivered on:

4 June 2013

REPRESENTATION

Counsel for the Applicant:

Mr Levy

Solicitors for the Applicant:

Dimocks Family Lawyers

The Respondent (self-represented)

ORDERS

That within four (4) months from the date of these Orders, the Respondent pay to the Applicant the sum of $150,000 (“the Principal Sum”).
That if the said Principal Sum is not paid within the period specified in Order 1, the Respondent pay to the Applicant interest on the said sum pursuant to Rule 17.03 of the Family Law Rules 2004 and calculated form the due date until the date of payment in full on so much as is from time to time outstanding.
That in the event the Respondent has not complied with Order 1 above, within five (5) months from the date of these Orders, the Respondent shall forthwith and thereafter do all such acts and things and sign all such deeds, documents, instruments and writings as may be necessary to effect a sale of the property known as Property H (“the Property H”) and more particularly described in Certificate of Title Folio Identifier (omitted) and in particular shall:
(a)Immediately list the Property H property for sale by public auction with such firm of estate agents as may be nominated by the Applicant (“the auctioneers”);
(b)Give all necessary instructions to a firm of Solicitors (“the Solicitors”) to have the primary conduct of the sale and to prepare a contract for sale, with the Solicitors to again be appointed by the Applicant;
(c)Cooperate in every way with the auctioneers, including but not limited to, making the keys available to the auctioneers and allowing inspection of the property at all reasonable times requested by the auctioneers, and ensuring that the Property H property including the grounds are in a neat and clean condition at the time of inspection by the auctioneers and prospective purchasers;
(d)Execute all documents requested by the auctioneers and the Solicitors in relation to the sale of the Property H property;
(e)Attend the auction sale and, in the event that the Property H property is passed in at auction, negotiate with the highest bidder at the auction;
(f)Accept the advice of the auctioneers as to a suitable reserve price, and as to 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 McGee and Kerr

Details

AGLC: MCGEE & KERR [2013] FCCA 402
Case: [2013] FCCA 402
Decision Date: 4 June 2013

CaseChat Overview and Summary

In *McGee and Kerr*, heard by Judge Altobelli, the dispute concerned the division of property and the financial relationship between the parties. The court was required to make orders concerning the payment of a sum of money, the sale of a property, and the allocation of remaining assets and liabilities.

The court determined the legal issues surrounding the finalisation of the parties' financial affairs. This involved establishing a clear mechanism for the payment of a principal sum, including provisions for interest in case of default. Furthermore, the court addressed the sale of a specific property, outlining the steps and responsibilities of the parties in facilitating its sale and the distribution of the proceeds. The court also considered how remaining property and debts would be handled, aiming to achieve a final determination of the parties' financial relationship.

The court ordered that the respondent pay the applicant $150,000 within four months. If this sum was not paid, interest would accrue. In the event of non-compliance with the payment order, the respondent was directed to take all necessary steps to sell a specified property within five months. These steps included listing the property for auction with agents and solicitors nominated by the applicant, cooperating with the sale process, and accepting advice regarding the sale price. The proceeds of the sale were to be applied first to sale costs, then legal costs, then the discharge of any mortgage, followed by the principal sum and interest owed to the applicant, with any balance to the respondent. The court also ordered that each party retain property and chattels in their possession and be liable for their own debts, indemnifying the other against any such liabilities. A Registrar was appointed to execute documents if a party defaulted, and the orders were intended to finally determine the parties' financial relationship.

Orders

Orders of the court

That within four (4) months from the date of these Orders, the Respondent pay to the Applicant the sum of $150,000 (“the Principal Sum”).

That if the said Principal Sum is not paid within the period specified in Order 1, the Respondent pay to the Applicant interest on the said sum pursuant to Rule 17.03 of the Family Law Rules 2004 and calculated form the due date until the date of payment in full on so much as is from time to time outstanding.

