Canvil and Merle and Ors (No. 2) - [2019] FamCA 685

FAMILY COURT OF AUSTRALIA

CANVIL & MERLE AND ORS (NO. 2)

[2019] FamCA 685

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – where there are two children of the marriage – where it is declared that the husband holds property on trust for his parents – where the parties maintained separate finances – where the Court is not satisfied that in all of the circumstances that it is just and equitable to make an order – where the wife is declared to be the owner of the balance of sale proceeds held in an offset account.

Family Law Act 1975 (Cth)

Baglio & Baglio [2013] FamCA 105

Bevan & Bevan (2013) FLC 93-545

Brown v Green (1999) FLC 92-873

Cerini & Cerini [1998] FamCA 143

Chorn v Hopkins (2004) FLC 93-204

DJM v JLM (1998) FLC 92-816

Harper & Harper [2013] FamCA 528

In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Hickey (2003) FLC 93-143
In the Marriage of Lee Steere (1985) FLC 91-626

In the Marriage of Kowaliw (1981) FLC 91-092

In the Marriage of Pastrikos (1980) FLC 90-897

In the Marriage of Townsend (1995) FLC 92-569

In the Marriage of Waters & Jurek (1995) FLC 92-635

Marker & Marker [1998] FamCA 42

Omacini v Omacini (2005) FLC 93-218

Polonius & York [2010] FamCAFC 228

Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Canvil

1st RESPONDENT:

Ms Merle

2nd RESPONDENT:

Mr E Canvil and Ms G Canvil by her Case Guardian Mr E Canvil (who appeared on 18 April 2016 pursuant to the Order made 29 February 2016)

INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

FILE NUMBER:

BRC

4803

2012

DATE DELIVERED:

1 February 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

29 February 2016;
1, 2 & 3 March 2016;
18 April 2016

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE 1ST RESPONDENT:

Mr Hackett

SOLICITOR FOR THE 1ST RESPONDENT:

Evans & Company Family Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Mr Blackah (on 18 April 2016 only)

SOLICITOR FOR THE 2ND RESPONDENT:

Calabrese Lawyers (on 18 April 2016 only)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Black

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

Orders

IT IS ORDERED THAT

All previous property settlement orders are discharged.

IT IS DECLARED THAT

As and from the date of its acquisition, Mr Canvil held the property situate at and known as Unit 1, X Street Suburb Y in the State of New South Wales, and more particularly known as Lot … on SP …, which is registered in his name, by way of a resulting trust beneficially for Mr E Canvil and Ms G Canvil.
The husband is the sole legal and beneficial owner of all items of personal property and effects presently standing in his name or possession and control, to the exclusion of the wife, with the same to include but not be limited to the following:
(a) all amounts in…

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.

Keep reading for free

Create a free CaseChat account to read Canvil and Merle and Ors (No. 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FamCA 685
Decision Date: 1 February 2019

CaseChat Overview and Summary

In *Canvil and Merle and Ors (No. 2)*, Hogan J of the Family Court of Australia was required to determine property settlement and related matters between Mr Canvil (the husband) and Ms Merle (the wife). The dispute also involved the disposition of a property held by Mr Canvil, which was declared to be held on a resulting trust for Mr E Canvil and Ms G Canvil.

The court was tasked with determining the beneficial ownership of various assets, including a property, personal property and effects, bank accounts, a medical practice, and superannuation entitlements, as between the husband and wife. Additionally, the court needed to make orders concerning the transfer of legal title to the property, the disposition of frozen embryos, and the potential for costs orders.

Hogan J applied principles of resulting trusts to declare that Mr Canvil held the property at Unit 1, X Street Suburb Y on a resulting trust for Mr E Canvil and Ms G Canvil from the date of its acquisition. The court then made orders dividing the remaining personal property and effects, bank accounts, and superannuation entitlements solely between the husband and wife, based on their respective names, possession, and control. The court also appointed Ms Merle as agent for Mr Canvil regarding decisions about the frozen embryos and issued an injunction restraining Mr Canvil from interfering with her instructions to the relevant service provider.

