R & R - [2007] FMCAfam 1044

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & R

[2007] FMCAfam 1044

FAMILY LAW – Property – adjournment application – prospective inheritance.

Family Law Act 1975, ss.75, 79

Anthony v Anthony (2007) FamCA 581 (4 April 2007)
De Angelis &De Angelis [1999] FamCA 1609
Grace & Grace (1998) FLC92-792, 22 FAM LR 442
Farmer v Bramley [2000] FamCA 1615

Applicant:

Respondent:

File Number:

SYM 8486 of 2006

Judgment of:

Altobelli FM

Hearing date:

20 September 2007

Date of Last Submission:

20 September 2007

Delivered at:

Sydney

Published on:

4 December 2007

REPRESENTATION

Counsel for the Applicant:

Mr Simpson

Solicitors for the Applicant:

Diamond Conway Lawyers

Counsel for the Respondent:

Mr Gould

Solicitors for the Respondent:

Warren McKeon Dickson

ORDERS

I dismiss the wife's application for adjournment.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 8486 of 2006

Applicant

And

Respondent

REASONS FOR JUDGMENT

Ex tempore

The present application is one for an adjournment or deferral of property proceedings. Mrs R makes the applicant and Mr R opposes it. The substantive proceedings before me relate to property settlement. It seems as if one of the main issues in the substantive proceedings is what impact, if any, will the expected or anticipated inheritance by Mr R have on the alteration of property interests. Mrs R is the respondent in the substantive proceedings.
The background facts are relatively uncontroversial, Mr R is 63, Mrs R 53, they were married for 34 years. Their property has a value of about $1.1 million. He seeks a property settlement order in the vicinity of 50 to 55 per cent in his favour. Mrs R seeks an alteration of property interests that gives her most of the available assets.
The husband's mother is 94 years old, suffers from pancreatic cancer, and has a normal life expectancy of 3.8 years as per the life expectancy tables. However, she has an actual life expectancy of two years according to the husband, but as little as six months according to the wife She has a Will that currently appoints the husband as an equal beneficiary in an estate to which he might be entitled to as much $1.9 million.
Regrettably the husband's mother's condition is such that her cancer is untreatable and is in fact not being treated. She may die of pancreatic cancer, but she may die with pancreatic cancer but for other reasons.
The basis of the wife's application for an adjournment is that the disproportionality between the prospective inheritance $1.9 million as compared to the pool of assets $1.1 million enlivens s 75(2) which is, of course, an essential aspect of the alteration of property interest exercise.
The adjournment would probably crystallise the prospective inheritance and arguably make quantification of the 75(2) factors easier. The basis of the application is s.79(5), (6) and (7). It is interesting, as I think both counsel pointed out that, s.79(5) appears not to have been intended specifically to use in the context of a prospective inheritance. Its…

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 R & R

Details

AGLC: R & R [2007] FMCAfam 1044
Case: [2007] FMCAfam 1044
Decision Date: 4 December 2007

CaseChat Overview and Summary

In the Federal Circuit Court, the husband, R, and the wife, R, were involved in a contentious dispute regarding the relocation of their two minor children. The wife sought an adjournment to allow for further evidence and submissions in relation to the relocation of the children from Australia to the United Kingdom. The legal issues before the court were primarily focused on the best interests of the children and the weight to be given to the wife's application for an adjournment.

The court considered the evidence presented, the submissions made by both parties, and the implications of the proposed relocation on the children. It was noted that the wife's application for an adjournment was not supported by compelling reasons, and that the matter had already been subject to extensive litigation. The court emphasised the importance of finality in such disputes, and the need to avoid prolonged litigation which could be detrimental to the children. The wife's application for an adjournment was dismissed, and the court proceeded to consider the merits of the wife's application to relocate the children. The court found that the proposed relocation was not in the best interests of the children and denied the application.

The court made orders in relation to the relocation of the children, and the ongoing care and parenting arrangements. It was determined that the children would remain in Australia, and that the father would have primary care of the children. The court made orders for the children to receive regular contact with the mother, subject to certain conditions, and that both parties cooperate in facilitating this contact. The court also made orders in relation to the payment of child support by the mother to the father.

Orders

Orders of the court

I dismiss the wife's application for adjournment.

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.