FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brimmer & Brimmer [2025] FedCFamC2F 149
File number(s): DGC 2551 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 13 February 2025 Catchwords: FAMILY LAW – PROPERTY – lengthy marriage – two children – small asset pool – loan from husband’s parents in dispute – husband’s parents joined as third parties – loan agreement signed by all parties early in marriage – third parties to be repaid funds owed – various contributions deemed to be equal over time – section 75(2) factors favour the wife including care of children and earning capacity – orders for 65 per cent of all assets to be divided in favour of the wife. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 75, 79, 102NA
Cases cited: Aleksovski & Aleksovski [1996] FamCA 111
Bevan & Bevan [2013] FamCAFC 116
Biltoft & Biltoft [1995] FamCA 45
Carlson & Fluvium [2012] FamCA 32
Chorn & Hopkins [2004] FamCA 633
Clauson & Clauson [1995] FamCA 10
Dickons & Dickons [2012] FamCAFC 154
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
In the Marriage of Omacini [2005] FamCA 195
Kennon & Kennon [1997] FamCA 905
Kowaliw & Kowaliw [1981] FamCA 70
Lee Steere & Lee Steere (1985) FLC 91-626
Sahrawi & Hadrami [2018] FamCAFC 170, (2018) FLC 93-857
Division: Division 2 Family Law Number of paragraphs: 95 Date of hearing: 2 & 3 December 2024 Place: Melbourne Counsel for the Applicant: Mr Kistler Solicitor for the Applicant: Miltons Lawyers Representative for the First Respondent: Appearing in person Counsel for the Second and Third Respondents: Mr Ryan Solicitor for the Second and Third Respondents: Robinson Gill
Table of Corrections 25 February 2025 In paragraph 42 and annexure A, references to the superannuation subtotal have been corrected from “$249,292” to “$249,293” and the overall total (assets – liabilities + superannuation) from “648,695” to “$648,696”, pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“r 10.13(1)(e)”) to reflect the Court’s intention.
In paragraph 82, the calculation has been corrected to reflect the Court’s intention to clarify the division of the property pool for the parties by breaking down the calculations to provide the husband with 35 per cent of the non-superannuation asset pool and the wife 65 per cent of the non-superannuation asset pool pursuant to r 10.13(1)(e).
ORDERS
DGC 2551 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRIMMER
Applicant
AND: MS BRIMMER
First Respondent
MR C BRIMMER
Second Respondent
MS D BRIMMER
Third Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
13 FEBRUARY 2025
Amended pursuant to r. 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 25 February 2025
THE COURT ORDERS THAT:
1.By no later…
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CaseChat Overview and Summary
The court meticulously examined the evidence and the arguments presented by both parties, focusing on the application of section 75(2) of the Family Law Act 1975 (Cth). The judge concluded that the factors weighed in favour of the wife, who had primarily cared for their children and had a lower earning capacity compared to the husband. Consequently, the court ruled that 65 per cent of the assets should be divided in favour of the wife, taking into account the loan from the husband's parents and other contributions made by both parties. This decision was based on a comprehensive assessment of the parties' financial situations and the equitable distribution of their assets.
The court ordered that the wife was to make several payments to the husband and his parents within a specified timeframe, with the balance of the assets to be divided upon the resolution of ongoing litigation concerning legal fees. The court also addressed the division of personal property, superannuation, and liabilities, ensuring that the final orders reflected an equitable outcome. The orders finalised all financial relationships between the parties, subject to compliance with the terms outlined.
