Molloy and Molloy - [2017] FamCAFC 254

FAMILY COURT OF AUSTRALIA

MOLLOY & MOLLOY

[2017] FamCAFC 254

FAMILY LAW – APPEAL – PROPERTY – Where the parties had been separated for almost 10 years as at the time of the hearing – Whether the primary judge erred in her assessment of the parties’ respective post-separation contributions – Whether the primary judge erred by not treating the husband’s payments of the principal of the mortgage and interest as being equal to the value he derived from living in and running his business from jointly owned property – Where the primary judge determined that the husband’s payment of interest was matched by his use of the property, but that the payments of the principal was a financial contribution not matched by the wife – Where these findings were open to the primary judge – Whether the primary judge erred in finding that the husband’s renovations had increased the value of the property – Where there was no evidence to support this finding – Where the error is not material – Whether the primary judge erred by making a five per cent adjustment under s 75(2) of the Family Law Act 1975 (Cth) in favour of the husband to take account of the husband’s lack of superannuation and likely shorter working life – Where the husband did not make proper disclosure about his financial position and resources – Whether the primary judge based her s 75(2) adjustment on speculation, unsupported by the evidence, as to when the husband would retire and as to the quantum of superannuation the wife would accumulate by the time she retires – Appeal allowed and orders set aside – Matter remitted for rehearing – Cost certificates granted for the appeal and rehearing.

Family Law Act 1975 (Cth) s 75(2)
Federal Proceedings (Costs) Act 1981 (Cth)

Black v Kellner (1992) 15 Fam LR 343
Bugmy v The Queen (2013) 249 CLR 571
De Winter v De Winter (1979) 23 ALR 211
Farmer & Bramley (2000) FLC 93-060
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Metwally v University of Wollongong (1985) 60 ALR 68
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Warren v Coombes (1979) 142 CLR 531
Weir v Weir (1992) 16 Fam LR 154
Zalewski & Zalewski (2005) FLC 93-241

APPELLANT:

Ms Molloy

RESPONDENT:

Mr Molloy

FILE NUMBER:

SYC

3838

2014

APPEAL NUMBER:

180

2016

DATE DELIVERED:

24 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Aldridge & Gill JJ

HEARING DATE:

8 September 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 September 2016

LOWER COURT MNC:

[2016] FCCA 2400

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Druitt

SOLICITOR FOR THE APPELLANT:

Marsdens Law Group

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

GA Lawyers

Orders

The Application in an Appeal filed on 12 May 2017 be dismissed.
The appeal be allowed and the orders made on 22 September 2016 be set aside.
The matter…

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 [2017] FamCAFC 254
Case: [2017] FamCAFC 254
Decision Date: 24 November 2017

CaseChat Overview and Summary

In the matter of Molloy and Molloy, the parties were in dispute regarding property settlement and spousal maintenance. The matter was heard in the Family Court of Australia. The wife, Molloy, appealed against the decision of the Federal Circuit Court of Australia, which had dismissed her appeal against the orders made by the Family Court. The wife sought a review of the orders made by the Family Court, and the husband opposed the application.

The legal issues in this case involved the principles of property settlement and spousal maintenance in the context of a divorce. The court had to determine whether the orders made by the Family Court were just and equitable, and whether the wife's appeal should be allowed. The court also had to consider whether the orders made by the Federal Circuit Court were correct and whether the matter should be remitted for rehearing by a different judge.

The court found that the orders made by the Family Court were not just and equitable, and that the wife's appeal should be allowed. The court held that the Federal Circuit Court had erred in law by failing to consider the wife's contribution to the marriage and the husband's ability to pay spousal maintenance. The court also found that the orders made by the Federal Circuit Court were not correct, and that the matter should be remitted for rehearing by a different judge. The court held that the wife was entitled to a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth), and that the husband was also entitled to a costs certificate. The court granted costs certificates to both parties in respect of the new trial ordered.

The court dismissed the application in an appeal filed on 12 May 2017, allowed the appeal, set aside the orders made on 22 September 2016, and remitted the matter for rehearing by the Federal Circuit Court of Australia to be heard by a judge other than Judge Henderson. The court made no order as to costs, but granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

The Application in an Appeal filed on 12 May 2017 be dismissed.

The appeal be allowed and the orders made on 22 September 2016 be set aside.

The matter is remitted for rehearing by the Federal Circuit Court of Australia to be heard by a judge other than Judge Henderson.

There be no order as to costs.

The Court grants to the appellant wife a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by her in relation to the appeal.

The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by him in relation to the appeal.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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