Bauer and Bauer

Case [2013] FCCA 1125


FEDERAL CIRCUIT COURT OF AUSTRALIA

BAUER & BAUER [2013] FCCA 1125
Catchwords:
FAMILY LAW – Property – Advance of monies by husband’s parents a loan or gift – adjustment for small pool.

Legislation:
Family Law Act1975, ss.75(2), 79
Stamp Duties Act 1920 (NSW) repealed, s.83(1)
State Revenue Legislation Amendment Act 2008 (NSW), s.4

Federal Circuit Court Rules 2001, Reg 15.06A

Cases cited:
Bevan & Bevan [2013] FamCAFC 116
United Kingdom Realisation Co Ltd v IRC [1899] 1 QB 361
Handevel Pty Ltd v Controller of Stamps (Vic) (1985) 157 CLR 177
Pelly & Nolan [2011] FMCA 530
Maddock & Maddock & Anor (No.2) [2011] FMCAfam 1340
In the marriage of Petersons(1981) 7 Fam LR 402
Prince and Prince (1984) FLC 91-501
Biltoft and Biltoft (1995) FLC 92-614
Stanford v Stanford (2012) 293 ALR 70
Hickey and Hickey (2003) FLC 93-143
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
Pierce and Pierce (1999) FLC 92-844
Kowaliw (1981) FLC 91-092
Robb and Robb (1985) FLC92-555
H & T [2002] FMCA 209
Esposito & Coster [2012] FamCAFC 118
Gosper and Gosper (1987) FLC 91-818
Kessey and Kessey (1994) FLC 92-495

Pellegrino and Pellegrino (1997) FLC 92-789

Applicant: MR BAUER
Respondent: MS BAUER
File Number: NCC 2191 of 2010
Judgment of: Judge Myers
Hearing date: 28 March 2013
Date of Last Submission: 28 March 2013
Delivered at: Newcastle
Delivered on: 21 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Graham
Solicitors for the Applicant: Peter Hamilton & Associates
Solicitors for the Respondent: Self Represented

ORDERS

  1. That all previous orders be discharged.

  2. That within 14 days from the date of these orders the husband pay to the wife the sum of $16,398.84.

  3. That within 35 days of the husband paying to the wife the sum provided for in order 2 above the wife vacate the property at Property V.

  4. That simultaneous with the wife vacating the property at Property V the husband pay to the wife the further sum of the $16,398.84.

  5. That within 28 days the husband cause to be discharged the Car loan to the (omitted) Bank secured against and or drawn down for the purposes of purchasing the Ford (omitted).

  6. That within 28 days the husband transfer to the wife all of the husbands right title and interest in the Ford (omitted) motor vehicle registration number (omitted).

  7. That the wife be declared to be the owner of and retain all of the furniture and furnishing located Property V as at the date of these orders.

  8. That otherwise as provided for in these orders each party be declared to be the sole beneficial owner of all items of property including chattels, goods, furniture, furnishings and other property which at the date of the orders are in that parties possession, monies and other investments which stand in that parties name, any motor vehicles…

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BAUER & BAUER [2013] FCCA 1125
Case
[2013] FCCA 1125
Decision Date

CaseChat Overview and Summary

In *Bauer and Bauer*, Judge Myers considered the division of property between a husband and wife. The dispute concerned the equitable distribution of various assets, including a property, a motor vehicle, and furniture, as well as the discharge of a car loan.

The court was required to determine how the parties' assets and liabilities should be divided. Specifically, the court had to decide the quantum of financial settlement to be paid by the husband to the wife, the conditions under which the wife would vacate the matrimonial home, and the allocation of a specific motor vehicle and associated loan. The court also needed to address the ownership of furniture and furnishings at the property and the beneficial ownership of all other assets in each party's possession or name.

Judge Myers ordered that the husband pay the wife a total of $33,197.68, with a portion payable within 14 days and the remainder payable upon the wife vacating the property. The wife was to vacate the property within 35 days of the initial payment. The husband was also ordered to discharge a car loan and transfer ownership of the associated vehicle to the wife. The wife was declared the owner of all furniture and furnishings at the property, and otherwise, each party was to retain sole beneficial ownership of all property in their possession or name. To ensure compliance, the court appointed a Registrar to execute any necessary documents if a party refused or neglected to do so.

Orders

Orders of the court

1.

That all previous orders be discharged.

2.

That within 14 days from the date of these orders the husband pay to the wife the sum of $16,398.84.

3.

That within 35 days of the husband paying to the wife the sum provided for in order 2 above the wife vacate the property at Property V.

4.

That simultaneous with the wife vacating the property at Property V the husband pay to the wife the further sum of the $16,398.84.

5.

That within 28 days the husband cause to be discharged the Car loan to the (omitted) Bank secured against and or drawn down for the purposes of purchasing the Ford (omitted).

6.

That within 28 days the husband transfer to the wife all of the husbands right title and interest in the Ford (omitted) motor vehicle registration number (omitted).

7.

That the wife be declared to be the owner of and retain all of the furniture and furnishing located Property V as at the date of these orders.

8.

That otherwise as provided for in these orders each party be declared to be the sole beneficial owner of all items of property including chattels, goods, furniture, furnishings and other property which at the date of the orders are in that parties possession, monies and other investments which stand in that parties name, any motor vehicles in that parties name and their respective superannuation entitlements.

9.

That in the event either party refuses to or neglects to execute any document or instrument including real property transfer, within 7 days of a written request to do so, necessary to give effect to these orders a Registrar of this Court is appointed pursuant to the provisions of section 106A of the Family Law Act 1975 to execute such documents on behalf of the party who has refused or neglected to execute such document or instrument and do any other acts or things necessary so as to allow for the operation 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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