TAYLOR & TAYLOR - [2015] FCCA 1251

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAYLOR & TAYLOR

[2015] FCCA 1251

Catchwords:
FAMILY LAW – Property – short de facto relationship – litigation guardian appointed – wife not available for cross-examination – wife’s Kennon claim not made out.

Legislation:

Family Law Act 1975, ss.4, 66, 74, 75, 79

Child Support (Assessment) Act1989 (Cth), s.117

Kennon & Kennon (1997) FLC 92-757, 22 Fam LR 1
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Stanford & Stanford [2012] HCA 52

Bevan & Bevan [2013] FamCAFC 116
Watson & Ling (2013) 49 Fam LR 303
Pierce & Pierce (1998) FLC 92-844
Williams & Williams [2007] FamCA 313
Bushby & Bushby (1988) FLC 91-919
Lane & Wharton [2010] FamCA 18
P & P [2002] FamCA 1006
DJM and JLM (1998) 23 Fam LR 396

Applicant:

MS TAYLOR

Respondent:

MR TAYLOR

File Number:

MLC 7672 of 2013

Judgment of:

Judge Harland

Hearing date:

2 March 2015

Date of Last Submission:

2 March 2015

Delivered at:

Melbourne

Delivered on:

15 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Skerlj

Solicitors for the Applicant:

M K Steele & Giammario

Counsel for the Respondent:

Mr Allen

Solicitors for the Respondent:

Martin Irwin & Richards

ORDERS

That pursuant to section 78 of the Family Law Act1975, each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a)all items of furniture, furnishings, personalty, chattels and jewellery;
(b)all monies (whether held in cash or in deposit with any financial institution);
(c)any motor vehicle;
(d)all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control or each or in which either has an interest which are not otherwise dealt with in these orders.
That within 30 days of the date of these orders the wife do all acts and things and sign all documents necessary to transfer all her right, title and interest in the property known as Property A, described in Certificate of Title Volume [omitted].
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders, then pursuant to section 106A of the Family Law Act 1975, the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
That all outstanding applications be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Taylor & Taylor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7672 of 2013

MS TAYLOR

Applicant

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 TAYLOR & TAYLOR

Details

AGLC: Taylor and Taylor [2015] FCCA 1251
Case: [2015] FCCA 1251
Decision Date: 15 May 2015

CaseChat Overview and Summary

In the matter of *Taylor & Taylor*, heard by Judge Harland, the dispute concerned the division of property between a husband and wife. The court was required to make orders regarding the ownership of various assets, including furniture, furnishings, personalty, chattels, jewellery, monies, motor vehicles, and superannuation interests.

The court determined the legal issues surrounding the equitable distribution of these assets between the parties. Pursuant to section 78 of the *Family Law Act 1975*, the court declared each party to be the sole and absolute owner at law and in equity of specific categories of property in their possession, custody, or control, or in which they held an interest, unless otherwise dealt with in the orders.

The court further ordered the wife to transfer all her interest in a property identified as Property A within 30 days. To ensure compliance, section 106A of the *Family Law Act 1975* was invoked, empowering the Registrar of the Federal Circuit Court of Australia, Melbourne Registry, to execute any necessary documents on behalf of a party who failed to do so. All outstanding applications were dismissed.

Orders

Orders of the court

That pursuant to section 78 of the Family Law Act 1975, each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:

(a) all items of furniture, furnishings, personalty, chattels and jewellery;

(b) all monies (whether held in cash or in deposit with any financial institution);

(d) all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;

in the possession, custody or control or each or in which either has an interest which are not otherwise dealt with in these orders.

That within 30 days of the date of these orders the wife do all acts and things and sign all documents necessary to transfer all her right, title and interest in the property known as Property A, described in Certificate of Title Volume [omitted].

That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders, then pursuant to section 106A of the Family Law Act 1975, the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.

That all outstanding applications be otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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