McGregor and Beaton - [2017] FCCA 927

FEDERAL CIRCUIT COURT OF AUSTRALIA

McGREGOR & BEATON

[2017] FCCA 927

Catchwords:
FAMILY LAW – Property proceedings.

Legislation:

Family Law Act 1975, ss.75, 79, 106, Part VIII

Stanford & Stanford (2002) 293 ALR 70
Hickey & Hickey (2003) FLC 93 – 143
Bevan & Bevan [2013] FAM CAFC 116
Norman & Norman [2010] FAM CAFC 66

In the marriage of Lee Steere (1985) FLC 91-626
In the marriage of Ferraro (1993) FLC 92-335
In the marriage of Clauson (1995) FLC 92-595

Whitton & Whitton (2015) FAMCA 102
Robb & Robb (1995) FLC 92-555

Applicant:

MS MCGREGOR

Respondent:

MR BEATON

File Number:

NCC 1294 of 2015

Judgment of:

Judge Myers

Hearing dates:

17 October 2016, 18 October 2016

Date of Last Submission:

18 October 2016

Delivered at:

Newcastle

Delivered on:

19 January 2017

REPRESENTATION

Counsel for the Applicant:

Mr Sundstrom

Solicitors for the Applicant:

Schofield Muir Lawyers

Counsel for the Respondent:

Mr Bithrey

Solicitors for the Respondent:

Bilbie Dan

THE COURT ORDERS THAT:

The proceeds of sale of the Property N property in the sum of $702,344.00 be divided $466,557.59 to the husband and $235,766.41 to the wife.
Any funds held in a controlled money account being the proceeds of sale of the Property N property exceeding $702,344.00 be divided between the parties 58% to the husband and 42% to the wife.
The wife be declared to be the owner of the sum of $120,000.00 held in the name of the parties with the (omitted) Bank and in furtherance of this order the husband and wife do all acts and things and sign all documents necessary to transfer to the wife ownership of the said sum of $120,000.00 held by the (omitted) Bank as security against a guarantee the parties gave for the wife’s daughter and the parties are to do all acts and things and sign all documents necessary to cause the (omitted) Bank to release the husband in respect of this guarantee within 28 days subject to the (omitted) Bank’s consent.
That within 42 days of today’s orders the husband and wife cause to be provided a minute of order to be made in Chambers that provides for a superannuation split from one or a number of the husband’s superannuation funds whereby the wife receives from the husband’s superannuation interests the sum of $23,818.72.
That the husband and wife shall ensure the husband’s superannuation fund or funds are provided procedural fairness as to the minutes of order providing the same not less than 28 days prior to providing the same to the Court in accordance with Order 3 above.
Otherwise than as provided for in these orders each party be declared to be the sole beneficial owner of all items of real property, money in bank accounts, shares in public or private companies, motor vehicles, superannuation, goods, chattels, insurance policies, furniture and furnishings and the like that stand in that party’s name or are in that party’s possession as at the date of these Orders.
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 McGregor and Beaton

Details

AGLC: McGregor and Beaton [2017] FCCA 927
Case: [2017] FCCA 927
Decision Date: 19 January 2017

CaseChat Overview and Summary

In McGregor and Beaton, Judge Myers of the Federal Circuit and Family Court of Australia was required to determine the division of property between a husband and wife. The dispute concerned the distribution of proceeds from the sale of a property, funds held in a controlled money account, a specific sum held in a bank account as security for a guarantee, and a superannuation split.

The court was tasked with determining how the net proceeds of sale of Property N, and any excess funds in a related controlled money account, should be divided. Further issues included the ownership of $120,000 held in a joint bank account, which was secured against a guarantee provided by the parties for the wife's daughter, and the quantum of a superannuation split to be transferred from the husband's funds to the wife. The court also needed to address the ownership of all other assets and property held by each party individually.

Judge Myers ordered that the proceeds of sale of Property N, totalling $702,344.00, be divided with the husband receiving $466,557.59 and the wife receiving $235,766.41. Any funds exceeding this amount in the controlled money account were to be split 58% to the husband and 42% to the wife. The wife was declared the sole owner of $120,000 held in a joint account, with both parties ordered to take necessary steps to transfer ownership to the wife and secure the husband's release from the guarantee within 28 days, subject to bank consent. A superannuation split was ordered, requiring the husband's superannuation funds to provide the wife with $23,818.72 within 42 days, with procedural fairness to the funds to be observed. Otherwise, each party was declared the sole beneficial owner of all assets in their name or possession. The Registrar was appointed to execute any necessary documents if a party refused to do so within 14 days of a written request.

Orders

Orders of the court

The proceeds of sale of the Property N property in the sum of $702,344.00 be divided $466,557.59 to the husband and $235,766.41 to the wife.

Any funds held in a controlled money account being the proceeds of sale of the Property N property exceeding $702,344.00 be divided between the parties 58% to the husband and 42% to the wife.

The wife be declared to be the owner of the sum of $120,000.00 held in the name of the parties with the (omitted) Bank and in furtherance of this order the husband and wife do all acts and things and sign all documents necessary to transfer to the wife ownership of the said sum of $120,000.00 held by the (omitted) Bank as security against a guarantee the parties gave for the wife’s daughter and the parties are to do all acts and things and sign all documents necessary to cause the (omitted) Bank to release the husband in respect of this guarantee within 28 days subject to the (omitted) Bank’s consent.

That within 42 days of today’s orders the husband and wife cause to be provided a minute of order to be made in Chambers that provides for a superannuation split from one or a number of the husband’s superannuation funds whereby the wife receives from the husband’s superannuation interests the sum of $23,818.72.

That the husband and wife shall ensure the husband’s superannuation fund or funds are provided procedural fairness as to the minutes of order providing the same not less than 28 days prior to providing the same to the Court in accordance with Order 3 above.

Otherwise than as provided for in these orders each party be declared to be the sole beneficial owner of all items of real property, money in bank accounts, shares in public or private companies, motor vehicles, superannuation, goods, chattels, insurance policies, furniture and furnishings and the like that stand in that party’s name or are in that party’s possession as at the date of these Orders.

In the event that either party refuses or neglects to execute any deed or instrument that may be required to give effect to these Orders within 14 days of a written request to do so, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party or parties and do all acts necessary to give validity to the operation to the deed or instrument. The registrar be empowered to sign documents on behalf of either party to effect orders.

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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