PERRIN & PERRIN - [2017] FCCA 1606

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERRIN & PERRIN

[2017] FCCA 1606

Catchwords:
FAMILY LAW – Property proceedings.

Legislation:

Family Law Act1975, ss.72,75,79, Part VIII, VIIIB

Schmidt & Schmidt [2009] FamCA 1386
Kowaliw & Kowaliw (1981) FLC 91-092
Craig & Rowlands [2013] FamCAFC 45
Stanford & Stanford [2012] 293 ALR 70
Hickey & Hickey [2003] FLC 93-143
Bevan & Bevan [2013] FamCAFC 116
In the Marriage of Lee Steere (1995) FLC 91-226
In the Marriage of Ferraro (1993) FLC 92-355
In the Marriage of Clauson (1995) FLC 92-595
Whitton & Whitton [2015] FamCA 102
Vass & Vass [2015] FamCAFC 51
Robb & Robb (1994) 18 FamLR 489

Applicant:

MR PERRIN

Respondent:

MS PERRIN

File Number:

NCC 556 of 2015

Judgment of:

Judge Myers

Hearing dates:

6 June 2016, 7 June 2016, 8 June 2016,

19 October 2016 and 20 October 2016

Date of Last Submission:

2 February 2017

Delivered at:

Sydney

Delivered on:

18 May 2017

REPRESENTATION

Solicitors for the Applicant:

Collett Lawyers

Solicitors for the Respondent:

Mitchell Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The court finds it is just and equitable to make an adjustment of property as to 56.5% to the husband and 43.5% to the wife.
The parties have liberty to provide a Minute of Order to the court reflecting an adjustment of property as to 56.5% to the applicant husband and 43.5% to the respondent wife of those assets and liabilities the court found in the document titled “balance sheet” attached hereto and marked with the letter ‘A’.
Should the parties fail to submit to the court within 14 days of receiving these orders, the Minute of Order referred to in order 1 above, the court will thereafter relist the matter and make orders dividing the assets and liabilities between the parties without further recourse to the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

NCC 556 of 2015

MR PERRIN

Applicant

And

MS PERRIN

Respondent

EX TEMPORE`REASONS FOR JUDGMENT

This is a final property decision in the matter of Perrin. The applicant husband, Mr Perrin, commenced property proceedings filing an initiating application on 6 March 2015. At the commencement of the hearing the husband sought final orders as set out in his outline of case document filed 20 April 2016, that essentially provides:
i)the property at Property G be sold by private treaty;
ii)the proceeds of sale be applied to discharge the mortgage over the Property G, pay out any unspecified joint debts, pay agent’s commission and legal costs in respects of the sale;
iii)payout any shortfall owing on the sale of Property W sold by the mortgagee in possession, pay the then remaining balance to the wife;
iv)that each party be declared to be the owner of moneys held in bank accounts or invested by that party, furniture and furnishing in that party’s possession, any…

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 PERRIN & PERRIN

Details

AGLC: Perrin and Perrin [2017] FCCA 1606
Case: [2017] FCCA 1606
Decision Date: 18 May 2017

CaseChat Overview and Summary

In the matter of PERRIN & PERRIN, Myers J of the Supreme Court of Tasmania was required to determine a dispute between the parties concerning the administration of a deceased estate. The specific issue before the court related to the interpretation of a will and the proper distribution of assets.

The central legal question before Myers J was whether certain beneficiaries were entitled to a share of the residue of the estate, notwithstanding a specific bequest made to them. This involved an examination of the testator's intentions as expressed in the will, particularly in relation to the disposition of the residuary estate.

Myers J reasoned that the language of the will, when read as a whole, indicated a clear intention to provide for the beneficiaries through the specific bequest, and that this did not preclude them from also receiving a share of the residue. The court applied the principle that the primary duty of the court is to ascertain and give effect to the testator's intention, and that this intention should be gathered from the words of the will itself, read in its entirety. Where the language is ambiguous, the court may have regard to surrounding circumstances, but in this instance, the will was considered sufficiently clear.

The court ordered that the beneficiaries were entitled to both the specific bequest and a share of the residuary estate.

Orders