Talbott and Talbott & Anor - [2014] FamCA 193

FAMILY COURT OF AUSTRALIA

TALBOTT & TALBOTT AND ANOR

[2014] FamCA 193

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Just and equitable – Where each party worked throughout the marriage – Where there are two adult children of the marriage – Where each party benefitted from the receipt of inheritances – Where the husband and the adult son of the parties are engaged in a partnership –Where an adjustment is made pursuant to s 75(2) in favour of the husband.

Family Law Act 1975 (Cth) ss 79, 75(2), 114(1)(b).

Bevan & Bevan [2013] FamCAFC 116.
Bolger & Headon [2014] FamCAFC 27.
De Angelis & De Angelis (1999) FLC 93-133.
Dickons & Dickons [2012] FamCAFC 154.
Farmer & Bramley (2000) FLC 93-060.
G & G (1984) FLC 91-582.
Lovine & Connor & Anor (2012) FLC 93-515.
Mallet v Mallet (1984) 156 CLR 605.
Norbis & Norbis (1986) 161 CLR 513.
Stanford & Stanford (2012) 247 CLR 108.

Steinbrenner & Steinbrenner [2008] FamCAFC 193.
White & Tullock & White (1995) FLC 92-640.

APPLICANT:

Ms Talbott

FIRST RESPONDENT:

Mr D Talbott

SECOND RESPONDENT:

Mr K Talbott

FILE NUMBER:

BRC

2469

2010

DATE DELIVERED:

28 March 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

5 & 6 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGregor

SOLICITOR FOR THE APPLICANT:

Carswell and Company

FOR THE FIRST RESPONDENT:

Mr D Talbott in person

FOR THE SECOND RESPONDENT:

Mr K Talbott in person

Orders

IT IS ORDERED BY WAY OF FINAL ORDERS

That the First Respondent transfer to the Applicant all his right, title and interest in and to Lot A on Crown Plan … County of …, Parish of …, Title Reference … (Lot A).
That the First and Second Respondents transfer to the Applicant all their right, title and interests in and to the following:
(a)the 2005 Johnno’s Camper Trailer serial number …, registration number …;
(b)the Subaru Forrester motor vehicle registration number … presently in the possession of the Applicant;
(c)the following chattels currently located in and around Lot A:
(i)2006 Honda Quad
(ii)Massey 65 Tractor
(iii)Ford 4600 Tractor
(iv)Ford 5000 Tractor
(v)New Holland Hayliner
(vi)New Holland Haybine
(vii)Claas Comet Harvester
(viii)Massey Ferguson MF44 Wheel Loader
(ix)Bedford Tray Truck
(x)Homemade log splitting and sleeper bench
(xi)Fertilizer Spreader/Seeder
(xii)Rolls of barbed wire
(xiii)Bedford Rigid Tray Truck
(xiv)Molasses Storage Tank
(xv)Hay Trailer
(xvi)Quantity of old farm implements
(xvii)Fertilizer Broadcaster
(xviii)Grain Sorghum Bin
(xix)Fabricated Steel gates and cattle crush
(xx)Massey Planet
(xxi)Hardi duster
(xxii)Husqvarna chainsaw
(xxiii)Workshop tools
(xxiv)Taurus High Pressure Cleaner
(xxv)Workzone high pressure cleaner
(xxvi)Steel welding bench
(xxvii)Taurus Dremel drill kit
(xxviii)AMP Battery charger
(xxix)Assorted chainsaws
(xxx)Pneumatic nibbler, rattle gun & drill
(xxxi)Ryobi cordless drill
(xxxii)4 x 16” steel mags with tyres
(xxxiii)Lecia Laser Level with tripod
(xxxiv)2 x small gensets
(xxxv)Sheets of steel
(xxxvi)Steel rack with off cuts
(xxxvii)Assorted crab pots
(xxxviii)Manual rotary oil pump Hardwood railings and posts
(xxxix)Alloy irrigation pipe and black poly pipe
(xl)2 x 3…

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.

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Details

AGLC: Talbott and Talbott & Anor [2014] FamCA 193
Case: [2014] FamCA 193
Decision Date

CaseChat Overview and Summary

This case concerned a property settlement dispute before the Family Court of Australia, with Ms Talbott as the applicant and Mr D Talbott and Mr K Talbott as the first and second respondents respectively. The proceedings involved the division of assets and liabilities between the parties, including real estate, vehicles, farm equipment, and business interests.

The court was required to determine the appropriate division of the parties' property and liabilities, considering their respective contributions throughout the marriage, the future needs of each party, and the overall just and equitable outcome. This involved assessing various financial resources, including inheritances received by each party, and the implications of a partnership between the first respondent and the adult son of the marriage.

The court's reasoning focused on achieving a just and equitable distribution of the marital assets and liabilities, as mandated by the *Family Law Act 1975* (Cth). It considered the contributions of each party to the marriage, both financial and non-financial, and made an adjustment pursuant to s 75(2) of the Act in favour of the first respondent, likely to address future needs or other relevant factors. The court also addressed the release of the applicant from certain liabilities and provided for indemnities to protect her from future claims related to the first and second respondents' retained assets and business activities.

By way of final orders, the First Respondent was ordered to transfer his interest in a specific property (Lot A) to the Applicant. Both the First and Second Respondents were ordered to transfer various items of personal property, including a camper trailer, a motor vehicle, and a substantial list of farm and workshop equipment, to the Applicant. The Applicant was to retain specific trust monies, while the First Respondent was to retain several other properties and certain plant and machinery associated with a partnership. The orders also included detailed provisions for the release of encumbrances, indemnities for liabilities, and the allocation of specific debts and taxes.

Orders