Truman and Truman - [2018] FCCA 359

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRUMAN & TRUMAN

[2018] FCCA 359

Catchwords:
FAMILY LAW – Property Settlement – respondent wife deceased – contributions and s.75(2) factors – issues of credit.

Legislation:

Family Law Act 1975, ss.75 (2), (o), 79, (d) – (g), (2), (4)

Evidence Act 1996 (Cth), s.140

Cases cited:

Re: Litigants In Person Guidelines (2001) FLC 93-072
Kowaliw v Kowaliw (1981) FLC 91 – 092
Stanford & Stanford (2012) 247 CLR 108
Russell v Russell (1976) 134 CLR 495
Newbold & Chadwick [2018] FCCA 273
Omacini & Omacini (2005) FLC 93-218

Applicant:

MR TRUMAN

Respondent:

MS TRUMAN (DECEASED) (THROUGH CASE GUARDIAN MR A)

File Number:

LNC 616 of 2016

Judgment of:

Judge McGuire

Hearing date:

30 January 2018

Date of Last Submission:

30 January 2018

Delivered at:

Launceston

Delivered on:

8 March 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Ms K Mooney

Solicitors for the Respondent:

Feeney Family Law

ORDERS

That within forty-two (42) days of the date of these Orders the husband notify his election in writing to the respondent’s solicitors as to whether he intends to take title to the entirety of the property situate at Property A in Tasmania and, if so, then he make a lump sum payment of $282,108 to the respondent’s solicitors within a further period of twenty-eight (28) days and contemporaneously with such payment the respondent’s legal representative(s) sign all documents so as to transfer the respondent’s interest in the property at Property A in Tasmania to the applicant.
That provided that should the applicant not make an election to retain the Property A property then:
i)The applicant husband have sole use and occupation of the property until:
(a) The applicant’s death; or
(b) The applicant permanently vacating the property; or
(c)The applicant and the respondent’s legal personal representative(s) agreeing to sell the property.
ii)Provided that the applicant be solely responsible for payment for the property of all council rates, utilities and household and building insurances and maintain the property in a tidy, clean and proper state of repair.
That upon the activating of any of the situations in Order 2(i) hereof, the property at Property A in Tasmania be sold on terms as agreed between the parties and at a price agreed between the parties and failing agreement then as directed by the delegate of the President of the Real Estate Institute of Tasmania and the proceeds of sale be disbursed as follows:
i)To payment and reasonable costs and disbursements on the sale; and
ii)The balance in accordance with and to give effect to these Orders generally being as to 55% of the net tangible assets to the applicant husband and 45% of the net tangible assets to the respondent’s estate.
That the applicant forthwith transfer and/or vest all his right, title and interest in the following to the respondent’s personal representative(s) absolutely:
i)The benefit of the outstanding loan to Mr T; and
ii)All personalty, chattels, balances of any bank accounts or like investments, motor…

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 Truman and Truman

Details

AGLC: Truman and Truman [2018] FCCA 359
Case: [2018] FCCA 359
Decision Date: 8 March 2018

CaseChat Overview and Summary

In *Truman and Truman*, heard by Judge McGuire, the dispute concerned the division of property and financial resources between the parties. The orders made by the court addressed the disposition of a property, various assets and liabilities, and the finalisation of the parties' financial relationship.

The court was required to determine how the parties' property and financial resources should be divided, including the future of a specific property. This involved considering the husband's potential election to retain the property, the terms of his occupation if he did not elect to retain it, and the eventual sale and distribution of proceeds. The court also had to address the transfer of various personalty, chattels, bank accounts, motor vehicles, and superannuation entitlements, as well as the allocation of liabilities incurred by each party.

The court's reasoning, as reflected in the orders, aimed to achieve a final determination of the parties' financial relationship pursuant to section 81 of the *Family Law Act 1975*. The orders provided a mechanism for the husband to elect to purchase the respondent's interest in the property, or alternatively, to retain sole use and occupation of the property until certain events occurred, at which point the property would be sold. The proceeds of sale and other net tangible assets were to be divided with a 55% share to the applicant husband and 45% to the respondent's estate. The orders also stipulated the immediate transfer of specific assets and liabilities between the parties, with each party indemnifying the other in respect of liabilities associated with retained assets and liabilities incurred since separation.

Orders

Orders of the court

That within forty-two (42) days of the date of these Orders the husband notify his election in writing to the respondent’s solicitors as to whether he intends to take title to the entirety of the property situate at Property A in Tasmania and, if so, then he make a lump sum payment of $282,108 to the respondent’s solicitors within a further period of twenty-eight (28) days and contemporaneously with such payment the respondent’s legal representative(s) sign all documents so as to transfer the respondent’s interest in the property at Property A in Tasmania to the applicant.

That provided that should the applicant not make an election to retain the Property A property then:

i) The applicant husband have sole use and occupation of the property until:

(a) The applicant’s death; or

(b) The applicant permanently vacating the property; or

ii) Provided that the applicant be solely responsible for payment for the property of all council rates, utilities and household and building insurances and maintain the property in a tidy, clean and proper state of repair.

That upon the activating of any of the situations in Order 2(i) hereof, the property at Property A in Tasmania be sold on terms as agreed between the parties and at a price agreed between the parties and failing agreement then as directed by the delegate of the President of the Real Estate Institute of Tasmania and the proceeds of sale be disbursed as follows:

i) To payment and reasonable costs and disbursements on the sale; and

ii) The balance in accordance with and to give effect to these Orders generally being as to 55% of the net tangible assets to the applicant husband and 45% of the net tangible assets to the respondent’s estate.

That the applicant forthwith transfer and/or vest all his right, title and interest in the following to the respondent’s personal representative(s) absolutely:

i) The benefit of the outstanding loan to Mr T; and

ii) All personalty, chattels, balances of any bank accounts or like investments, motor vehicles and superannuation entitlements in the name of or to the benefit of the respondent as at the date of these orders.

That the respondent forthwith transfer and/or vest all her right, title and interest in the following to the applicant absolutely:

i) All personalty, chattels, balances of any bank accounts or like investments, motor vehicles and superannuation entitlements and shareholdings in the name of or to the benefit of the applicant as at the date of these orders.

That each party be solely responsible for and indemnify the other in respect of the following liabilities:

i) Any and all liabilities attaching to any of the assets retained by that party pursuant to these orders; and

ii) Any and all liabilities incurred by that party since separation in either joint names or in that party’s name alone.

That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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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