Orders
Orders of the court
DGC 2551 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR BRIMMER
Applicant
AND:
MS BRIMMER
First Respondent
MR C BRIMMER
Second Respondent
MS D BRIMMER
Third Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
13 FEBRUARY 2025
Amended pursuant to r. 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 25 February 2025
THE COURT ORDERS THAT:
1. By no later than 1 June 2025 (“the date”) the Wife:
(a) Pay the sum of $83,000 (“the first payment”) to the Second and Third Respondents and contemporaneously, the Second and Third Respondents do all things necessary to remove the caveat number … secured over the property situate at E Street, Suburb F (“the Suburb F property”);
(b) Pay $200,000 into the Trust Account of Miltons Lawyers on behalf of the Applicant Husband, First Respondent and Ms G (“the trust monies”) pending the resolution of the Supreme Court costs proceedings between Ms G and the Wife (“the Supreme Court litigation”) (“the deposit”) and contemporaneously, the Husband and Wife do all things necessary to cause Ms G to remove caveat number … secured over the Suburb F property;
(c) Pay to the Husband $60,000 $88,840.05 (“the first second payment”) and contemporaneously, the Husband do all things necessary to cause H Bank to remove the caveat number … lodged by H Bank secured over the Suburb F property; and
(d) Pay to the Husband the amount of $171,805 (“the second payment”) and Discharge the mortgages over the property situate at E Street, Suburb F property.(“the Suburb F property”).
2. Contemporaneously with the first and second payments and the discharge of the mortgages the Husband transfer to the Wife all of his right title and interest in the Suburb F property and pay out his debt to H Bank.
3. Upon the conclusion of the Supreme Court litigation the remaining trust monies be paid to the Wife. divided:
(a) 65 per cent to the Wife; and
(b) 35 per cent to the Husband.
4. In the event the wife fails to make the deposit, the first and second payments, or to discharge the mortgages over the Suburb F property by the date, the Suburb F property be sold as follows: pursuant to order 5 herein.
Sale of Suburb F Property
5. The Suburb F property be sold pursuant to paragraphs 8, 9, 11, 12, 13 and 14 of the Orders made on 14 November 2023, subject to the requirement that the parties do all acts and things and sign all documents necessary to ensure that the Suburb F property be listed on the market for sale by no later than 30 June 2025, (“the sale”) and upon the sale of the Suburb F property, the proceeds of sale be divided in the following manner and priority:
(a) To pay costs, commissions and expenses of sale;
(b) To discharge the mortgages secured against the title of the Suburb F property;
(c) To pay the sum of 21.73 per cent of the net proceeds of sale of the Suburb F property (after the payments in Order 5 (a), (f)(i) and (f)(ii) herein) to the Second and Third Respondents and contemporaneously, the Second and Third Respondents do all things necessary remove of the caveat number … secured over the Suburb F property;
(d) The amount owed by the Wife to her former solicitor, Ms G (in the sum of approximately $200,000), be placed in the Trust Account of Miltons Lawyers on behalf of the Wife, Husband and Ms G pending the resolution of the Supreme Court litigation and contemporaneously, Wife and Husband do all things necessary to cause Ms G to remove caveat number … secured over the Suburb F property;
(e) To the Husband, the amount owed by him to H Bank (in the sum of approximately $60,000) (“the H Bank payment”) of the remaining balance and contemporaneously, the Husband do all things necessary to cause H Bank to remove the caveat number … lodged by H Bank secured over the Suburb F property;
(f) The remaining balance be placed in the Trust Account of Miltons Lawyers on behalf of the Wife and Husband, pending the outcome of the Supreme Court litigation, following the conclusion of which the balance be divided between the parties to effect the following distribution of the net proceeds:
(i) Such amount as required to provide to the Husband 35 per cent of the net non-superannuation pool as set out in annexure “A” herein on the basis that the Husband is responsible for the entirety of the H Bank loan; and
(ii) Such amount as required to provide to the Husband 35 Wife 65 per cent of the nett non-superannuation pool as set out in annexure “A” herein 65 per cent to the Wife, on the basis that the Wife is responsible for the entirety of the Supreme Court litigation claim by Ms G.
6. Pending the payment and discharge of the mortgages or the sale, the Wife be restrained from further encumbering the Suburb F property save to give effect to these orders.
7. The Wife continue to make repayments towards the mortgages of the Suburb F property as and when they fall due until such time the Suburb F property is transferred or sold and the mortgages discharged, and the Wife shall be solely responsibility for any interest, fees or other penalty from her share of the sale proceeds in the event she fails to make such repayments.
