Prosser and Prosser & Anor - [2020] FamCA 378

FAMILY COURT OF AUSTRALIA

PROSSER & PROSSER AND ANOR

[2020] FamCA 378

FAMILY LAW – PROPERTY – CONSTRUCTIVE TRUST – where the pool of assets is modest – where the Applicant purchased an investment property with marital assets during the relationship – where the Applicant’s adult sons discharged the mortgage over the property and the property was subsequently transferred to one of them – where the Court finds that an interest in the property is held on Constructive Trust for the Applicant and Respondent – where an adjustment is made in favour of the husband in consideration of s75(2) – where none of the three parties’ proposed orders achieve justice and equity

Family Law Act 1975 (Cth) ss 106B, 90AE, 75(2), 79(4)

Prosser & Prosser & Anor [2018] FamCA 1077
Hickey & Hickey (2003) FLC 93-143
Elias & Elias (1977) 3 Fam LR 11496
Zubcic & Zubcic & Anor (2019) FLC 93-918
Biltoft & Biltoft (1995) FLC 92-614
Stanford & Stanford [2012] HCA 52
Robb & Robb (1995) FLC 92-555

APPLICANT:

Ms Prosser

FIRST RESPONDENT:

Mr A Prosser

SECOND RESPONDENT:

Mr J

FILE NUMBER:

BRC

1320

2015

DATE DELIVERED:

22 May 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

25 & 26 February 2019, with final submissions received 24 April 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr A Cooper
Cooper Family Law

COUNSEL FOR THE FIRST RESPONDENT:

Mr S Priestley

SOLICITOR FOR THE FIRST RESPONDENT:

Parker & Kissane

SOLICITOR FOR THE SECOND RESPONDENT:

Mr A Cooper
Cooper Family Law

Orders

That within fourteen (14) days, the parties shall confer and seek to reach agreement on a form of order which is consistent with the Reasons for Judgment delivered today.
That if the parties are unable to reach agreement, then by 12 June 2020 each party shall sent to the Associate to the Honourable Justice Baumann by email to ... the minute of order they say is consistent with the Reasons delivered.
That in the absence of either party seeking to be further heard, the Court shall consider competing draft minutes of order and pronounce an order, from Chambers, by 19 June 2020.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prosser & Prosser has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1320 of 2015

Ms Prosser

Applicant

And

Mr A Prosser

First Respondent

And

Mr J

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant wife Ms Prosser and the First Respondent husband Mr A…

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.

Keep reading for free

Create a free CaseChat account to read Prosser and Prosser & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FamCA 378
Decision Date: 22 May 2020

CaseChat Overview and Summary

In *Prosser and Prosser & Anor*, the parties involved were Mr. Prosser and Ms. Prosser, and a third party, in proceedings before Baumann J of the Supreme Court of Victoria. The precise nature of the dispute is not detailed in the provided text, but it is evident that the court has delivered Reasons for Judgment, indicating a determination of substantive legal issues.

The primary legal issues before the court, as evidenced by the orders made, concerned the form of the final orders to be entered. The court was required to facilitate the parties' agreement on these orders, or in the absence of agreement, to determine the appropriate form of order based on its previously delivered Reasons for Judgment.

Baumann J's reasoning, as reflected in the orders, prioritised party agreement on the form of the orders. The court directed the parties to confer and attempt to reach a consensus within a specified timeframe. Should they fail to agree, the court provided a mechanism for it to consider competing draft orders submitted by each party and to pronounce a final order without further oral hearing. This approach underscores the court's intention to ensure the final orders accurately reflect its substantive findings and to promote efficiency in the finalisation of the proceedings.

Orders

Orders of the court

That within fourteen (14) days, the parties shall confer and seek to reach agreement on a form of order which is consistent with the Reasons for Judgment delivered today.

That if the parties are unable to reach agreement, then by 12 June 2020 each party shall sent to the Associate to the Honourable Justice Baumann by email to ... the minute of order they say is consistent with the Reasons delivered.

That in the absence of either party seeking to be further heard, the Court shall consider competing draft minutes of order and pronounce an order, from Chambers, by 19 June 2020.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.