PALSER & PALSER - [2020] FCCA 2791

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALSER & PALSER

[2020] FCCA 2791

Catchwords:
FAMILY LAW – Property Settlement.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79(2), (4)

Cases cited:

Stanford & Stanford (2012) FLC93-518

Bevan & Bevan (1995) FLC 93-572

Clauson & Clauson (1995) FLC92-595

Applicant:

MS PALSER

Respondent:

MR PALSER

File Number:

LNC 798 of 2019

Judgment of:

Judge McGuire

Hearing dates:

6 & 7 October 2020

Date of Last Submission:

7 October 2020

Delivered at:

Hobart

Delivered on:

5 November 2020

REPRESENTATION

Counsel for the Applicant:

Ms K Mooney

Solicitors for the Applicant:

McVeity Dean

Counsel for the Respondent:

Mr J Petersen

Solicitors for the Respondent:

Petersen Legal

ORDERS

That the net property of the parties inclusive of superannuation be divided as to 60% to the wife and 40% to the husband.
That the parties bring in settled and particularised orders within twenty-eight (28) days of the date of these orders.
That the parties and each of them have liberty to apply in respect of the particularising of the orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 798 of 2019

MS PALSER

Applicant

And

MR PALSER

Respondent

REASONS FOR JUDGMENT

Applications

These are proceedings for property settlement. The applicant is the wife. After a relationship of some 27 years duration each of the parties asks for orders giving them 60% of the net property pool.

The Issues

Whilst the parties are substantially in agreement as to the contents and value of the property pool. They disagree as to the value of a Bulldozer. The husband adduces evidence from Mr B, Manager for D Company, who values the item at $170,000 to $180,000. The wife adduces evidence from Mr E, senior auctioneer and certified practising valuer, who values the machine at $220,000.
Secondly, the parties are at issue in respect of the wife's claimed loan liability to her mother's company, F Company, for $22,788 being, she claims, a loan obtained to pay ongoing legal costs. The wife says that the husband has met his ongoing legal costs from income earned primarily from jointly owned plant and equipment since separation whereas she has had to obtain a personal loan to meet her legal costs. The husband claims that the alleged debt, if it is legitimate at all, constitutes a gift rather than a loan.
Thirdly, the wife seeks 'add-backs' to the property pool in respect of two amounts of $30,521.08 received by the husband from G Ltd post separation and $13,907.52 received from H Company also post separation which I calculate to total $44,428.60. The wife argues that these were payments received by the husband due and owing to the previous partnership operated by the husband and wife. The husband admits receipts of the monies but says that they were legitimately spent on the continuation of the business and/or the payment down of debts…

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 PALSER & PALSER

Details

AGLC: PALSER & PALSER [2020] FCCA 2791
Case: [2020] FCCA 2791
Decision Date: 5 November 2020

CaseChat Overview and Summary

In the matter of *Palser & Palser*, heard before Judge McGuire, the dispute concerned the division of the parties' net property, including superannuation interests, following their separation.

The court was required to determine the appropriate percentage split of the parties' net property.

Judge McGuire ordered that the net property of the parties, inclusive of superannuation, be divided as to 60% in favour of the wife and 40% in favour of the husband. The parties were directed to bring in settled and particularised orders within twenty-eight days of the date of these orders, with liberty to apply in respect of the particularising of those orders.

Orders

Orders of the court

That the net property of the parties inclusive of superannuation be divided as to 60% to the wife and 40% to the husband.

That the parties bring in settled and particularised orders within twenty-eight (28) days of the date of these orders.

That the parties and each of them have liberty to apply in respect of the particularising of the 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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