Miller and Stanley - [2018] FCCA 2265

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER & STANLEY

[2018] FCCA 2265

Catchwords:
FAMILY LAW – Property proceeding – adjustment of property interests – husband failed to engage properly in proceeding – husband failed to cooperate with respect to joint valuation of property – no property valuation completed –whether property was transferred to parties as gift or loan – gifts from both parties’ parents – husband failed to make full and frank disclosure of financial affairs – uncertainty as to precise value of asset pool – mortgage default – mortgagee secured judgment for debt and possession of property – sale of property – family violence – breaches of intervention order – just and equitable for a property adjustment to be made – parties’ financial and non-financial contributions given equal weighting – wife has primary care and major responsibility for welfare of young children including for their living expenses since separation – minimal child support payments – husband has clear capacity to engage in remunerative employment – determination of appropriate property adjustment.

Legislation:

Family Law Act 1975, ss.79, 81

Cases cited:

Calvin & McTier [2017] FamCAFC 125
Chang & Su (2002) FLC 93-117
Elkhouri & Amatullah [2017] FamCA 688
Ferraro & Ferraro (1993) FLC 92-335
Giunti & Giunti (1986) FLC 91-759
Hickey & Hickey; the Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
In the marriage of Rolfe (1979) FLC 90-629
JEL & DDF (2001) FLC 93-075
Kedis & Kedis [2013] FCCA 1959
McDermott & McDermott [2017] FamCA 376
Stanford v Stanford (2012) 247 CLR 108
Whent & Marbrand [2018] FamCAFC 95

Applicant:

MS MILLER

Respondent:

MR STANLEY

File Number:

MLC 10063 of 2017

Judgment of:

Judge A Kelly

Hearing dates:

16 & 17 July 2018

Date of Last Submission:

17 July 2018

Delivered at:

Melbourne

Delivered on:

23 August 2018

REPRESENTATION

Counsel for the Applicant:

Ms Mansfield

Solicitors for the Applicant:

VM Family Lawyers

The Respondent appearing in person

ORDERS

The applicant have leave to withdraw the notice of discontinuance filed on 17 May 2018.
The applications in a case filed on 24 April 2018 and 23 May 2018 respectively be otherwise dismissed.
By 4.00pm on 6 September 2018, the applicant file and serve minutes of orders giving effect to these Reasons for Judgment.
By 4.00pm on 27 September 2018, the respondent file and serve a response to the applicant’s minutes of proposed orders indicating where he agrees or disagrees with each of those orders and why.
The parties have liberty to apply on reasonable notice for the proceeding be listed for mention for the making of final orders.

IT IS NOTED that publication of this judgment under the pseudonym Miller & Stanley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10063 of 2017

MS MILLER

Applicant

And

MR STANLEY

Respondent

REASONS FOR JUDGMENT

Introduction

The reasons for judgment explain why I have concluded that it is just and equitable for there to be an…

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 Miller and Stanley

Details

AGLC: Miller and Stanley [2018] FCCA 2265
Case: [2018] FCCA 2265
Decision Date: 23 August 2018

CaseChat Overview and Summary

In *Miller and Stanley*, heard by Judge A Kelly, the applicant sought to withdraw a notice of discontinuance filed on 17 May 2018, while also having applications filed on 24 April 2018 and 23 May 2018 dismissed. The respondent's position on these applications was not explicitly detailed in the provided text, but the court's orders indicate a process for resolving the underlying dispute.

The central legal issue before the court was whether to grant the applicant leave to withdraw their notice of discontinuance and how to proceed with the remaining applications in light of this. The court was required to determine the appropriate course of action to manage the litigation effectively and fairly, considering the parties' actions and the stage of the proceedings.

The court's reasoning, as evidenced by its orders, suggests an approach that allows the applicant to retract their previous discontinuance, thereby preserving their ability to pursue the matter further. The dismissal of the other applications indicates a streamlining of the proceedings, likely to focus on the core issues or to facilitate a resolution. The detailed timelines for filing minutes of orders and responses demonstrate the court's intention to guide the parties towards a final determination, with liberty to apply for further directions if necessary. The outcome of the applications was that the applicant was granted leave to withdraw the notice of discontinuance, and the applications filed on 24 April 2018 and 23 May 2018 were otherwise dismissed.

Orders

Orders of the court

The applicant have leave to withdraw the notice of discontinuance filed on 17 May 2018.

The applications in a case filed on 24 April 2018 and 23 May 2018 respectively be otherwise dismissed.

By 4.00pm on 6 September 2018, the applicant file and serve minutes of orders giving effect to these Reasons for Judgment.

By 4.00pm on 27 September 2018, the respondent file and serve a response to the applicant’s minutes of proposed orders indicating where he agrees or disagrees with each of those orders and why.

The parties have liberty to apply on reasonable notice for the proceeding be listed for mention for the making of final 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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