FAMILY COURT OF AUSTRALIA
| CHALLEN & CHALLEN | [2007] FamCA 1292 |
| FAMILY LAW - PROPERTY – Add backs – Contributions – Initial Contributions – Section 75(2) factors – Necessary expenses |
| Child Support Assessment Act 1989 (Cth) Family Law Act 1975 (Cth) |
| Bremner and Bremner (1995) FLC 92-560; (1994) 19 Fam LR 407 Browne v Green (1999) FLC 92-873 Coghlan and Coghlan (2005) FLC 93-220; (2005) 33 Fam LR 414 In the Marriage of Townsend (1995) FLC 92-569; (1994) 18 Fam LR 505. In the Marriage of Vick and Hartcher (1991) FLC92-262; (1991) 15 Fam LR 149 M v M [1998] FamCA 42 Pierce v Pierce (1999) FLC 92-844 |
| APPLICANT: | Ms CHALLEN |
| RESPONDENT: | Mr CHALLEN |
| FILE NUMBER: | MLF | 1126 | of | 2006 |
| DATE DELIVERED: | 5 November 2007 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | MURPHY J |
| HEARING DATE: | 15 - 17 October 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Atkinson of Counsel |
| SOLICITOR FOR THE APPLICANT: | Susan Snyder |
| COUNSEL FOR THE RESPONDENT: | Ms Smallwood of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Mason Sier Turnbull |
ORDERS
As and by way of settlement of property pursuant to s 79 of the FamilyLaw Act 1974 (as amended):
IT IS ORDERED BY CONSENT THAT
Within 28 days, the husband sign all documents and do all things to transfer the property at D Street (“the said property”) in the State of Victoria to the wife being the whole of the land more particularly described in Certificate of Title Volume … Folio … and that upon such transfer, the husband pay all monies due and owing in respect of the mortgage secured over the property and thereafter the wife indemnify the husband in respect of all outgoings relating to the said property.
The furniture in the property at D Street be retained by the wife save for the antique desk (originally belonging to the husband’s grandfather) which shall be collected by the husband within 28 days of the date of this Order.
The husband continue to make the…
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CaseChat Overview and Summary
The court was required to formalise the agreed property settlement between the parties. The orders addressed the transfer of a property at D Street from the husband to the wife, the division of furniture, and the management of an ING Savings Bond for the child's future education. Further orders stipulated a lump sum payment from the husband to the wife, the transfer of interests in S Pty Ltd and Challen Nominees Pty Ltd, and the allocation of responsibility for capital gains tax on a specific unit sale. The parties also agreed to abandon certain claims to vehicles, shares, and superannuation entitlements.
The court's reasoning was based on the consent of the parties to the proposed property settlement. The orders reflect a comprehensive agreement to divide the marital assets and liabilities, with specific provisions for indemnities to protect each party from future claims and liabilities arising from the transferred assets or businesses. The orders aimed to achieve a final resolution of the parties' financial relationship.
By consent, the court ordered the transfer of the D Street property to the wife, with the husband to discharge the mortgage and the wife to indemnify him for future outgoings. The wife retained most furniture, save for an antique desk to be collected by the husband. The ING Savings Bond proceeds were to be applied towards the child's education. The husband was to pay the wife $100,000 contemporaneously with the property transfer and mortgage release. The parties were to take steps to transfer interests in S Pty Ltd and Challen Nominees Pty Ltd to the husband, with the husband indemnifying the wife for liabilities. The husband was to be solely responsible for Capital Gains Tax on the R Unit sale. Each party was to retain property in their name and be responsible for their respective liabilities, save as otherwise provided. All extant applications were dismissed.
Orders
Orders of the court
As and by way of settlement of property pursuant to s 79 of the FamilyLaw Act 1974 (as amended):
IT IS ORDERED BY CONSENT THAT
1.
Within 28 days, the husband sign all documents and do all things to transfer the property at D Street (“the said property”) in the State of Victoria to the wife being the whole of the land more particularly described in Certificate of Title Volume … Folio … and that upon such transfer, the husband pay all monies due and owing in respect of the mortgage secured over the property and thereafter the wife indemnify the husband in respect of all outgoings relating to the said property.
2.
The furniture in the property at D Street be retained by the wife save for the antique desk (originally belonging to the husband’s grandfather) which shall be collected by the husband within 28 days of the date of this Order.
3.
The husband continue to make the monthly payments as and when they become due in respect of the ING Savings Bond Account and that upon maturity (estimated to be in approximately 4 years time) the proceeds of the said account be paid into an account in the name of the husband and wife to be applied towards educational expenses for the child of the marriage J for her education.
IT IS ORDERED THAT:
4.
Contemporaneously with the transfer provided for in paragraph 1 of these orders and the release of the said mortgage therein referred to, the husband pay to the wife a lump sum payment of $100,000.
5.
The husband and the wife shall each do all such things and sign all such documents as might be necessary so as to:
(a) Transfer to the husband, at the expense of the husband, all her right, title and interest in S Pty Ltd and resign any position she holds in the said company, and the husband shall indemnify and keep indemnified, the wife in respect of any liability, including taxation liability, of the said company;
(b) Abandon any right, title, claim or interest the wife has in the company Challen Nominees Pty Ltd and the business known as T Imports, such that the husband retain sole, right, title, claim or interest in the said company and the said business and the husband shall indemnify and keep indemnified, the wife in respect of all liabilities in relation to either the said company or the said business including, but not limited to, any taxation liabilities;
(c) Effect the husband being solely responsible for any Capital Gains Tax payable in respect of the sale of the property being the R Unit, and the husband shall indemnify and keep indemnified, the wife in respect of any such liability;
(d) Abandon any right, title, claim or interest that the husband has, or may have, in and to: the 2005 Audi A3 motor vehicle currently in possession of the wife; any shares in the name of the wife and any superannuation entitlements with the Hesta Superannuation Fund; any superannuation entitlement of the wife in the Challen Superannuation Fund; and
(e) Abandon any right, title, claim or interest that the wife may have in the member benefit entitlement of the husband in the Challen Superannuation Fund; the 2000 Holden Commodore Clubsport motor vehicle; the Honda VS75 motorbike and the antique desk referred to in paragraph 2 of these orders.
6.
Save as otherwise provided in these Orders, each of the parties shall be entitled to all rights, titles and interests in and to all property in their name or possession as at the date of these Orders.
7.
Save as otherwise provided in these Orders, each of the parties shall be responsible for, and shall indemnify the other in respect of, all liabilities in their respective names or for which they are respectively liable.
IT IS FURTHER ORDERED THAT
8.
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
9.
All material produced pursuant to subpoenae issued for the production of documents be returned to their respective providers after the time for appeal has lapsed.
Background
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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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