Cairns and Cairns - [2008] FMCAfam 254

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAIRNS & CAIRNS

[2008] FMCAfam 254

FAMILY LAW – Property adjustments – contributions – financial resources – legacy – whether entitlement under a will is relinquished.

Family Law Act 1975 (Cth) s.79

Saunders and Vortier (1841) 41 E.R. 482
Kowaliw & Kowaliw (1981) FLC91-092

Applicant:

MR CAIRNS

Respondent:

MS CAIRNS

File Number:

SYM 3460 2006

Judgment of:

Housego FM

Hearing dates:

2, 3, 10 August 2006; 8, 28 March 2007

Date of Last Submission:

16 August 2007

Delivered at:

Newcastle

Delivered on:

1 April 2008

REPRESENTATION

Counsel for the Applicant:

Ms Lloyd

Solicitors for the Applicant:

Newnhams Solicitors

Counsel for the Respondent:

Mr S Stewart

Solicitors for the Respondent:

Ashton Stedman Solicitors

ORDERS

Property Orders are made as follows:

[R] Property

(a)That the wife do all things and sign all documents necessary to cause discharge of the First Registered Mortgage securing the two (2) loans from that Bank, to the National Australia Bank Limited registration number 6xxx, within forty two (42) days of the date of these Orders and to pay the husband the sum of $148,725.00.
(b)That, interdependent upon Order 1(a) herein, the husband forthwith do all things and sign all documents necessary to cause Transfer of all of his right title and interest in the property known as Property [R] in the State of New South Wales, being the whole of the land contained in Folio Identifier 1xxx, to the wife.

Default provision

(c)That, in the event of the wife being in default of Order 1(a) herein, then:-
(i)the husband and wife forthwith do all things and sign all documents necessary to effect a sale of the property known as Property [R] in the State of New South Wales, being the whole of the land contained in the Folio Identifier 1xxx:-
A.for the best price reasonably obtainable but for a period of three (3) months from the date of listing at a price of not less than $900,000.00;
B.that the [R] property be sold in the first instance by private treaty;
C.that the [R] property be listed for sale by the parties for an open listing with [M] Real Estate;
D.that Grogan and Webb, Solicitors, Chatswood, be appointed as Solicitor to act on the sale of the [R] property;
E.That, in the event of the [R] property not being sold by private treaty within three (3) months from the date of listing, then the [R] property shall be sold by public auction, with such real estate agent or agents as the husband and wife shall agree upon, however, failing agreement, with such agent as is nominated by the then President of the NSW Division of the Australian Property Institute or his nominee. The listing or reserve price, shall be as the parties shall agree upon, however, failing agreement, then such price shall be as is determined by the then President of the NSW Division of the Australian Property Institute or his nominee.
F.that in the event that the [R] property is not sold…

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 Cairns and Cairns

Details

AGLC: Cairns and Cairns [2008] FMCAfam 254
Case: [2008] FMCAfam 254
Decision Date: 1 April 2008

CaseChat Overview and Summary

Cairns and Cairns involved a dispute between the husband and wife over the division of their property and financial assets. The case was heard in the Family Court of Australia. The central issues for the court were the division of the matrimonial property, including real estate, motor vehicles, and financial assets such as bank accounts and superannuation funds. Additionally, the court had to determine the respective ownership of personal belongings and furniture from their two properties.

The court carefully considered the contributions of each party to the acquisition and preservation of the assets, as well as the future needs and circumstances of both parties. The court ruled that the wife would be the owner of the family home, with the husband required to discharge the mortgage and transfer his interest in the property to her. The husband was also ordered to transfer his interest in a motor vehicle to the wife. The court further detailed the division of superannuation funds, with a specific base amount allocated to the wife from the husband's superannuation fund, along with provisions for ongoing payments. The court also addressed the ownership of personal items, declaring specific furniture and contents as the property of either the husband or the wife.

The court provided comprehensive orders to ensure the effective division of property, including default provisions for enforcement in case of non-compliance. The outcome ensured a fair distribution of assets, considering both the contributions of the parties and their future needs. The court's decision was detailed and specific, providing clear directives for the execution of the orders and the enforcement mechanisms in case of default.

Orders

Orders of the court

Property Orders are made as follows:

[R] Property

(a) That the wife do all things and sign all documents necessary to cause discharge of the First Registered Mortgage securing the two (2) loans from that Bank, to the National Australia Bank Limited registration number 6xxx, within forty two (42) days of the date of these Orders and to pay the husband the sum of $148,725.00.

(b) That, interdependent upon Order 1(a) herein, the husband forthwith do all things and sign all documents necessary to cause Transfer of all of his right title and interest in the property known as Property [R] in the State of New South Wales, being the whole of the land contained in Folio Identifier 1xxx, to the wife.

