TORRENCE & MCCANN - [2019] FCCA 2260

FEDERAL CIRCUIT COURT OF AUSTRALIA

TORRENCE & MCCANN

[2019] FCCA 2260

Catchwords:
FAMILY LAW –Property – marriage in excess of twenty years – marriage produced three children two of whom are now adult – assessment of contributions – contributions assessed as being equal – parties’ major asset is their former family home – wife seeks to retain home to provide accommodation for herself and dependent child – wife has recently returned to paid workforce and is a modest wage earner – husband was major breadwinner during marriage – husband diagnosed with end stage renal failure – husband requires dialysis three times per week – wife has limited capacity to borrow – husband likely to face difficulties maintaining employment due to ill health – husband seeks sale of house in order to liberate capital to support himself and provided accommodation – husband currently living with relatives – wife contends it would be unfair for property to be sold depriving her of the security of accommodation in circumstances in which she child support is likely to be irregular – parties have disparity of superannuation – mix and match of assets – assessment of parties’ different but significant prospective needs – what is just and equitable outcome in circumstance where asset pool is modest but needs of parties are great.

Legislation:
Family Law Act 1975 (Cth), ss.75(2), 79
Evidence Act1995 (Cth), s.140

Cases cited: Bevan & Bevan [2013] FamCAFC 116 Biltoft & Biltoft (1995) FLC 92-614 Clauson & Clauson (1995) FLC 92-595 D & D [2003] FamCA 473 Ferraro v Ferraro (1993) FLC 92-335 Fox v Percy (2003) 214 CLR 118 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 Lee Steere v Lee Steere (1985) FLC 91-626 L & L (2006) FLC 93-254 Pierce & Pierce (1999) FLC 92-844 Russell & Russell [1999] FamCA 1875 Stanford v Stanford [2012] HCA 52 Steinbrenner & Steinbrenner [2008] Fam CAFC 193 Wardman & Hudson (1978) FLC 90-466 Waters & Jurek (1995) FLC 92-635 Watson & Ling [2013] FamCA 57
Applicant:	MR TORRENCE

Respondent:

MS MCCANN

File Number:

ADC 3325 of 2018

Judgment of:

Judge Brown

Hearing date:

9 July 2019

Date of Last Submission:

26 July 2019

Delivered at:

Adelaide

Delivered on:

23 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Pengallo

Solicitors for the Applicant:

Polson Legal

Counsel for the Respondent:

Mr Jordan

Solicitors for the Respondent:

Jordan & Fowler

ORDERS

In full and final settlement of all claims for settlement of matrimonial property:

Within sixty (60) days of today’s date the husband do transfer to the wife, at her expense, all his interest, both in law and in equity, in the former matrimonial home situated at B Street, Suburb C, in the State of South Australia and being the land contained in certificate of title … (hereinafter referred to as “the former matrimonial home”).
That contemporaneously with the transfer referred to in order (1) above, the wife pay to the husband the sum of sixty five thousand dollars ($65,000.00).
Upon the transfer…

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: TORRENCE & MCCANN [2019] FCCA 2260
Case: [2019] FCCA 2260
Decision Date: 23 August 2019

CaseChat Overview and Summary

This matter concerned a dispute between a husband and wife regarding the division of their matrimonial property. The parties had been married for over twenty years and had three children, two of whom were adults. The primary asset in dispute was their former family home. The wife sought to retain the home for accommodation for herself and their dependent child, while the husband, who was suffering from end-stage renal failure requiring regular dialysis, sought the sale of the home to access capital for his support and accommodation.

The court was required to determine a just and equitable outcome in circumstances where the asset pool was modest, but the prospective needs of both parties were significant. Key issues included the assessment of the parties' contributions to the marriage, the disparity in their superannuation entitlements, and how to balance the wife's need for secure accommodation against the husband's pressing health and financial needs. The court also had to consider the wife's recent return to the paid workforce and her limited borrowing capacity, as well as the husband's likely difficulties in maintaining employment due to his ill health.

Judge Brown reasoned that while the parties' contributions were assessed as equal, their differing and significant prospective needs necessitated a careful balancing act. The court acknowledged the wife's desire for accommodation security, particularly given potential irregularities in child support, and the husband's urgent need for capital due to his serious health condition. The court ultimately ordered that the husband transfer his interest in the former matrimonial home to the wife, subject to the wife paying the husband $65,000. The parties were also ordered to discharge the mortgage on the home, with the wife indemnifying the husband. The remaining assets were to be retained by each party respectively.

Orders

Orders of the court

In full and final settlement of all claims for settlement of matrimonial property:

Within sixty (60) days of today’s date the husband do transfer to the wife, at her expense, all his interest, both in law and in equity, in the former matrimonial home situated at B Street, Suburb C, in the State of South Australia and being the land contained in certificate of title … (hereinafter referred to as “the former matrimonial home”).

That contemporaneously with the transfer referred to in order (1) above, the wife pay to the husband the sum of sixty five thousand dollars ($65,000.00).

Upon the transfer of the former matrimonial home contemporaneously with the payment referred to in order (2) the husband and wife shall forthwith discharge the mortgage secured against the former matrimonial home and the wife shall keep the husband indemnified in respect of such mortgage and all other outgoings and liabilities in respect of the former matrimonial home.

Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:

(a) the furniture and furnishings in his possession, power and control;

(b) the AMP life policies in his name;

(d) all savings, shares and investments in his name;

(e) any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in his name;

(f) his personal effects; and

(g) any other real and/or personal property and/or financial resources of the husband or in the husband’s name and/or possession not otherwise specified herein.

Including but without limiting the effect hereof, the wife shall retain for her sole use and benefit absolutely free from any further claim or demand of the husband:

(a) the furniture and furnishings in her possession, power and control;

(b) any motor vehicle in her possession;

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in her name;

(e) her personal effects.

(f) any other real and/or personal property and/or financial resources of the wife or in the wife’s name and/or possession not otherwise specified herein.

All 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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