That in the event the Respondent has not complied with Order 1 above, within five (5) months from the date of these Orders, the Respondent shall forthwith and thereafter do all such acts and things and sign all such deeds, documents, instruments and writings as may be necessary to effect a sale of the property known as Property H (“the Property H”) and more particularly described in Certificate of Title Folio Identifier (omitted) and in particular shall:

(a) Immediately list the Property H property for sale by public auction with such firm of estate agents as may be nominated by the Applicant (“the auctioneers”);

(b) Give all necessary instructions to a firm of Solicitors (“the Solicitors”) to have the primary conduct of the sale and to prepare a contract for sale, with the Solicitors to again be appointed by the Applicant;

(c) Cooperate in every way with the auctioneers, including but not limited to, making the keys available to the auctioneers and allowing inspection of the property at all reasonable times requested by the auctioneers, and ensuring that the Property H property including the grounds are in a neat and clean condition at the time of inspection by the auctioneers and prospective purchasers;

(d) Execute all documents requested by the auctioneers and the Solicitors in relation to the sale of the Property H property;

(e) Attend the auction sale and, in the event that the Property H property is passed in at auction, negotiate with the highest bidder at the auction;

(f) Accept the advice of the auctioneers as to a suitable reserve price, and as to the acceptance of an offer below the reserve price, in the event that the Property H property is passed in at auction;

(g) In the event that the Property H property does not sell at auction, re-list the said property for sale by auction at intervals of no more than six (6) weeks, upon the same terms and conditions as set out above, until the property is sold;

(h) Upon settlement of the sale of the property, procure that the proceeds of such sale be distributed as follows, and according to the following priority:

(i) In payment of the auctioneers’ costs on the sale;

(ii) In payment of legal costs and disbursements incidental to the sale;

(iii) In payment of the amount required to discharge the mortgage secured over the property;

(iv) In payment to the Applicant of the Principal Sum still outstanding to him together with interest thereon, calculated in accordance with Order 2;

(v) The balance thereafter remaining to be paid to the Respondent.

That otherwise as provided herein, the Applicant and Respondent shall each be entitled to retain to the exclusion of the other all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders, and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker.

That otherwise than provided herein, the Applicant and the Respondent shall each otherwise be and remain liable for any debts in their own name as at the date of these Orders, and in this respect, shall indemnify and keep indemnified the other form any liability in relation thereto.

That in default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at a Sydney Registry be appointed pursuant to s.106A to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.

That pursuant to s.81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

MCGEE & KERR [2013] FCCA 402

Most Recent Citation

Dobson and Seabrook [2015] FCCA 1503

Cases citing this decision · 1 of 1 shown

DOBSON & SEABROOK
[2015] FCCA 1503 Para 9

…ted and applied on many occasions in this Court: Mason & Hammett [2011] FMCAfam 1004 at [30]; Kelly & Temple [2011] FMCAfam 683 at [28]; McGee & Kerr [2013] FCCA 402 at [21]; Dabney & Laird [2013] FCCA 214 at [15]; and in the Family Court of Australia at first instance: Clisbey & Vas [2011] FamCA 611 at [47] and V…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Webb & Douglas
[2012] FMCAfam 1049 Para 4

…In this regard counsel referred the court to Webb & Douglas [2012] FMCAfam 1049 (9 October 2012) at paragraphs 16-23: 16. There is nothing in the drafting of s.90SM that suggests there is a hierarchy or priority of contributions. For example there is nothing to suggest that direct financial contributions are regarded…
Taisha v Peng
[2012] FamCA 385 Para 3

…In Taisha & Peng [2012] FamCA 385 (24 May 2012) Cronin J made a number of important observations about this section: 6. Because the Court can only exercise its powers to deal with the parties’ property if there existed a de facto relationship, the declaration of the existence of that de facto relationship is in the…
Wall & Mitchell
[2012] FamCA 114 Para 4

…0. Miller & Trent and V & K were both accepted and adopted by Johnston J in the Family Court of Australia in Wall & Mitchell [2012] FamCA 114 and by Black J in the New South Wales Supreme Court in Aslan & Al Nayad. [2012] NSWSC 57. 21. The cases therefore seem to suggest that before a contribution can be substantia…
Majeda Aslan (Plaintiff) v Suroor Bin Mohamed Al Nahyan (Defendant)
[2012] NSWSC 57 Para 4