The court ordered the discharge of all previous property settlement orders and directed Mr Canvil to execute documents to transfer legal title of the specified property to Mr E Canvil and Ms G Canvil within twenty-eight days. Ms Merle was appointed as agent for Mr Canvil concerning the frozen embryos, and an injunction was granted to prevent Mr Canvil from obstructing her decisions. The court also provided a mechanism for the appointment of a Registrar to execute documents if a party defaulted on compliance with the orders, and outlined a process for any applications for costs. All other outstanding applications were dismissed.

Orders

Orders of the court

IT IS ORDERED THAT

All previous property settlement orders are discharged.

IT IS DECLARED THAT

As and from the date of its acquisition, Mr Canvil held the property situate at and known as Unit 1, X Street Suburb Y in the State of New South Wales, and more particularly known as Lot … on SP …, which is registered in his name, by way of a resulting trust beneficially for Mr E Canvil and Ms G Canvil.

The husband is the sole legal and beneficial owner of all items of personal property and effects presently standing in his name or possession and control, to the exclusion of the wife, with the same to include but not be limited to the following:

(a) all amounts in bank accounts in his name; and

(b) all furniture, furnishings and effects in his possession; and

(d) any personal effects and jewellery; and

(e) any shareholdings in his name; and

(f) any superannuation entitlements.

The wife is the sole legal and beneficial owner of all items of personal property and effects presently standing in her name or possession and control, to the exclusion of the husband, with the same to include but not be limited to the following:

(a) all funds in all bank accounts held in her name, including those held by her in her Z Bank Offset Account as a consequence of the Order made on 24 February 2014; and

(b) her medical practice and all associated entities; and

(d) all furniture, furnishings and effects in her possession; and

(e) all motor vehicles registered in her name; and

(f) any personal effects and jewellery; and

(g) any shareholdings in her name; and

(h) any superannuation entitlements.

AND IT IS ORDERED THAT

Within twenty-eight (28) days, the husband (Mr Canvil) shall do all acts and things and execute all deeds and instruments, including but not limited to executing and delivering a Transfer in registrable form to the Second Respondents, as may be necessary to transfer to the Second Respondents, Mr E Canvil and Ms G Canvil the legal title to the property situate at and known as Unit 1, X Street Suburb Y in the State of New South Wales, and more particularly known as Lot … on SP ….

The wife (Ms Merle) is hereby appointed as the agent for the husband (Mr Canvil) in relation to any request for the cessation or termination of the freeze-storage or thaw of the frozen embryos and, by this Order, any person, organisation, corporate entity or authority is hereby authorised to act on the sole direction of Ms Merle in relation to such request.

The husband (Mr Canvil) is hereby restrained and an injunction issue restraining him from providing further written instructions to BB Service to prevent that entity from acting on any written instructions provided by the wife (Ms Merle) by which she authorises the cessation or termination of the freeze-storage of the frozen embryos or otherwise consents to the thaw of the same.

AND IT IS FURTHER ORDERED THAT

In the event that any party refuses or neglects to do any act or sign any document required to be done or executed in compliance with the provisions of these Orders, then, pursuant to s106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the said Order and an affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of such non-compliance and the party in default will be responsible for payment of any legal costs incurred by the other party as a result of the failure or neglect.

All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.

10.

After the expiration of the appeal period, all subpoenaed documents shall be destroyed or returned to the persons or institutions from which they emanated and any exhibit shall be returned to the party by whom that exhibit was tendered.

AND IT IS FURTHER ORDERED THAT

11.

In the event that any party seeks an order that the other party pay his or her costs:

(a) if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and

(b) any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and

(c) the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

(d) the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

and any such application for costs shall be considered in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.