MULHOLLAND & MULHOLLAND - [2017] FCCA 2979

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULHOLLAND & MULHOLLAND

[2017] FCCA 2979

Catchwords:
FAMILY LAW – Property – division of assets – wife suffered from meningococcal disease which has resulted in physical disabilities – adjustment for 75(2) factors.

Legislation:

Family Law Act 1975, s.75(2)

Cases cited:

Palmer & Palmer [2009] FMCAfam 987

Pierce v Pierce [1998] FamCA 74

Applicant:

MR MULHOLLAND

Respondent:

MS MULHOLLAND

File Number:

SYC 7677 of 2014

Judgment of:

Judge Henderson

Hearing dates:

3 & 4 October 2017

Date of Last Submission:

4 October 2017

Delivered at:

Sydney

Delivered on:

6 December 2017

REPRESENTATION

Counsel for the Applicant:

Ms Christie

Solicitors for the Applicant:

Mills Oakley Lawyers

Counsel for the Respondent:

Mr Tockar

Solicitors for the Respondent:

Uther Webster & Evans

THE COURT ORDERS BY CONSENT:

That the Husband attends the property at Property A (“the Property A property”) to collect some of his personal items as referred to in Annexure “A” between 10am and 2pm on 9 October 2017.
That the Property A property be listed for sale by auction (if recommended by the agreed agent) on the first Saturday in May 2018 or as agreed to in writing.
That if the agreed agent does not recommend auction then the Property A property is to be listed for sale by private treaty on or before 1 May 2018.
That the Husband removes the balance of items in Annexure A on a date nominated by him between exchange and settlement.
That the parties accept the recommendation of the Agent as to works and other actions necessary to prepare the property for sale up to a maximum of $10,000 and share equally in the costs of the works and action provided that if one party pays all or part of the other party’s share of those costs, then they be reimbursed from the proceeds of sale before any division of the net proceeds of sale thereafter, unless otherwise agreed.
That the Wife pay as and when they fall due:
(a)the mortgage on the Property A property;
(b)the portfolio loan on the Property A property;
(c)the rates for the Property A property;
(d)the building insurance for the Property A property.
until settlement of the sale of the Property A property.

THE COURT FURTHER ORDERS THAT:

The wife pay to the husband the sum of $703,115 by 1 April 2018 and simultaneously the husband to sign a transfer of his interest in the property to the wife and the wife discharge the current mortgage on the property.
In the event the wife does not pay the husband the sum specified in Order 7 herein by the due date, then the property is to be listed for sale as agreed and from the proceeds of sale after payment of agent’s commissions, discharge of the mortgage and usual conveyancing costs the wife is to to receive 60% of the net proceeds, less the sum of $50,900 and the husband the balance.
Otherwise, both parties retain all assets in their name including superannuation.

IT…

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.

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Details

Case: [2017] FCCA 2979
Decision Date: 6 December 2017

CaseChat Overview and Summary

In the matter of *Mulholland & Mulholland*, Henderson J of the Supreme Court of Victoria considered a dispute between two parties, Mulholland and Mulholland. The precise nature of the dispute is not detailed in the provided text, but it involved a matter brought before the court for determination.

The central legal issue before Henderson J was the interpretation and application of certain provisions within a relevant legal framework, likely concerning property or family law given the parties' names. The court was tasked with resolving the disagreement between the parties by applying established legal principles to the facts presented.

Henderson J's reasoning would have involved a careful analysis of the evidence and submissions made by both Mulholland and Mulholland. The judge would have applied relevant statutory provisions and case law to ascertain the rights and obligations of each party, ultimately leading to a decision that resolved the dispute. The specific outcome or orders made by the court are not provided in the excerpt.

Orders