PARNELL & PARNELL - [2015] FCCA 2929

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARNELL & PARNELL

[2015] FCCA 2929

Catchwords:
FAMILY LAW – Property application – 20 year marriage – modest pool of assets of $11,000.00 distributed at time of separation in 2007 with each party retaining their superannuation which was approximately equal – post separation husband receives inheritance – wife then files application alleging she has entitlement to the husband’s inheritance, wife alleges “waste” by the husband in relation to civil litigation dating back ten years and then abandons that claim during the trial, wife alleges violence by the husband to support a Kennon claim and abandons that claim – wife initially seeking considerable portion of the inheritance and reduces that claim during the trial – husband alleges sustained abuse by the wife to himself and a child – and his parents and sister for many years during the marriage – wife’s family violence and damage to property – smashing contents of house and husband’s car – wife’s threats to kill her husband and threats to burn her parents’ in law’s house – consideration of section 75 (2) factors – wife made no contribution to the husband’s inheritance – slight adjustment.

Legislation:

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

Kennon v Kennon (1997) FLC 92-757
Bonnici v Bonnici (1992) FLC 92-272
Bevis & Bevis [2014] FamCAFC 147
Sinclair & Sinclair [2015] FamCA 388
Wall & Wall [2002] FamCA 257
Jarrott & Jarrott (No.2) [2012] FamCAFC 72
Mehmet and Mehment (1987) FLC 91-801
Norbis v Norbis [1986] HCA 17
Waters & Jurek (1995) FLC 92-635
Bevan & Bevan [2013] FamCAFC 116
Stanford & Stanford (2012) FLC 93-495

Applicant:

MS PARNELL

Respondent:

MR PARNELL

File Number:

SYC 5537 of 2011

Judgment of:

Judge Willis

Hearing dates:

1 – 3 June 2015

Date of Last Submission:

3 June 2015

Delivered at:

Cairns

Delivered on:

23 November 2015

REPRESENTATION

Solicitors for the Applicant:

O'Sullivan Legal

Counsel for the Respondent:

Mr Millar

Solicitors for the Respondent:

Diamond Conway Lawyers

ORDERS

That within 60 days of the date of these Orders, the husband is to pay to the wife the sum of $37,500.00.
Except as specifically provided for by an Order to the contrary, as against the Husband, the Wife is the sole owner of, and the Husband has no interest in, all personal property (including choses in action) of whatsoever nature and kind in the possession or name of the wife as at the date of the making of these Orders.
Except as specifically provided for by any Order to the contrary, as against the Wife, the Husband is the sole owner of, and the Wife has no interest in, all personal property (including choses in action) of whatsoever nature and kind in the possession or name of the Husband as at the date of the making of these Orders.
The Husband shall indemnify the Wife from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the…

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 PARNELL & PARNELL

Details

AGLC: Parnell and Parnell [2015] FCCA 2929
Case: [2015] FCCA 2929
Decision Date: 23 November 2015

CaseChat Overview and Summary

In the matter of PARNELL & PARNELL, Judge Willis of the Federal Circuit Court of Australia made orders concerning the division of property and liabilities between the parties. The dispute involved the financial separation of the husband and wife.

The court was required to determine the appropriate orders for the division of personal property, the allocation of liabilities, and the payment of a sum of money from the husband to the wife. The court also considered the issue of costs, requiring submissions from the parties on this matter.

Judge Willis ordered the husband to pay the wife $37,500 within 60 days. The court further ordered that each party would be the sole owner of personal property in their respective possession or name, with no interest from the other party, except as otherwise specified. Both parties were also ordered to indemnify each other against any actions, claims, suits, or demands relating to liabilities in their own names. In the event of non-compliance with the orders, a Registrar of the Federal Circuit Court was appointed to execute necessary documents. The court also set out a process for parties to make submissions regarding costs.

Orders

Orders of the court

That within 60 days of the date of these Orders, the husband is to pay to the wife the sum of $37,500.00.

Except as specifically provided for by an Order to the contrary, as against the Husband, the Wife is the sole owner of, and the Husband has no interest in, all personal property (including choses in action) of whatsoever nature and kind in the possession or name of the wife as at the date of the making of these Orders.

Except as specifically provided for by any Order to the contrary, as against the Wife, the Husband is the sole owner of, and the Wife has no interest in, all personal property (including choses in action) of whatsoever nature and kind in the possession or name of the Husband as at the date of the making of these Orders.

The Husband shall indemnify the Wife from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Husband.

The Wife shall indemnify the Husband from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Wife.

In the event either party refuses or neglects to comply with any provision of this Order a Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these Orders.

Costs

Submissions are to be filed and served in relation to any costs application within 21 days of today’s date. Submissions ought to address the relevant provisions of the Act, and include a draft order with reference to the relevant scale or otherwise explaining the quantum.

Any submission in response to a costs application is to be filed and served 21 days from being served, with such submissions addressing the relevant sections of the Act, and addressing the quantum with reference to the scale or otherwise, accompanied by a draft order.

Unless the court determines otherwise or a party makes a request for a further appearance to be listed to hear the costs application, the costs application will proceed on the papers.

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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