Bray and Bray - [2011] FMCAfam 906

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRAY & BRAY

[2011] FMCAfam 906

FAMILY LAW – Property – trauma insurance payment – effect on division of assets.

Family Law Act 1975, ss.75 and 79

Hickey & Hickey & Attorney for Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Biltoft (1995) FLC 92-614

Munroe & Monroe [2009] FamCAFC 173
Lippman & Lippman [2010] FamCAFC 127

Strahan & Strahan [2009] FamCAFC 166
Townsend (1995) FLC 92-569
Farmer & Bramley (2000) FLC 93-060
Aleksovski (1996) FLC 92-705
Williams (1985) FLC 91-628

Applicant:

MR BRAY

Respondent:

MS BRAY

File Number:

ADC 1852 of 2009

Judgment of:

Cole FM

Hearing dates:

3, 4 & 9 November and 23 December 2010, 28 January, 16 & 23 February, 7 & 15 March and 11 April 2011

Date of Last Submission:

11 April 2011

Delivered at:

Adelaide

Delivered on:

16 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr Jordan

Solicitors for the Applicant:

David Burrell & Co.

Counsel for the Respondent:

Mr Heinrich

Solicitors for the Respondent:

Adelaide Family Law

ORDERS

The husband pay to the wife the sum of $530,023 as follows:
(a)the sum of $230,023 within fourteen (14 days); and
(b)the sum of $300,000 within sixty (60) days.
Simultaneous with the payment in paragraph 1(b), the wife sign such documents (the cost of the preparation of such documents to be at the husband’s expense) and do such actions as are reasonably required:
(a)to resign from any office she may hold with the Bray Family Trust;
(b)to transfer any interest she may hold in the Trust assets to the husband including the interest in [G] and the Mercedes van;
(c)to transfer her right, title and interest in the property situated at Property S, [S], being the whole of the land comprised in Certificate of Title Register Book Volume [omitted]; and
(d)to enable the husband to obtain finance for the purposes of complying with these orders by the provision of the signed documents on such terms as agreed between the parties.
Save and except that the wife will pay her PAYG tax and income tax for the 2009, 2010 and 2011 financial years, the husband indemnify the wife and keep her indemnified in respect of any liabilities arising from her interest in the Bray Family Trust.
Any interest the husband may have in:
(a)the property situated at Property P, [P];
(b)the Honda Motor vehicle;
(c)the VW motor vehicle in the wife’s possession;
(d)the [business] equipment; and
(e)the chattels and personal items in her possession and control
vest in the wife absolutely.
The wife indemnify the husband and keep him indemnified in respect of any liability arising from the property in the wife’s possession including but not limited to:
(a)the mortgage secured against the [P] property;
(b)her credit card liabilities; and
(c)her personal tax liabilities.
Any interest the wife may have in:
(a)the property situated at Property M, [M];
(b)the boat in the husband’s possession;
(c)the husband’s superannuation entitlements; and
(d)the chattels and personal items in his possession and control
vest…

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 Bray and Bray

Details

AGLC: Bray and Bray [2011] FMCAfam 906
Case: [2011] FMCAfam 906
Decision Date: 16 September 2011

CaseChat Overview and Summary

The matter between Bray and Bray involved a dispute concerning the division of assets and liabilities following the termination of a marriage. The case was heard in the Family Court of Australia. The central issue before the court was the equitable distribution of the parties' property and debts, as well as the obligations each party had to indemnify the other against certain liabilities.

The court was required to determine how best to divide the assets and liabilities between the parties, considering their respective contributions to the accumulation of wealth, their future needs, and the overall fairness of the outcome. The court also had to decide on the specific steps each party should take to effectuate the division of assets and to ensure that each party was protected against certain liabilities arising from the division.

The court found that the husband was to pay the wife a sum of money in two installments, while the wife was to transfer various assets and interests to the husband, including her interest in a property and a vehicle. The husband was also to indemnify the wife against certain liabilities arising from her interest in a family trust. The wife was to indemnify the husband against liabilities related to certain properties and personal debts in his possession. Additionally, specific properties and personal items were allocated to each party, with each party indemnifying the other against liabilities associated with those items.

In conclusion, the court issued orders detailing the division of assets and liabilities, the steps to be taken by each party to effectuate the division, and the indemnification obligations between the parties. The proceedings were dismissed, and all extant orders were discharged.

Orders

Orders of the court

The husband pay to the wife the sum of $530,023 as follows:

(a) the sum of $230,023 within fourteen (14 days); and

(b) the sum of $300,000 within sixty (60) days.

Simultaneous with the payment in paragraph 1(b), the wife sign such documents (the cost of the preparation of such documents to be at the husband’s expense) and do such actions as are reasonably required:

(a) to resign from any office she may hold with the Bray Family Trust;

(b) to transfer any interest she may hold in the Trust assets to the husband including the interest in [G] and the Mercedes van;

(c) to transfer her right, title and interest in the property situated at Property S, [S], being the whole of the land comprised in Certificate of Title Register Book Volume [omitted]; and

(d) to enable the husband to obtain finance for the purposes of complying with these orders by the provision of the signed documents on such terms as agreed between the parties.

Save and except that the wife will pay her PAYG tax and income tax for the 2009, 2010 and 2011 financial years, the husband indemnify the wife and keep her indemnified in respect of any liabilities arising from her interest in the Bray Family Trust.

Any interest the husband may have in:

(a) the property situated at Property P, [P];

(b) the Honda Motor vehicle;

(d) the [business] equipment; and

(e) the chattels and personal items in her possession and control

vest in the wife absolutely.

The wife indemnify the husband and keep him indemnified in respect of any liability arising from the property in the wife’s possession including but not limited to:

(a) the mortgage secured against the [P] property;

(b) her credit card liabilities; and

Any interest the wife may have in:

(a) the property situated at Property M, [M];

(b) the boat in the husband’s possession;

(d) the chattels and personal items in his possession and control

vest in the husband absolutely.

The husband indemnify the wife and keep her indemnified in respect of any liability arising from the property in the husband’s possession including but not limited to:

(d) the mortgage secured against the [M] property;

(e) his credit card liabilities; and

(f) his personal tax liabilities.

There be liberty to the parties to apply as to consequential orders.

The proceedings be otherwise dismissed and all extant orders be discharged.

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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