Brodie and Brodie - [2008] FamCA 26

FAMILY COURT OF AUSTRALIA

BRODIE & BRODIE

[2008] FamCA 26

FAMILY LAW – PROPERTY – Division of pool after eleven years of marriage – s 79(4) and s 75(2) considerations – the main redistribution issue concerned the significance of the husband’s sizeable initial capital contribution that had been improved and appreciated in value partly due to parties’ unequal efforts and market forces – Held: Pool of $3,571,000 in assets and over $1M in superannuation shared 75 % to the husband on contribution reduced to 68.5% after adjustment.

APPLICANT:

Mrs Brodie

RESPONDENT:

Mr Brodie

FILE NUMBER:

(P)BRF

953

2006

DATE DELIVERED:

25^th January 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carmody J

HEARING DATE:

22, 23, 24, 25 and 26 October 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Cooper of Charles Cooper Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kirk of Senior Counsel

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

The parties are directed to consult and agree on the formal terms of order to give effect to my decision or if they cannot agree file proposed drafts by no later than 4.00 pm on 14^th February 2008.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Carmody delivered this day will for all publication and reporting purposes be referred to as Brodie.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: (P)BRF953 of 2006

Mrs Brodie

Applicant

And

Mr Brodie

Respondent

REASONS FOR JUDGMENT

Introduction

This is a property settlement dispute over net assets of around $4-5M. The parties competing past contribution and future needs based claims are about $1M apart.
The husband concedes no more than a 15 percent share on his figures or $600,000 - $750,000 to the wife. She seeks approximately $1,600,000-$2,000,000 or 40 % of her value of the pool as well as spouse maintenance.
The most important issue of principle of is how the court should compare and balance up the total contribution of the parties during an eleven year virtually childless marriage when one of the parties had comparatively significant wealth and a high income earning capacity to begin with and the other started and ended with owing more than she owns.

Step 1: The pool

The available property on the wife’s figures is worth $3,863,653 (actual) and $4,942,718 (notional) compared with the husband’s estimate of $3,828,256 (actual) and $4,181,040 (notional).

Agreed assets and liabilities

Assets

Owner

Value

W Property

Husband

$1,350,000

Honda

Joint

$18,000

Mercedes Benz

Wife

$40,000

Cruiser

Husband

$45,000

H Furniture

Co-owned

- pre-separation

$8,085

- post-separation

$8,852

$17,444

Jewellery

Wife

$10,400

Bank balance

Wife

$3,000

$1,500,781

Corporate/Trusts

Accounting Trust

$332,993

S Trust

($14)

E Pty Ltd

$205,744

Family Trust

$1,127,802

$2,408,537

Superannuation

Brodie Super Fund

Husband

$1,021,077

Superannuation

Wife

$46,154

$1,067,231

Loans

Husband

$428,881

Wife

($121,425)

Loan to L Business

$35,795

$343,251

Agreed Add backs

Wife’s legal costs

$89,806

Husband’s prepaid legal costs

$88,360

Wife’s pre-trial partial settlement

$50,000

$228,165

Total Assets

$4,041,818

Liabilities

Income tax payable on realised gains

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 Brodie and Brodie

Details

AGLC: Brodie and Brodie [2008] FamCA 26
Case: [2008] FamCA 26
Decision Date: 25 January 2008

CaseChat Overview and Summary

In the matter of *Brodie and Brodie*, Carmody J of the Family Court of Australia considered a dispute between the parties concerning their property settlement. The precise nature of the dispute is not detailed in the provided text, but it clearly involved the division of assets and liabilities between the Brodies.

The central legal issue before Carmody J was the determination of how the parties' property should be divided. This required the Court to assess the contributions of each party, their financial circumstances, and any other relevant factors to arrive at a just and equitable outcome.

Carmody J's reasoning and the legal principles applied are not elaborated upon in the provided excerpt. However, the outcome of the proceedings was that the parties were directed to consult and agree on the formal terms of the orders to give effect to the Court's decision. If agreement could not be reached, they were to file proposed drafts of the orders by a specified date.

Orders

Orders of the court

The parties are directed to consult and agree on the formal terms of order to give effect to my decision or if they cannot agree file proposed drafts by no later than 4.00 pm on 14th February 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Assets	Owner	Value
W Property	Husband	$1,350,000
Honda	Joint	$18,000
Mercedes Benz	Wife	$40,000
Cruiser	Husband	$45,000
H Furniture	Co-owned
- pre-separation	$8,085
- post-separation	$8,852
$17,444
Jewellery	Wife	$10,400
Bank balance	Wife	$3,000
$1,500,781
Corporate/Trusts
Accounting Trust	$332,993
S Trust	($14)
E Pty Ltd	$205,744
Family Trust	$1,127,802
$2,408,537
Superannuation
Brodie Super Fund	Husband	$1,021,077
Superannuation	Wife	$46,154
$1,067,231
Loans
Husband	$428,881
Wife	($121,425)
Loan to L Business	$35,795
$343,251
Agreed Add backs
Wife’s legal costs	$89,806
Husband’s prepaid legal costs	$88,360
Wife’s pre-trial partial settlement	$50,000
$228,165
Total Assets	$4,041,818
Liabilities
Income tax payable on realised gains