Umber and Travers - [2014] FCCA 114

FEDERAL CIRCUIT COURT OF AUSTRALIA

UMBER & TRAVERS

[2014] FCCA 114

Catchwords:
FAMILY LAW – De facto property settlement – alleged cash contribution of $46,000.00 in suitcase by de facto wife.

Legislation:

Family Law Act 1975 ss.90SB, 90SF, 90SK, 90SM

Property (Relationships) Act 1984 (NSW)

Cases cited:
Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757
Stanford v Stanford (2012) 293 ALR 70
Hickey and Hickey (2003) FLC 93-143
Bevan & Bevan [2013] FamCAFC 116
In the marriage of Lee Steere (1985) FLC 91-626
In the marriage of Ferraro (1993) FLC 92-335
In the marriage of Clauson (1995) FLC 92-595
Russell and Russell [1999] FamCA 1875; (1999) FLC 92-877
Jones v Dunkel [1959] 101 CLR 298
Payne v Parker [1976] 1 NSWLR 191
Manly Council v/ Byrne & Anor [2004] NSWCA 123
Pierce and Pierce (1999) FKC 92-844
Kowaliw (1981) FLC 91-092
Esposito & Coster [2012] FamCAFC 118

Applicant:

MS UMBER

Respondent:

MR TRAVERS

File Number:

NCC 684 of 2011

Judgment of:

Judge Myers

Hearing dates:

14 June 2013 & 8 October 2013

Date of Last Submission:

8 October 2013

Delivered at:

Newcastle

Delivered on:

30 January 2014

REPRESENTATION

Counsel for the Applicant:

Mr Brady

Solicitors for the Applicant:

Renfrew Solicitors

Counsel for the Respondent:

Mr Wilkinson

Solicitors for the Respondent:

Winder Lawyer

ORDERS

That within 42 days the respondent pay to the applicant the sum of $120,253.53 as the applicant authorises and directs.
That otherwise as provided for in these orders each party retain and be declared to own all real property, chattels, motor vehicles, insurance policies, money in bank accounts, superannuation, shares in public or private companies, furniture furnishings and the like that stand in that parties name or that are in that parties possession as at the date of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 684 of 2011

MS UMBER

Applicant

And

MR TRAVERS

Respondent

REASONS FOR JUDGMENT

Proceedings

These proceedings relate to an application made by Ms Umber (hereinafter referred to as the “applicant”) pursuant to section 90SM of the Family Law Act1975 for adjustment of property against Mr Travers (hereinafter referred to as the “respondent”).
At the hearing the applicant relied on the following documents that the court has read and considered:
a)Initiating Application filed 17 March 2011;
b)Applicant’s Affidavit filed 17 March 2011;
c)Applicant’s Financial Statements filed 17 March 2011;
d)Outline of Case Document incorporating Chronology
e)Minute of Order sought by the Applicant dated 12 December 2012.
The applicant sought the following orders that are summarised or otherwise set out below as contained in the Minute of Order document relied upon at the hearing:
a)That the asset pool of the parties be divided by way of a 40% division to the applicant and 60% division to the respondent.
b)That the respondent place the property situated at and known as Property K…

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 Umber and Travers

Details

AGLC: Umber and Travers [2014] FCCA 114
Case: [2014] FCCA 114
Decision Date: 30 January 2014

CaseChat Overview and Summary

In *Umber and Travers*, heard before Judge Myers, the applicant sought and was awarded a sum of $120,253.53 from the respondent. The dispute concerned the division of property, with the court making specific orders regarding the distribution of various assets.

The primary legal issue before the court was the equitable distribution of the parties' property. This involved determining the quantum of financial resources to be transferred from one party to the other, as well as the division of other assets held individually by each party.

Judge Myers reasoned that the applicant was entitled to the specified sum, authorising and directing its payment by the respondent. The court further ordered that, apart from this monetary award, each party was to retain ownership of all real property, chattels, motor vehicles, insurance policies, bank accounts, superannuation, shares, furniture, and similar assets that were in their name or possession at the time of the orders.

Orders

Orders of the court

That within 42 days the respondent pay to the applicant the sum of $120,253.53 as the applicant authorises and directs.

That otherwise as provided for in these orders each party retain and be declared to own all real property, chattels, motor vehicles, insurance policies, money in bank accounts, superannuation, shares in public or private companies, furniture furnishings and the like that stand in that parties name or that are in that parties possession as at the date of these orders.

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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