McLusky & McLusky - [2014] FamCA 93

FAMILY COURT OF AUSTRALIA

MCLUSKY & MCLUSKY

[2014] FamCA 93

FAMILY LAW – PROPERTY – Value of property – Expert Evidence – Gift from the husband’s father – Gift from the wife’s parents.
FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Contributions – Where the husband is deemed to have made the greater contribution – Adjustment pursuant to s 75(2) – Where the wife is deemed to require an adjustment – Earning capacity.
FAMILY LAW – SPOUSAL MAINTENANCE – Where an application is made for short term spousal maintenance for the wife – Where the application is dismissed.

Family Law Act 1975 (Cth) ss 66K(5), 66L, 75(2), 75(2)(e), 75(2)(o), 79(4).

Stanford & Stanford (2012) 247 CLR 108
Bevan & Bevan [2013] FamCAFC 116
Chorn & Hopkins (2004) FLC 93-204
Bowe & Bateman [2013] FamCA 253

APPLICANT:

Ms McLusky

RESPONDENT:

Mr McLusky

FILE NUMBER:

BRC

7380

2010

DATE DELIVERED:

26 February 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

21 & 22 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirk QC

SOLICITOR FOR THE APPLICANT:

Peter Sheehy Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Hamwood

SOLICITOR FOR THE RESPONDENT:

Dixie Ann Middleton & Associates

Orders

The wife’s application for periodic spousal maintenance is dismissed.
That in the event that a draft Minute of Order agreed upon between the parties as being appropriate orders for the Court to make to give effect to the Court’s findings contained within the Reasons for Judgment published this day is not jointly forwarded to my Associate beforehand, this matter will be listed before me at 9.30 am on Tuesday, 1 April 2014 for the hearing and/or taking of further submissions from each party as to the precise orders to be made by the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McLusky & McLusky has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7380 of 2010

Ms McLusky

Applicant

And

Mr McLusky

Respondent

REASONS FOR JUDGMENT

Mr and Ms McLusky began to live together as a couple in 1991. Each had been previously married for a little while and Ms McLusky had a daughter of that previous marriage, born in 1990. They married in May 1992 and then had two sons, the first born in 1993, the second born in 1994. Some years later the husband adopted the wife’s daughter as his own child.
When they commenced cohabitation, the husband was a young professional and owned, in partnership with another man, a suburban practice. He has owned that practice on his own ever since 1993.
The couple’s relationship broke down and they separated in July 2009 – a few months short of 18 years after they began to live together. The husband moved from the family home and the wife and the three children, then aged 19, 16 and 15, remained living…

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 McLusky & McLusky

Details

AGLC: McLusky & McLusky [2014] FamCA 93
Case: [2014] FamCA 93
Decision Date: 26 February 2014

CaseChat Overview and Summary

In *McLusky & McLusky*, Forrest J of the Federal Circuit Court of Australia considered an application by the wife for periodic spousal maintenance.

The primary legal issue before the Court was whether the wife had established a need for spousal maintenance, and if so, whether it was just and equitable to make an order for periodic maintenance, having regard to the financial circumstances of both parties.

Forrest J dismissed the wife's application for periodic spousal maintenance. The reasons for this decision were not detailed in the provided text, but the Court indicated that if the parties did not jointly forward a draft Minute of Order reflecting the Court's findings, the matter would be relisted for further submissions on the precise orders to be made.

Orders

Orders of the court

The wife’s application for periodic spousal maintenance is dismissed.

That in the event that a draft Minute of Order agreed upon between the parties as being appropriate orders for the Court to make to give effect to the Court’s findings contained within the Reasons for Judgment published this day is not jointly forwarded to my Associate beforehand, this matter will be listed before me at 9.30 am on Tuesday, 1 April 2014 for the hearing and/or taking of further submissions from each party as to the precise orders to be made by the Court.

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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