FAMILY COURT OF AUSTRALIA
| CHILDS & CHILDS | [2009] FamCA 434 |
| FAMILY LAW – PROPERTY SETTLEMENT – CONTRIBUTIONS – Husband’s greater initial contribution discussed in context of impact of parties’ many, substantial and varied contributions in subsequent years – Pierce v Pierce (1999) FLC 92‑844; Kardos Sarbutt [2006] NSWCA 11 cited – No special contributions on behalf of the husband found – Mallett v Mallett (1984) 156 CLR 605 cited – Overall husband found to have made greater contributions both to date of separation by virtue of property gifted to husband and post separation by virtue of wife’s income and accommodation FAMILY LAW – PROPERTY – SECTION 75(2) – Adjustment in husband’s favour in light of wife’s superannuation and disparity in earning capabilities made | |
| Family Law Act 1975 (Cth) Part VIII Coghlan v Coghlan (2005) FLC 93-220 |
| APPLICANT: | Ms Childs |
| RESPONDENT: | Mr Childs |
| FILE NUMBER: | PAF | 1555 | of | 2006 |
| DATE DELIVERED: | 22 May 2009 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | COLEMAN J |
| HEARING DATE: | 23, 24 & 25 February 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P.G. Maiden S.C. |
| SOLICITOR FOR THE APPLICANT: | Mark Brown & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr S.M. Stewart |
| SOLICITOR FOR THE RESPONDENT: | Matthews Folbigg |
Orders
That within two months of the date of these orders the wife transfer to the husband the whole of her right, title and interest in the property known as and situate at D in the State of New South Wales being the whole of the land contained in Folio Identifier … (“[D property]”) and vacate the said property.
That, as and from the date of the transfer referred to in Order 1 hereof, the husband indemnify the wife and forever keep her indemnified with respect to all liabilities and outgoings with respect to D property.
That, within two months of the date of these orders, the wife pay to the husband the sum of $56 851 and cause the mortgage to Westpac Bank with respect to the property known as and situate at T in the State of New South Wales being the whole of the land contained in Folio Identifier … (“[T property]”) in the sum of approximately $336 370 to be discharged and removed from the title to D property.
In the event of the wife failing to pay to the husband the sum of $56 851 in accordance with these orders the wife shall cause T property to be sold by private treaty at and for a price agreed in writing between the parties or failing agreement determined by the nominee of the Australian Institute of Valuers to be the market value of the property and to cause the proceeds of sale after payment out of agent’s commission, selling expenses and the Westpac…
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- Childs and Childs [2009] FamCA 434
- Case
- [2009] FamCA 434
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific terms of the property settlement, including the transfer of ownership of properties, the discharge of mortgages, the division of proceeds from potential property sales, and the allocation of sole ownership of various other assets and liabilities between the parties. The orders also addressed the division of chattels from the former matrimonial home and the apportionment of liability for a shortfall on a previously co-owned property, as well as a debt owed by the parties' son.
Coleman J made detailed orders to effect a final division of the parties' property and liabilities. These orders included the transfer of the D property to the husband, with the wife to pay a sum of money and discharge a mortgage on the T property, or failing which, the T property was to be sold with proceeds divided in specified shares. The L property was to be transferred to the wife, who would then indemnify the husband. Various other assets, including superannuation funds, vehicles, and shares, were allocated solely to either the husband or the wife. The contents of the former matrimonial home were to be divided by alternate selection, with specific percentages allocated to each party. The court also made provisions for the division of any monies recovered from the parties' son and addressed potential shortfalls from a previously co-owned property. Finally, the court appointed the Registrar to execute documents if a party failed to do so, and reserved costs.
Orders
Orders of the court
1.
That within two months of the date of these orders the wife transfer to the husband the whole of her right, title and interest in the property known as and situate at D in the State of New South Wales being the whole of the land contained in Folio Identifier … (“[D property]”) and vacate the said property.
2.
That, as and from the date of the transfer referred to in Order 1 hereof, the husband indemnify the wife and forever keep her indemnified with respect to all liabilities and outgoings with respect to D property.
3.
That, within two months of the date of these orders, the wife pay to the husband the sum of $56 851 and cause the mortgage to Westpac Bank with respect to the property known as and situate at T in the State of New South Wales being the whole of the land contained in Folio Identifier … (“[T property]”) in the sum of approximately $336 370 to be discharged and removed from the title to D property.
4.
In the event of the wife failing to pay to the husband the sum of $56 851 in accordance with these orders the wife shall cause T property to be sold by private treaty at and for a price agreed in writing between the parties or failing agreement determined by the nominee of the Australian Institute of Valuers to be the market value of the property and to cause the proceeds of sale after payment out of agent’s commission, selling expenses and the Westpac Mortgage to be divided between the parties as tenants in common in shares of 77.2 percent to the husband and 22.8 to the wife.
5.
That, within two months of the date of these orders, the husband transfer to the wife the whole of his right, title and interest in the property known as and situate at L in the State of New South Wales being the whole of the land contained in Folio Identifier … (“[L property]”) and vacate the said property.
6.
That, upon the transfer to her of the husband’s right, title and interest in L property the wife indemnify the husband and forever keep him indemnified with respect to all liabilities and outgoings with respect to the said property.
7.
That the wife be declared to have the sole right, title and interest in the following assets: -
(i) Her AMP, Navigator and Colonial super funds.
(ii) Her 2005 Toyota Celica Registration Number …
(iii) Her 1996 Toyota Celica Registration Number …
(iv) Her Telstra shares.
8.
That the husband forthwith do all things and sign all documents necessary to cause the chattels referred to in Order 7 hereof to be transferred to the wife.
9.
That the husband be declared to have the sole right, title and interest in the following assets: -
(i) His 1995 Holden Rodeo utility.
(ii) His E-Trade, Telstra and IMB shares, or the proceeds of sale.
(iii) His AXA life insurance policy or the proceeds of sale.
(iv) The parties’ jointly owned Perpetual shares, or the proceeds of sale.
(v) His Zurich superannuation policy or the proceeds of sale.
(vi) The sedan.
(vii) Tools in his possession.
10.
That the wife forthwith do all things and sign all documents necessary to cause the chattels referred to in Order 9 hereof to be transferred to the husband.
11.
That, in the absence of contrary agreement, the parties divide in specie the contents of their former matrimonial home at D by alternate selection provided that the husband shall be entitled to 56 percent of the total number of selections required for that purpose, and the wife to 44 percent thereof.
12.
That the parties mutually indemnify each other as to one half of such liability as the parties shall be held, by agreement or adjudication, to have with respect to the shortfall resulting from the sale of the property at F formerly co-owned by the husband and wife as tenants in common in equal shares with third parties.
13.
That the parties cause to be divided between them as tenants in common in shares of 56 percent to the husband and 44 percent to the wife any monies agreed or adjudged to be payable to the parties or either of them by the son of the parties who the husband asserts to be indebted to the parties in the sum of approximately $477 000.
14.
That the husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
15.
That in the event that either party refuses to execute any deed or instrument necessary to give effect to these orders, within seven (7) days of being requested so to do, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
16.
That except as otherwise provided for in this order the husband and wife each be and remain the sole legal and beneficial owners of all items of all property including furniture, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
17.
That costs be reserved.
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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