…rt of Australia in Wall & Mitchell [2012] FamCA 114 and by Black J in the New South Wales Supreme Court in Aslan & Al Nayad. [2012] NSWSC 57. 21. The cases therefore seem to suggest that before a contribution can be substantial, it must be more than usual or ordinary. This is a vague and subjective standard. In th…
Clisbey & Vas
[2011] FamCA 611 Para 1

…me there has been a breakdown of the relationship as distinct from a “breaking down” of that relationship. See also Clisbey & Vas [2011] FamCA 611 (8 August 2011) per Stevenson J.…
Miller & Trent
[2011] FMCAfam 324 Para 4

…racterised as substantial. There are no hard and fast rules. Every case must be determined on its merits. 19. In Miller & Trent [2011] FMCAfam 324 Federal Magistrate Coates examined the meaning of substantial contributions in the context of s.90SK. His Honour referred to, and accepted, the decision of Holden CJ in th…
Jonah & White
[2011] FamCA 221 Para 3

…e facto relationship, the declaration of the existence of that de facto relationship is in the nature of a jurisdictional fact (see Jonah and White [2011] FamCA 221). The onus is on the applicant to establish that the Court has that jurisdiction. 7. The definition of a de facto relationship is set out in s 4AA(1) o…
Barry & Dalrymple
[2010] FamCA 1271 Para 3

…tive degrees of ...importance involves a denial of common experience and will almost inevitably be productive of error (see Barry and Dalrymple [2010] FamCA 1271 referring to the Full Court of the Federal Court of Australia in Lynam v Director-General of Social Security (1983) 52 ALR 128). Whilst a composite picture…
Moby & Schulter
[2010] FamCA 748 Para 3

…my view, s 4AA(4) does not ameliorate the requirement for the applicant to prove her case on that transparent standard. 12. In Moby and Shulter [2010] FamCA 748 Mushin J looked at s 4AA(1) and said: 137. ...in Simonis v (omitted) Co. Limited (1987) DFC 95-052, Kearney J agreed with the approach of Powell J referred…
Aitken & Deakin
[2010] FMCAfam 35 Para 1

…sue, albeit related to the first is whether, and if so when, the relationship ended, or in other words when the parties separated. In Aitken & Deakin [2010] FMCAfam 35 (21 January 2010) McGuire FM (as he then was) said about this: 9. Those authorities make it clear that there are three elements of separation in a le…
Wentworth v Wentworth
[1995] HCATrans 353 Para 4

…gistrate Coates also referred to a Family Provision Act (1982) (NSW) decision in Wentworth & Wentworth (1995) 37 NSWLR 703 where the court held that substantial “means not illusory, something considerable or large”. Whereas the V & K and Miller & Trent definition of substantial invite comparison to other cases, the di…
Light v Anderson
[1992] NSWCA 136 Para 3

…138. The approaches of both Powell J and Kearney J quoted above were adopted by the Court of Appeal of the Supreme Court of New South Wales in Light v Anderson (1992) DFC 95-120. 139. While I respectfully agree with the approach of their Honours, before the definition may be considered as constituting "a single composite…
Norbis v Norbis
[1986] HCA 17 Para 7

…r I should adopt a global or asset-by-asset approach to contribution. The authority in this regard is, the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to me, in part or in whole. My discreti…
Lynam v Director-General of Social Security
[1983] FCA 274 Para 3

…ry and Dalrymple [2010] FamCA 1271 referring to the Full Court of the Federal Court of Australia in Lynam v Director-General of Social Security (1983) 52 ALR 128). Whilst a composite picture is clearly the only way any case can be determined here, these are mandatory requirements because they go to jurisdiction. Wit…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
4AA, 79, 90SB, 90SF, 90SM 6 mentions (from Para 7)
Family Law Rules 2004 (Cth)
2 mentions (from Para 2)
Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 2)