SCHEER & SCHEER

This matter concerned an application by the Applicant, Mr Scheer, and the Respondent, Ms Scheer, in the Federal Circuit Court of Australia before Judge McNab. The dispute involved the division of property following a long marriage, with issues arising concerning the presumption of advancement in relation to funds provided to the parties' daughters, whether these funds should be added back to the asset pool or treated as a financial resource, and the potential for a constructive trust over property occupied by the wife's family. The court also considered the impact of domestic violence on the just and equitable division of assets and the assessment of contributions.

The court was required to determine whether the presumption of advancement applied to funds provided by the parties to their daughters and, if so, whether that presumption had been rebutted. Further, the court had to decide whether these funds should be treated as an asset to be added back to the divisible pool or as a financial resource of one of the parties. The court also considered whether a constructive trust arose over a property occupied by the wife's family. Finally, the court was tasked with making a just and equitable division of the parties' assets, taking into account the effect of domestic violence on contributions and the overall division.

The court's reasoning involved an analysis of the presumption of advancement and the evidence presented to rebut it. It considered the nature of the funds provided to the daughters and the intentions of the parties at the time of the transfers. The court also assessed the financial resources available to each party, including any potential claims over property. In determining the just and equitable division, the court weighed the contributions of each party, both financial and non-financial, and made adjustments to reflect the impact of domestic violence.

The court ordered the Respondent to pay the Applicant a sum of $698,174.00 within 60 days. Contemporaneously, the Applicant was to transfer his interest in two properties to the Respondent at her expense, and the Respondent was to discharge the mortgage over one of these properties. In the event of non-compliance, the property was to be sold, with proceeds applied first to sale costs, then to discharge the mortgage, then to satisfy the outstanding payment to the Applicant with interest, and finally, any balance to the Respondent. The court also made orders regarding the division of a superannuation interest, allocating a base amount to the Applicant and providing for future payments, and restrained the Respondent from taking actions that would defeat the Applicant's entitlement. Each party was otherwise entitled to property in their possession, and joint tenancies were severed. The question of costs was reserved.