FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cabello & Cabello (No 2) [2024] FedCFamC2F 1727
File number(s): SYC 5838 of 2020 Judgment of: JUDGE STEWART Date of judgment: 6 December 2024 Catchwords: FAMILY LAW – PROPERTY – Contributions – Disparity in financial contributions – Assessment of section 75(2) factors – Largely agreed asset pool – Resulting trust – Presumption of advancement – Parental loan to wife Legislation: Evidence Act 1995 (Cth)s 140
Family Law Act 1975 (Cth) ss 75(2), 75(2)(o), 117
Cases cited: Anderson v McPherson (No 2) (2012) 8 ASTLR 321
Bosanac v Commissioner of Taxation [2022] HCA 34
Calverley v Green (1984) 155 CLR 242
Davies v The National Trustees Executors and Agency Co of Australasia Ltd [1912] VLR 397
Dickons & Dickons [2012] FamCAFC 154
Dullow v Dullow (1985) 3 NSWLR 531
Dyer v Dyer (1788) 2 Cox 92; 2 Cox Eq Cas 92; 30 ER 42
Grier & Malphas [2016] FamCAFC 84
In the Marriage of Aleksovski (1996) FLC 92-705
In the Marriage of Kowaliw (1981) FLC 91-092
Jabour & Jabour [2019] FamCAFC 78
Kouper & Kouper (No 3) [2009] FamCA 1080
Martin v Martin (1959) 110 CLR 297
Muschinski v Dodds (1985) 160 CLR 583
Nelson v Nelson (1995) 184 CLR 538
Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195
Pettitt v Pettitt [1970] AC 777
Stewart Dawson & Co (Vict) Pty Ltd v Federal Commissioner of Taxation (1933) 48 CLR 683
Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278
Division: Division 2 Family Law Number of paragraphs: 105 Date of hearing: 4-6 March 2024 Place: Melbourne Counsel for the Applicant: Mr Othen Solicitor for the Applicant: Long Saad Woodbridge Lawyers Counsel for the Respondent: Mr Dura SC Solicitor for the Respondent: Pigdon Norgate Family Lawyers ORDERS
SYC 5838 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CABELLO
Applicant
AND: MR CABELLO
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS THAT:
1.Order 1 of the minute of consent orders dated 31 August 2020 and made by His Honour Judge B Smith, be and is hereby discharged.
2.Orders 7 and 8 of the orders made 2 October 2020 by His Honour Judge B Smith be and are hereby discharged.
3.Within 90 days from the date of these orders (“the date”) the Husband pay to the Wife the sum of $227,543 (“the payment”), after which interest shall accrue and be payable at the rate set by the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth).
4.Contemporaneously with the payment:-
(a)the Husband do all such acts and things and sign all documents necessary to transfer to the Wife the whole of his right, title and interest in the property situate at and known as B Street, Suburb C in the State of New South Wales (and being the whole of the…
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CaseChat Overview and Summary
Judge Stewart began by examining the overall contributions made by each party to the relationship, noting that despite the wife's lower financial input, both parties had agreed on the valuation and division of most assets. The court recognised the wife's non-financial contributions, such as homemaking and childcare, which were substantial but difficult to quantify in monetary terms. The judge considered the presumption of advancement, which suggests that any financial benefit conferred by one spouse to the other is presumed to be a gift, unless proven otherwise. However, the judge found that the evidence did not support a presumption of advancement in this case. The court also deliberated on whether a resulting trust applied to the parental loan made to the wife, concluding that while the loan was intended to assist the wife, the intention was not to make a gift but rather to support the family’s financial stability.
Ultimately, the court determined that the wife should receive a financial payment from the husband and specific property transfers to balance the disparity in contributions. The court also addressed the mortgage obligations and other financial responsibilities, ensuring that both parties were clear on their respective liabilities. The orders made by the court aimed to finalise the financial relationship between the parties, avoiding further litigation. The court's decision provided a detailed distribution of assets and liabilities, ensuring that both parties understood their rights and obligations moving forward.
Orders
Orders of the court
SYC 5838 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS CABELLO
Applicant
AND:
MR CABELLO
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS THAT:
1. Order 1 of the minute of consent orders dated 31 August 2020 and made by His Honour Judge B Smith, be and is hereby discharged.