Default provision

(i) the husband and wife forthwith do all things and sign all documents necessary to effect a sale of the property known as Property [R] in the State of New South Wales, being the whole of the land contained in the Folio Identifier 1xxx:-

A. for the best price reasonably obtainable but for a period of three (3) months from the date of listing at a price of not less than $900,000.00;

B. that the [R] property be sold in the first instance by private treaty;

C. that the [R] property be listed for sale by the parties for an open listing with [M] Real Estate;

D. that Grogan and Webb, Solicitors, Chatswood, be appointed as Solicitor to act on the sale of the [R] property;

E. That, in the event of the [R] property not being sold by private treaty within three (3) months from the date of listing, then the [R] property shall be sold by public auction, with such real estate agent or agents as the husband and wife shall agree upon, however, failing agreement, with such agent as is nominated by the then President of the NSW Division of the Australian Property Institute or his nominee. The listing or reserve price, shall be as the parties shall agree upon, however, failing agreement, then such price shall be as is determined by the then President of the NSW Division of the Australian Property Institute or his nominee.

F. that in the event that the [R] property is not sold on its first submission for sale by public auction, then the [R] property shall be resubmitted as often as is necessary as the parties may agree, and failing agreement, then upon demand by either party, such auctions thereafter to be carried out by such agent or agents as the parties agree from time to time, and failing agreement, then by the agent by whom the most previous auction of the [R] property was conducted, at a reserve price which in the absence of other agreement between the husband and wife, is 3% less than the reserve price for the preceding auction of the [R] property, until such time as a sale is effected, provided that in between any such auctions the [R] property shall be offered for sale by private treaty through such agents and at such prices as the husband and wife may, from time to time, agree.

(ii) that upon the sale of the [R] property being effected, the husband and wife shall do all things necessary and sign all necessary documents to effect completion of such sale and to direct payment of the purchase money and adjustments receivable on settlement of such sale, as follows:-

A. in payment of:-

(i) the mortgage or mortgages to the National Australia Bank;

(ii) such valuation fees (if any);

(iii) agents’ fees including advertising expenses and auction charges;

(iv) solicitors’ conveyancing costs and disbursements and other necessary expenses associated with the sale;

B. In payment of the balance then remaining as to 70% to the wife and as to 30% to the husband.

Ford Laser Motor Vehicle

(d) that, the husband forthwith transfer all or his right title and interest both in law and in equity in the Ford Laser Motor Vehicle registration Mxxx, to the wife.

Husband’s superannuation - The [Mr Cairns] Superannuation Fund

(e) That the base amount allocated to the wife out of the interest held by the husband in the [Mr Cairns] Superannuation Fund is $77,222.00.

(f) That whenever the Trustee of The [Mr Cairns] Superannuation Fund makes a splittable payment from the interest held by the husband in the [Mr Cairns] Superannuation Fund, the Trustee shall pay to the wife the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there is a corresponding reduction in the entitlement of the husband would have had, but for these Orders.

(g) That Order 1(f) has effect from the operative time.

(h) That the operative time for these Orders is four (4) business days after the date of these Orders.

(i) That Order 1(f) binds the trustees of the [Mr Cairns] Superannuation Fund.

(j) That the husband sign all documents and do all things necessary to cause the wife to receive the base amount, as adjusted in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001.

(k) That the wife sign all documents and do all things necessary to cause the whole of the wife’s interest in the [Mr Cairns] Superannuation Fund to be transferred to another Regulated Superannuation Fund.

Officer to sign in Default

(l) That in the event that either party fails or neglects to comply with all or any of their respective obligations created by these Orders, the Registrar or other Officer of this Court at its Sydney Registry be appointed pursuant to Section 106A of the Act to execute, in the name of the husband or the wife as the case may be, all deeds and instruments necessary to give effect to the Orders herein, or any of them, and do all acts and things necessary to give validity and operation to the said deeds and instruments.

The Court Declares That:

Furniture and Contents at [R]

(a) As between the husband and the wife, the wife forthwith be declared the absolute owner both in law and in equity of all items of furniture and contents in the [R] property except for:-

(i) the husband’s mother’s gift of a Kauri sideboard;

(ii) Aldro figurine;

(iii) blue and white vase;

and those items to be the property of the husband.

Furniture and Contents at [W]

(b) As between the husband and the wife, the husband forthwith be declared the absolute owner both in law and in equity of all items of the parties furniture and contents at Property [W] NSW.

Wife’s Bank Account

(c) That, as between the husband and the wife, the wife forthwith be declared the absolute owner both in law and in equity of all her interest in her Westpac Banking Corporation Bank Account, Account Number 2xxx.

Husband’s Bank Account

(d) That, as between the husband and the wife, the husband forthwith be declared the absolute owner both in law and in equity of all of his interest in his Australian and New Zealand Bank Account.

Wife’s Superannuation

The [Mr Cairns] Superannuation Fund

(e) That, as between the husband and the wife, the wife forthwith be declared the absolute owner both in law and in equity of all of her past, present and future superannuation entitlements in the [Mr Cairns] Superannuation Fund.

Other Property

(f) That, as between the husband and the wife, that each party be declared the absolute owner of all other items of property not otherwise mentioned in these Orders, which are in their respective care and control as at the date of these Orders.

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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