Bernet and Bernet - [2018] FamCA 479

FAMILY COURT OF AUSTRALIA

BERNET & BERNET

[2018] FamCA 479

FAMILY LAW – PROPERTY – Farming case – Large farm holdings – Long marriage – Where the main issue is contribution arising from assistance provided by husband’s father and its financial consequences – where contribution found to be significant – where the wife wanted a portion of a large farm excised and given to her – where it is found to be unnecessary and not just to do so – where issues of estate planning were contemplated and rejected by the court as an inappropriate exercise of power – where the farms are all held by entities and tax issues arise from alterations.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Income Tax Assessment Act 1997 (Cth)

Bulleen and Bulleen [2010] FamCA 187
Cabbell and Cabbell [2009] FamCAFC 205
Chorn and Hopkins (2004) FLC 93-204
Dickons v Dickons [2012] FamCAFC 154
Elford and Elford (2016) FLC 93-695
In the Marriage of CP and TL Lee Steere (1985) 10 Fam LR 431
Kennon v Spry (2008) FLC 93-388
Kowaliw and Kowaliw (1981) FLC 91-092
Mallet v Mallet (1984) 156 CLR 605
Money and Money (1994) FLC 92-485
Norman and Norman [2010] FamCAFC 66
Pierce and Pierce (1999) FLC 92-844
Riches v Hogben [1995] 2 QdR 292
Steinbrenner and Steinbrenner [2008] FamCAFC 193
Townsend and Townsend (1995) FLC 92-569

APPLICANT:

Ms Bernet

RESPONDENT:

Mr Bernet

FILE NUMBER:

MLC

6860

2015

DATE DELIVERED:

17 May 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:	Cronin J
HEARING DATE:	7, 8, 9, 10, 14 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Panna QC with Mr Meehan

SOLICITOR FOR THE APPLICANT:

McKean Park Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kirkham QC with Dr Ingleby

SOLICITOR FOR THE RESPONDENT:

Saxbys Lawyers

Orders

That subject to any issues of taxation arising from these orders, the husband pay to the wife $8 million and otherwise both parties do all things necessary to effect an alteration of their direct and indirect interests in the properties as follows:
(a)The husband retain, to the exclusion of the wife, the assets referred to in paragraph 144 of the reasons for judgment; and
(b)The wife retain, to the exclusion of the husband, the assets referred to in paragraph 143 of these reasons.
Each party bring to court as soon as practicable, minutes to reflect the said reasons and these orders.
Each party indemnify the other with respect to liabilities arising from the overdraft and other debts under their control as outlined by the said reasons.
All parties have liberty to apply.
Save as to issues of costs and the necessary matters arising from these orders, the respective applications and responses are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bernet & Bernet has been approved by the Chief Justice pursuant to s 121(9)(g) of…

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 Bernet and Bernet

Details

AGLC: Bernet and Bernet [2018] FamCA 479
Case: [2018] FamCA 479
Decision Date: 17 May 2018

CaseChat Overview and Summary

In the matter of *Bernet and Bernet*, Cronin J of the Family Court of Australia was required to determine the division of property between the husband and wife. The dispute concerned the distribution of various assets and liabilities held by the parties.

The central legal issues before the court were the appropriate allocation of the parties' direct and indirect interests in their properties, including specific assets and liabilities such as an overdraft. The court also had to consider the implications of taxation arising from its orders and the indemnification of each party for certain debts.

Cronin J ordered that the husband pay the wife $8 million. The court further directed that the parties take all necessary steps to alter their interests in the properties, with the husband retaining certain specified assets and the wife retaining others. Each party was also ordered to indemnify the other concerning liabilities arising from their respective overdrafts and debts under their control. The court reserved liberty to apply and, save for costs and matters arising from the orders, dismissed the parties' applications and responses.

Orders

Orders of the court

That subject to any issues of taxation arising from these orders, the husband pay to the wife $8 million and otherwise both parties do all things necessary to effect an alteration of their direct and indirect interests in the properties as follows:

(a) The husband retain, to the exclusion of the wife, the assets referred to in paragraph 144 of the reasons for judgment; and

(b) The wife retain, to the exclusion of the husband, the assets referred to in paragraph 143 of these reasons.

Each party bring to court as soon as practicable, minutes to reflect the said reasons and these orders.

Each party indemnify the other with respect to liabilities arising from the overdraft and other debts under their control as outlined by the said reasons.

All parties have liberty to apply.

Save as to issues of costs and the necessary matters arising from these orders, the respective applications and responses are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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