Rattray & Macauley - [2023] FedCFamC2F 1011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rattray & Macauley [2023] FedCFamC2F 1011

File number(s): PAC 2013 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 11 August 2023

Catchwords: FAMILY LAW – PROPERTY – Just and equitable Orders made.

Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2), 106A

Cases cited: Lotta & Lotta [2017] FamCA 50

Division: Division 2 Family Law

Number of paragraphs: 69

Date of hearing: 24–25 July 2023

Place: Parramatta

Counsel for the Applicant: Mr Harper

Solicitor for the Applicant: Arch Law (Australia) Pty Ltd

Counsel for the Respondent: Mr Schonell

Solicitor for the Respondent: Swaab Attorneys

ORDERS

PAC 2013 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RATTRAY

Applicant

AND:
MS MACAULEY

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

11 AUGUST 2023

ON A FINAL BASIS THE COURT ORDERS THAT:
1.The wife’s Application in a Proceeding filed 14 July 2023 is dismissed.
2.The Application in a Proceeding filed on 31 July 2023 is listed on 7 September 2023 at 10.30am for determination of the husband’s partner’s costs application.
3.Within 21 days of the date of these Orders the wife is to file and serve any Response and any affidavit upon which she relies in respect of the above Application in a Proceeding.
4.The wife’s oral application for an adjournment of the final hearing is dismissed.
5.Within four months of the making of these Orders the following shall occur simultaneously:
(a)the wife shall pay to the husband the sum of $398,000.
(b)the husband shall do all acts and things and sign all documents necessary to cause the transfer to the wife of all his right title and interest in the property situated at and known as B Street, Suburb C NSW (“the B Street, Suburb C property”) being the whole of the land in Folio Identifier ….
(c)the wife do all acts and things and sign all necessary documents to discharge the mortgage secured over the Suburb C property and refinance that mortgage in her sole name.

And the wife shall indemnify and keep indemnified the husband in respect of all liabilities in relation to the Suburb C property whenever and however arising.
6.Pending the above transfer of the husband’s right title and interest in the Suburb C property to the wife, the wife shall be responsible for all mortgage payments, statutory rates and charges, other utilities, insurance, outgoings, and expenses in relation to the Suburb C property incurred prior to the date of the transfer and shall make all such payments as and when they fall due and hereby indemnifies the husband in respect of all other liabilities incurred prior to the date of transfer.
7.Failing the wife paying to the husband the above sum of $398,000 within four (4) months of the making of these Orders, that the husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of the Suburb C property and…

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 Rattray & Macauley

Details

AGLC: Rattray & Macauley [2023] FedCFamC2F 1011
Case: [2023] FedCFamC2F 1011
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia (Division 2), the case Rattray & Macauley was heard, involving a final property hearing between Mr Rattray and Ms Macauley. The dispute centered around the equitable division of property and assets following the breakdown of their marriage. The Court dismissed Ms Macauley's application for an urgent hearing, appointment of a single expert witness, and amendments to her response, finding them without merit. The central issue was whether it was just and equitable to alter the property interests of the parties. The Court considered the contributions made by both parties, the existing legal and equitable interests in the property, and the liabilities and financial resources of the parties at the time of the hearing.

The Court determined that it was just and equitable to alter the property interests of the parties. It assessed the contributions to non-superannuation assets as 55% to the wife and 45% to the husband, resulting in a disparity of $99,500 in the wife's favor. After considering section 75(2) factors, the Court adjusted the contributions to 60% for the wife and 40% for the husband, resulting in a disparity of $199,000. The Court ordered that Ms Macauley has four months to pay Mr Rattray $398,000 in return for him transferring his interest in the Suburb C property to her. If she fails to do so, the property will be sold, with the proceeds divided according to the adjusted contributions. Each party will retain their superannuation assets. The Court's proposed property adjustment orders were deemed just and equitable.

Orders