Molloy and Molloy - [2016] FCCA 2400

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOLLOY & MOLLOY

[2016] FCCA 2400

Catchwords:
FAMILY LAW – Property – significant contributions by one party post-separation.

Legislation:

Evidence Act 1995, ss.50-60
Family Law Act 1975, s.75(2)

Cases cited:

Ferraro & Ferraro (1993) FLC 92-335

Fields & Smith (2015) FLC 93-638

Pierce v Pierce [1998] FamCA 74

Mallet v Mallet [1984] HCA 21

Applicant:

MR MOLLOY

Respondent:

MS MOLLOY

File Number:

SYC 3838 of 2014

Judgment of:

Judge Henderson

Hearing dates:

5-6 September 2016

Date of Last Submission:

6 September 2016

Delivered at:

Sydney

Delivered on:

22 September 2016

REPRESENTATION

Counsel for the Applicant:

Mr Watkins

Solicitors for the Applicant:

GA Lawyers

Solicitors for the Respondent:

Marsdens Law Group

ORDERS

That within 90 days the husband to pay to the wife the sum of $372,320. Interest shall accrue on this sum if not paid in accordance with this order.
Simultaneously with payment of this the wife to transfer all her right title and interest in the property at Property D to the husband.
Any transfer of the wife’s interest in the property to the husband is subject to the husband discharging the wife’s current liability to the (omitted) bank in respect of the two existing mortgages over the property.
In the event this sum is not paid within the time set out in order 1 the parties are to do all acts and things to place the property at Property D on the market for sale as agreed between the parties with an agent and at a price as agreed between the parties.
The net proceeds of sale be disbursed as follows;
(a)Payment of agent fees and usual sale and conveyancing costs;
(b)Discharge of all mortgages;
(c)42.5% of the net proceeds of sale together with interest accrued pursuant to order 1 to the wife and;
(d)The balance to the husband.
Otherwise the parties retain all other items currently in their possession including monies in bank accounts, superannuation funds and personalty.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3838 of 2014

MR MOLLOY

Applicant

And

MS MOLLOY

Respondent

REASONS FOR JUDGMENT

The matter of Molloy & Molloy is a property application heard on 5 and 6 September 2016. Mr Watkins of Counsel represented the applicant husband and Mr Reeve, solicitor, the respondent wife.
The evidence for the parties was as follows:
a)The husband’s initiating application filed 24 June 2014;
b)The husband’s affidavit filed 25 July 2016;
c)The husband’s financial statement filed 25 July 2016;
d)The wife’s response to an application in a case filed 9 October 2014;
e)The wife’s affidavit filed 15 August 2016;
f)The wife’s financial statement filed 15 August 2016;
g)The affidavit of the single expert, Mr G, filed 1 September 2016, who valued the former matrimonial home (joint valuation);
h)Joint valuation by (omitted) dated 25 January 2015 to value plant and machinery that were…

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 Molloy and Molloy

Details

AGLC: Molloy and Molloy [2016] FCCA 2400
Case: [2016] FCCA 2400
Decision Date: 22 September 2016

CaseChat Overview and Summary

In *Molloy and Molloy*, heard by Judge Henderson, the dispute concerned the division of property between a husband and wife. The court was required to determine the appropriate financial and property orders to be made in light of the parties' circumstances.

The central legal issues before the court were the quantum of a lump sum payment to be made by the husband to the wife, and the disposition of a specific property (Property D) owned by the parties. The court also had to consider the mechanism for discharging existing liabilities associated with Property D and the consequences of non-payment of the lump sum.

Judge Henderson ordered the husband to pay the wife a sum of $372,320 within 90 days, with interest accruing if payment was delayed. Simultaneously, the wife was to transfer her interest in Property D to the husband, provided he discharged her existing mortgage liabilities on that property. If the lump sum was not paid within the stipulated timeframe, the parties were to list Property D for sale, with the net proceeds to be applied first to sale costs and mortgage discharge, then 42.5% of the remainder plus accrued interest to the wife, and the balance to the husband. All other assets were to remain with the party currently possessing them.

Orders

Orders of the court

That within 90 days the husband to pay to the wife the sum of $372,320. Interest shall accrue on this sum if not paid in accordance with this order.

Simultaneously with payment of this the wife to transfer all her right title and interest in the property at Property D to the husband.

Any transfer of the wife’s interest in the property to the husband is subject to the husband discharging the wife’s current liability to the (omitted) bank in respect of the two existing mortgages over the property.

In the event this sum is not paid within the time set out in order 1 the parties are to do all acts and things to place the property at Property D on the market for sale as agreed between the parties with an agent and at a price as agreed between the parties.

The net proceeds of sale be disbursed as follows;

(a) Payment of agent fees and usual sale and conveyancing costs;

(b) Discharge of all mortgages;

(d) The balance to the husband.

Otherwise the parties retain all other items currently in their possession including monies in bank accounts, superannuation funds and personalty.

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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