2. Orders 7 and 8 of the orders made 2 October 2020 by His Honour Judge B Smith be and are hereby discharged.
3. Within 90 days from the date of these orders (“the date”) the Husband pay to the Wife the sum of $227,543 (“the payment”), after which interest shall accrue and be payable at the rate set by the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth).
4. Contemporaneously with the payment:-
(a) the Husband do all such acts and things and sign all documents necessary to transfer to the Wife the whole of his right, title and interest in the property situate at and known as B Street, Suburb C in the State of New South Wales (and being the whole of the land in Folio Identifier … and registered at the date of these orders in the name of the parties joint tenants) (“the Suburb C Property”);
(b) the Wife refinance or discharge the mortgages to the Commonwealth Bank of Australian loan with the loan number ending #...30 (secured by mortgage against the Suburb C Property, being mortgage registered number ...) and with loan number ending #...67 (secured by mortgage against the Suburb C Property, being mortgage registered number …).
5. Pending the payment, the Husband pay interest and principle repayments associated with the Commonwealth Bank of Australia loan with the loan number ending #...67 (which loan being in the sum of approximately $242,908) and indemnify and keep indemnified the Wife with respect to same.
6. Save as is provided for in order 5 hereof, the Wife be responsible for and indemnify and keep indemnified the Husband against:-
(a) all payments due pursuant to the mortgage to the Commonwealth Bank of Australia loan with loan number ending #...30;
(b) after such time as the Husband makes the payment, all payments due pursuant to the mortgage to the Commonwealth Bank of Australia loan with loan number ending #...67; and
(c) all utilities, rates, taxes and like apportionable outgoings pertaining to or affecting the Suburb C Property.
7. In the event that the payment is not made within 120 days of the date of these orders, specific liberty be reserved to the parties to apply directly to the Chambers of Her Honour Judge Stewart by way of an Enforcement Application and supporting affidavit for enforcement of these orders.
8. Within 60 days of the date of these orders, the parties do all such acts and things and sign all such documents as may be necessary to close any accounts standing in credit with financial institutions held in the joint names of the parties (if any) and divide the remaining balance equally between them.
9. As between the Husband and the Wife, the Husband shall be solely entitled to receipt of the full amount of monies currently in the parties’ joint names, held in the D Conveyancing trust account.
10. As between the Husband and the Wife, and subject to any contrary statement in these orders, the Husband shall retain all interest in and entitlement to:-
(a) all really and personal property now in his respective possession or control, including but not limited to the real property situate and known as E Street, Suburb F, in the State of New South Wales, his Motor Vehicle 1, his Motor Vehicle 2, and household contents;
(b) all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name respectively; and
(c) all interests in life insurance policies and superannuation funds standing in his sole name respectively, including but not limited to his Superannuation Fund 1 superannuation interest.
11. As between the Husband and the Wife, and subject to any contrary statement in these orders, the Wife shall retain all interest in and entitlement to:-
(a) all real and personal property now in her respective possession or control, including but not limited to the Suburb C Property, her interest in G Pty Ltd, her 1/3 legal interest in the property situate and known as H Street, Suburb J, and household contents;
(b) all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name respectively; and
(c) all interests in life insurance policies and superannuation funds standing in her sole name respectively, including but not limited to her Superannuation Fund 2 superannuation interest.
12. The parties hereby release each other from all actions, proceedings, claims, demands, costs, liabilities and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing and also hereby indemnifies and shall keep indemnified the other party in respect of the same.
13. The parties each do all such acts and things and sign all documents, authorities and writings necessary to give effect to all or any of these orders.
14. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:-
(a) each party be solely entitled to the exclusion of the other party to all property (including choses-in-action) in the possession of such party as at the date of these orders;
(b) each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(c) all insurance policies to become the sole property of the owner named therein;
(d) each party to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e) any joint tenancy of the parties in any real or personal estate be and is hereby expressly severed.
15. Each of the parties be at liberty to provide a copy of these orders to potential lenders/financiers in order to comply with these orders.
16. The parties have liberty to apply to the Chambers of Her Honour Judge Stewart within 7 days of the date of these orders with respect to the form, but not the substance, of these orders.
17. All extant applications be otherwise dismissed, and the matter removed from the list of pending cases maintained by the Court.
AND THE COURT NOTES THAT:
A. It is intended that these orders shall as far as practicable finally determine the financial relationship between the parties and avoid further proceedings between them.
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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