Meehan and Meehan - [2017] FCCA 1544

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEEHAN & MEEHAN

[2017] FCCA 1544

Catchwords:
FAMILY LAW – Property and spousal maintenance – contributions – weight to be afforded wife’s inheritance received late in relationship – s.75(2) factors – threshold test for spousal maintenance – which party to retain the former matrimonial home.

Legislation:

Family Law Act 1975 (Cth), ss.72(1), 74(1), 75(2), 79(1), (2), (4),(d)-(g)

Cases cited:

Hickey & Hickey & Attorney-General for Commonwealth of Australia (2003) FLC

93-143

Stanford v Stanford (2012) 247 CLR 108
Fielding & Nichol [2014] FCWA 77
NHC & RCH (2004) FLC 93-204 @ [61-63]
Pierce & Pierce (1999) FLC 92-844
Aleksovski & Aleksovski (1996) FLC 92-705
Robb & Robb (1995) FLC 92-555

Applicant:

MR MEEHAN

Respondent:

MS MEEHAN

File Number:

LNC 642 of 2016

Judgment of:

Judge McGuire

Hearing dates:

27 & 28 June 2017

Date of Last Submission:

28 June 2017

Delivered at:

Launceston

Delivered on:

16 August 2017

REPRESENTATION

Counsel for the Applicant:

Ms A Trezise

Solicitors for the Applicant:

Andrea Trezise

Counsel for the Respondent:

Mr P Welch

Solicitors for the Respondent:

Philip Welch

ORDERS

That the property pool of the parties be divided as to 82.5% to the wife and 17.5% to the husband pursuant to the findings as to the content and value of that pool in the reasons herein.
For the purposes of Order No.1 hereof the husband shall have first option to retain the former matrimonial home situate at Property G in Tasmania provided that the husband choose to exercise that option by notice in writing to the wife within twenty-eight (28) days of the date of these Orders and should he not exercise such option then the husband is to vacate the property within thirty-five (35) days of the date of these Orders in favour of the wife.
Should the husband exercise the option to retain the property at Property G in Tasmania, then within thirty-five (35) days of the date of these Orders the husband make a lump sum payment to the wife of $173,328 and contemporaneously the wife transfer to the husband all her right, title and interest in that property.
Provided that should the husband not exercise the right to retain the property at Property G in Tasmania and such property revert to the wife then the wife shall make a cash payment to the husband of $137,097 within thirty-five (35) days of the date of these Orders.
That within thirty-five (35) days of the date of these Orders the wife transfer and/or vest all her right, title and interest in the following to the husband absolutely;
a)The Jeep Cherokee motor vehicle in the possession of the husband;
b)The corpus of the (omitted) Retirement Fund in the name of the husband;
c)All personalty and chattels in the possession of or under the control of the husband as at the date of these Orders; and
d)The balances of any bank account or like investments in the name of or to the benefit of the husband as at…

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 Meehan and Meehan

Details

AGLC: Meehan and Meehan [2017] FCCA 1544
Case: [2017] FCCA 1544
Decision Date: 16 August 2017

CaseChat Overview and Summary

In Meehan and Meehan, Judge McGuire of the Federal Circuit Court of Australia determined the division of a property pool between a husband and wife. The dispute concerned the allocation of various assets and liabilities following the parties' separation.

The court was required to determine the appropriate percentage split of the parties' property pool and to make orders for the transfer and retention of specific assets, including the former matrimonial home, motor vehicles, retirement funds, and real estate. The court also had to consider the financial implications of these transfers, including any necessary lump sum payments between the parties, and to address the husband's application for spousal maintenance.

Judge McGuire ordered that the property pool be divided 82.5% in favour of the wife and 17.5% in favour of the husband. The husband was given a first option to retain the former matrimonial home, with specific timelines and payment obligations stipulated depending on whether he exercised this option. The court also detailed the transfer of various other assets and liabilities between the parties, ensuring each party was solely responsible for liabilities attaching to assets they retained and for liabilities incurred since separation. The husband's application for spousal maintenance was dismissed.

Orders

Orders of the court

That the property pool of the parties be divided as to 82.5% to the wife and 17.5% to the husband pursuant to the findings as to the content and value of that pool in the reasons herein.

For the purposes of Order No.1 hereof the husband shall have first option to retain the former matrimonial home situate at Property G in Tasmania provided that the husband choose to exercise that option by notice in writing to the wife within twenty-eight (28) days of the date of these Orders and should he not exercise such option then the husband is to vacate the property within thirty-five (35) days of the date of these Orders in favour of the wife.

Should the husband exercise the option to retain the property at Property G in Tasmania, then within thirty-five (35) days of the date of these Orders the husband make a lump sum payment to the wife of $173,328 and contemporaneously the wife transfer to the husband all her right, title and interest in that property.

Provided that should the husband not exercise the right to retain the property at Property G in Tasmania and such property revert to the wife then the wife shall make a cash payment to the husband of $137,097 within thirty-five (35) days of the date of these Orders.

That within thirty-five (35) days of the date of these Orders the wife transfer and/or vest all her right, title and interest in the following to the husband absolutely;

a) The Jeep Cherokee motor vehicle in the possession of the husband;

b) The corpus of the (omitted) Retirement Fund in the name of the husband;

c) All personalty and chattels in the possession of or under the control of the husband as at the date of these Orders; and

d) The balances of any bank account or like investments in the name of or to the benefit of the husband as at the date of these Orders.

That within thirty-five (35) days of the date of these Orders the husband transfer and/or vest all his right, title and interest in the following to the wife absolutely:

(a) The properties situate at:

i) Property A, in Tasmania;

ii) Property B, in Tasmania;

iii) Property C in Tasmania;

iv) Property D, in Tasmania;

v) Property E, in New South Wales;

(b) The wife’s (omitted) Volkswagen motor vehicle;

(d) The (omitted) dog trailer;

(e) The (omitted) Nissan motor vehicle;

(f) The (omitted) dogs in the possession of the wife;

(g) All personalty and chattels in the possession of or under the control of the wife as at the date of these Orders;

(h) The wife’s superannuation policy and entitlement; and

(i) The balances of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these Orders.

That each party be solely responsible for and indemnify the other in respect of the following:

(a) Any and all liabilities attaching to any of the assets retained by that party pursuant to these Orders; and

(b) Any and all liabilities incurred by that party since separation in either joint names, or in that party’s name alone.

That the husband’s application for spousal maintenance is dismissed.

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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