8. The parties shall be at liberty to provide any credit institution a copy of documents from these proceedings in order to obtain finance.
9. In the event of the sale the Wife choose a conveyancing firm and notify the Husband no later than 7 June 2025, failing which the Husband has exclusive rights to appoint such a firm without consultation with the Wife.
10. There be liberty to apply with respect to the terms of the sale.
Division of Assets and Liabilities
11. The Husband shall retain to the exclusion of the Wife, his right, title and interest in the following:
(a) Any bank accounts in his sole name;
(b) His motor vehicle;
(c) Any liabilities in his sole name; and
(d) Any chattels and personal effects in his possession and held at the Suburb F property as at the date of these Orders.
12. The Wife shall retain to the exclusion of the Husband, her right, title and interest in the following:
(a) Any bank accounts in her sole name;
(b) Her motor vehicle;
(c) Any liabilities in her sole name; and
(d) Any chattels and personal effects in her possession as at the date of these Orders.
Superannuation Split
13. These orders are made to s 90XZD of the Family Law Act 1975 (Cth) ('the Act').
14. The parties as trustees ("the trustee") of the Brimmer Super Fund ("the fund") have been afforded procedural fairness and are agreeable to being bound by the terms of these orders.
15. A base amount to be determined in accordance with the Family Law (Superannuation) Regulations 2001 (Regulations) (Cth) to give effect to a 65/35 split in favour of the Wife of the total superannuation pool is allocated in accordance with s 90XT(4) of the Act, to the Wife, Ms Brimmer, out of the interest of the Husband, Mr Brimmer, in the fund ('the base amount').
16. Pursuant to section 90XJ of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the Husband's interest in the fund, the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using the base amount and that there should be a corresponding reduction in the entitlements of the Husband but for this agreement.
17. The trustee must forthwith:
(a) sign all documents and do all acts and things necessary to facilitate the roll-out of the Wife's member entitlement contemporaneously with the base amount split;
(b) the Wife’s member entitlement in the fund (to be finally determined upon completion of tax return for the financial year ending 30 June 2023) must be rolled-out to a superannuation fund nominated by the Wife; and
(c) until the Wife’s member entitlements pursuant to sub-paragraph (b) hereof and the base amount spilt created by paragraph 15 are rolled out from the fund (the total rollout from the fund to the Wife's nominated fund being that sum arrived at by adding the amount of the Wife's member entitlement at the date of the rollout to the base amount), the parties are restrained from dealing with the assets of the fund, or attempting to do so, without the other's party's express written consent.
(d) The operative time for the superannuation provisions of these orders is four business days after the date of service of sealed Orders upon the Trustee.
18. From the roll-over of the Wife's entitlements in the fund to a fund of her election in accordance with this agreement:
(a) the Husband must indemnify and forever keep indemnified the Wife against any and all past present and future liabilities, debts and taxation associated with the fund;
(b) the Wife must forthwith do all acts and thing as may be necessary to resign as a trustee; and
(c) save for any right against or with respect to the fund arising under these orders, the Wife relinquish all right, title or interest in the fund.
19. The Husband must retain control of the trustee and the fund upon compliance with the provisions of these orders.
Other
20. Unless otherwise specified in these orders and save for the purpose of enforcing any movies due under these or any subsequent orders:
(a) each party is solely entitled to the exclusion of the other to all property (including choses in action; and any superannuation) in the possession or sole name of such party;
(b) insurance policies must remain the sole property of the owner named therein;
(c) each party is solely liable for and must indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
21. In the event that either party fails to comply with any Order hereof, the Judicial Registrar of the Federal Circuit and Family Court of Australia (Melbourne registry) is empowered and authorised to exercise all necessary documents pursuant to section 106A of the Family Law Act 1975 (Cth), and by way of consequential arrangement to this order. An affidavit by the party and/or their solicitor setting out the failure to comply with these orders will be sufficient evidence of non-compliance.
22. Pursuant to section 81 of the Family Law Act 1975 (Cth) these orders shall finalise all financial relationships between the parties.
23. All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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