Albert & Albert & Anor - [2012] FMCAfam 324

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALBERT & ALBERT & ANOR

[2012] FMCAfam 324

FAMILY LAW – Property – application for property orders – binding financial agreement – whether agreement between the parties is a binding financial agreement – just and equitable.

Family Law Act 1975, ss.71A, 75, 79, 81, 90C, 90D, 90G, 106A

Black v Black [2008] FamCAFC 7; (2008) 38 Fam LR 503; FLC 93-357
In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; FLC 93-143
In the Marriage of W (1980) 6 Fam LR 538; FLC 90-872

Applicant:

MS ALBERT

First Respondent:

MR ALBERT

Second Respondent:

MR C ALBERT

File Number:

WOC 172 of 2010

Judgment of:

Scarlett FM

Hearing date:

15 October 2010

Date of Last Submission:

15 October 2010

Delivered at:

Sydney

Delivered on:

24 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Alexander

Solicitors for the Applicant:

Verekers Lawyers Wollongong

Solicitor for the Respondents:

Mr Fong

Solicitors for the Respondents:

Just in Case Legal

ORDERS

Within forty-two (42) days from the date of these Orders the First and Second Respondent must do all acts and things necessary to discharge the mortgage over the property at Property H in the State of New South Wales to the effect that the sums loaned to the Second Respondent are repaid to the first Respondent.
Within fifty-six (56) days the First Respondent is to pay to the Applicant by way of settlement of property the sum of $131,448.50.
The Applicant is declared to be the sole legal and beneficial owner of all her right title and interest in:
(a)Toyota Rav 4 motor vehicle registered number [omitted];
(b)Her caravan and annex;
(c)All cash at bank and moneys invested by her in her sole name;
(d)Any superannuation entitlements received by her and invested by her or on her behalf; and
(e)All furniture, furnishings and items of personal use and adornment in her possession.
The Respondent is declared to be the sole legal and beneficial owner of all his right title and interest in:
(a)Ford Falcon motor vehicle registered number [omitted];
(b)All cash at bank and moneys invested by him in his sole name including all his Telstra shares;
(c)Any superannuation entitlements received by him and invested by him or on his behalf; and
(d)All furniture, furnishings and items of personal use and adornment in his possession.
In the event of either party neglecting or refusing to sign all or any necessary instruments to give effect to these orders or any of them, either party is at liberty to apply under the provisions of section 106A of the Family Law Act 1975 to the Court to seek the appointment of a Registrar or Deputy Registrar of the Court to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the said deed or instrument.
The above Orders are intended to determine finally the financial…

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 Albert & Albert & Anor

Details

AGLC: Albert & Albert [2012] FMCAfam 324
Case: [2012] FMCAfam 324
Decision Date: 24 April 2012

CaseChat Overview and Summary

The case of Albert & Albert & Anor was adjudicated in an Australian court, where the primary issue was the division of assets and financial obligations between the parties. The court was required to determine the distribution of personal and financial property following the cessation of a de facto relationship. This included resolving the status of a mortgage over a property, payment of certain sums, and the ownership of various assets and investments.

The legal issues before the court were multifaceted. They involved the interpretation and application of the Family Law Act 1975, particularly in relation to the division of property under section 79 and the determination of financial orders under section 90SM. The court also needed to consider whether there were any special considerations that warranted deviating from the equal division principle under section 75 and 76 of the Act.

In delivering its judgment, the court meticulously examined the evidence and submissions presented by both parties. It found that the Applicant was entitled to be declared the sole legal and beneficial owner of specific assets, while the Respondent was to retain ownership of others. The court also mandated that the Respondent must discharge the mortgage over the property to settle the Applicant’s loan, and that the Respondent must make a specified payment to the Applicant within a defined timeframe. The orders also provided for the appointment of a Registrar or Deputy Registrar to execute necessary documents if either party failed to comply.

The final orders of the court reflect a comprehensive resolution of the financial aspects of the de facto relationship, ensuring clarity and finality in the division of property and financial obligations between the parties.

Orders

Orders of the court

Within forty-two (42) days from the date of these Orders the First and Second Respondent must do all acts and things necessary to discharge the mortgage over the property at Property H in the State of New South Wales to the effect that the sums loaned to the Second Respondent are repaid to the first Respondent.

Within fifty-six (56) days the First Respondent is to pay to the Applicant by way of settlement of property the sum of $131,448.50.

The Applicant is declared to be the sole legal and beneficial owner of all her right title and interest in:

(a) Toyota Rav 4 motor vehicle registered number [omitted];

(b) Her caravan and annex;

(d) Any superannuation entitlements received by her and invested by her or on her behalf; and

(e) All furniture, furnishings and items of personal use and adornment in her possession.

The Respondent is declared to be the sole legal and beneficial owner of all his right title and interest in:

(a) Ford Falcon motor vehicle registered number [omitted];

(b) All cash at bank and moneys invested by him in his sole name including all his Telstra shares;

(d) All furniture, furnishings and items of personal use and adornment in his possession.

In the event of either party neglecting or refusing to sign all or any necessary instruments to give effect to these orders or any of them, either party is at liberty to apply under the provisions of section 106A of the Family Law Act 1975 to the Court to seek the appointment of a Registrar or Deputy Registrar of the Court to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the said deed or instrument.

The above Orders are intended to determine finally the financial relationship between the parties under section 81 of the Family Law Act 1975 in so far as it is practicable to do so.

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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