Chaplin and Chaplin - [2014] FCCA 72

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAPLIN & CHAPLIN

[2014] FCCA 72

Catchwords:
FAMILY LAW – Property – significant matrimonial asset pool of $4,200,000.00 – husband argues 55 per cent of the parties’ asset were gifted to them by the husband’s father and as such the husband should receive 70 per cent of the pool – wife argues her contributions to the marriage as the primary carer for the parties seven children and the parties’ improvements and renovations to the properties gifted to them equalises the parties’ contributions such that the asset pool should be divided equally between the parties – orders made for the parties’ assets to be divided on a 42.5/57.5 basis in the husband’s favour.

Legislation:

Family Law Act 1975, ss.75, 79

Pierce & Pierce (1999) FLC 92-844
In the marriage of Brown [2005] FamCA 389
Stanford v Stanford [2012] HCA 52

Applicant:

MR CHAPLIN

Respondent:

MS CHAPLIN

File Number:

MLC 9673 of 2012

Judgment of:

Judge Bender

Hearing date:

28 November 2013

Date of Last Submission:

28 November 2013

Delivered at:

Melbourne

Delivered on:

22 January 2014

REPRESENTATION

Counsel for the Applicant:

Mr Dixon of Senior Counsel

Solicitors for the Applicant:

J A Middlemis

Counsel for the Respondent:

Ms Jenkins

Solicitors for the Respondent:

Ken Smith & Associates

ORDERS

The Husband forthwith do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Wife all of his right, title and interest in the real property situate at and known as:
(a)Property A (Volume [omitted]);
(b)Property B (Volume [omitted]);
(c)Property C (Volume [omitted]);
(d)Property D (Volume [omitted]); and
(e)Property E (Volume [omitted])
(“the properties retained by the wife”).
The Wife indemnify the Husband against all mortgages and rates, taxes and outgoings of or with respect to the properties retained by the wife of whatsoever nature and kind, save as provided for in order 7(b) herein.
That the Wife forthwith do all necessary acts and things and sign all necessary documents to transfer to the Husband at the expense of the Husband all her right, title and interest in:
(a)“Property F” (Volume [omitted]);
(b)Property G (Volume [omitted]);

(c)“Property H Parcel”, “Property I Parcel” and “Property J Parcel” (Volume [omitted]);
(d)Property K (Volume [omitted]);
(e)Property L (Volume [omitted]);
(f)Property M (Volume [omitted]));
(g)Property N ([omitted]);
(h)Property O (Volume [omitted]);
(i)Property P, (Volume [omitted]);
(j)“Property Q” (Volume [omitted]);
(k)“Property R” (Volume [omitted]); and
(l)100 acres at Property S (Certificate of Title Folio [omitted]);

(“the properties retained by the husband”).

The Husband indemnify the Wife against all rates, taxes and outgoings of or with respect to the properties retained by the husband of whatsoever nature and kind.
The Husband pay to the Wife the sum of $464,253.40 (“the payment”) on or before 22 April 2014 (“the date”);
Contemporaneously with the payment:
(a)the Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of…

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 Chaplin and Chaplin

Details

AGLC: Chaplin and Chaplin [2014] FCCA 72
Case: [2014] FCCA 72
Decision Date: 22 January 2014

CaseChat Overview and Summary

This matter concerned orders made by Judge Bender in family law proceedings between a husband and wife. The dispute involved the division of significant property assets, including multiple real estate properties, farm plant and equipment, and an antique collection. The court was required to make orders for the transfer of various properties between the parties, the payment of a substantial sum of money, and the indemnification of each party against specific liabilities.

The court was tasked with determining how the parties' various real estate holdings and other assets should be divided. This included the allocation of numerous properties, the responsibility for associated mortgages and outgoings, and the mechanism for a significant financial settlement. The orders also addressed the disposition of farm plant and equipment, an antique collection, superannuation, and other personal property, as well as the severance of any joint tenancies.

The court's reasoning, as reflected in the orders, involved a comprehensive division of the matrimonial assets. The husband was ordered to transfer several properties to the wife, who was to indemnify him against associated liabilities. Conversely, the wife was to transfer a larger number of properties to the husband, who was to provide a similar indemnity. A key component of the settlement was a payment of $464,253.40 from the husband to the wife by a specified date. The orders also established a contingency plan for the sale of a particular property (Property T) if the payment was not made by the due date, with the proceeds to be applied first to sale costs, then to the outstanding payment with interest, and any balance to the husband. The husband was granted sole occupation of Property T pending payment or sale, with responsibility for its outgoings during that period. Each party was to retain their respective superannuation and other property not specifically dealt with, and to indemnify the other against liabilities related to their allocated assets. Joint tenancies were expressly severed.

Orders

Orders of the court

The Husband forthwith do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Wife all of his right, title and interest in the real property situate at and known as:

(a) Property A (Volume [omitted]);

(b) Property B (Volume [omitted]);

(d) Property D (Volume [omitted]); and

(e) Property E (Volume [omitted])

(“the properties retained by the wife”).

The Wife indemnify the Husband against all mortgages and rates, taxes and outgoings of or with respect to the properties retained by the wife of whatsoever nature and kind, save as provided for in order 7(b) herein.

That the Wife forthwith do all necessary acts and things and sign all necessary documents to transfer to the Husband at the expense of the Husband all her right, title and interest in:

(a) “Property F” (Volume [omitted]);

(b) Property G (Volume [omitted]);

(d) Property K (Volume [omitted]);

(e) Property L (Volume [omitted]);

(f) Property M (Volume [omitted]));

(g) Property N ([omitted]);

(h) Property O (Volume [omitted]);

(i) Property P, (Volume [omitted]);

(j) “Property Q” (Volume [omitted]);

(k) “Property R” (Volume [omitted]); and

(l) 100 acres at Property S (Certificate of Title Folio [omitted]);

(“the properties retained by the husband”).

The Husband indemnify the Wife against all rates, taxes and outgoings of or with respect to the properties retained by the husband of whatsoever nature and kind.

The Husband pay to the Wife the sum of $464,253.40 (“the payment”) on or before 22 April 2014 (“the date”);

Contemporaneously with the payment:

(a) the Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situate at and known as, Property T (Volume [omitted]) (“Property T”);

(b) the wife discharge or refinance into her sole name the mortgage over the property at Property E; and

(c) the Husband indemnify the Wife in respect of all rates, taxes and outgoings of or with respect to Property T of whatsoever nature and kind.

In the event that the whole of the payment has not been made by the date:

(a) the parties sign all documents and do all things necessary to place Property T on the market for sale (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

(i) firstly to pay all costs, commissions and expenses of the sale;

(ii) secondly so much of the payment as is then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the date to the Wife;

(iii) thirdly the balance to the Husband;

(b) the husband pay the mortgage registered against the property at Property E from the date to the payment.

Pending the payment or completion of the sale:

(a) the Husband have the sole right to occupy Property T and during such right of occupation the Husband pay all rates and taxes and like apportionable outgoings of Property T as they fall due;

(b) the parties hold their respective interests in the real property upon trust pursuant to these orders; and

The husband retain to the exclusion of the wife all of the farm plant and equipment detailed in the valuation prepared for the parties by Countrywide Valuers and that the wife sign all documents and do all things necessary to transfer such farm plant and equipment to the husband.

10.

The wife retain to the exclusion of the husband her antique collection and antique trading stock.

11.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;

(b) insurance policies remain the sole property of the owner named therein; and

(c) each party 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;

(d) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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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