Choate & Choate and Ors - [2009] FamCA 525

FAMILY COURT OF AUSTRALIA

CHOATE & CHOATE AND ORS

[2009] FamCA 525

FAMILY LAW – PROPERTY SETTLEMENT – CONTRIBUTIONS – Husband and wife found to have contributed equally initially and during cohabitation – Finding considered just and equitable in circumstances in which wife was able to complete university studies – husband made significant improvements to property of the parties enabled by wife’s greater income during cohabitation – wife’s marketing and sale of property saving considerable commission sum – wife’s compensation for personal injuries – rent-free accommodation provided for period of time by wife’s parents – finances and labour provided by husband’s family

FAMILY LAW – PROPERTY SETTLEMENT – POST SEPARATION CONTRIBUTIONS – No adjustment made for contributions in post separation period – Although wife had significant income and use of former matrimonial home without servicing line-of-credit, husband gave unsatisfactory evidence with respect to finances and lived with his parents on financially advantageous terms during that period

FAMILY LAW – PROPERTY SETTLEMENT – SECTION 75(2) – Adjustment made in wife’s favour as unsatisfactory and inconsistent evidence of husband and husband’s father regarding expectation that husband will be “looked after” by his family for unpaid work done on family building project, and absence of source documentation of trusts of which husband is beneficiary disentitle husband to “undue caution” in this regard – Weir v Weir (1993) FLC 92‑338, Black v Kellner (l992) FLC 92‑287 and Oriolo v Oriolo (1985) FLC 91‑653 cited

Family Law Act 1975 (Cth), Part VIII

Jones v Dunkel (1959) 101 CLR 298
Weir v Weir (1993) FLC 92‑338
Black v Kellner (l992) FLC 92‑287
Oriolo v Oriolo (1985) FLC 91‑653
Kennon v Spry (2008) 251 ALR 257

APPLICANT:

Mr Choate

RESPONDENT:

Ms Choate

2^ND& 3^RD RESPONDENTS:

Mr and Mrs Choate (Snr)

FILE NUMBER:

PAF

1448

2006

DATE DELIVERED:

12 June 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

COLEMAN J

HEARING DATE:

10, 11 & 12 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Anne Rees

SOLICITOR FOR THE APPLICANT:

Nikola Velcic & Associates

COUNSEL FOR THE RESPONDENT:

Mr Maurice and Mr Dura

SOLICITOR FOR THE RESPONDENT:

Galloways

COUNSEL FOR THE 2^ND & 3^RD RESPONDENTS:

Mr Willmott S.C.

SOLICITOR FOR THE 2^ND & 3^RD RESPONDENTS:

Don Velcic & Co

Orders

That within 90 days of the date of these orders the wife pay to the husband by way of settlement of property the sum of $327 607.
That upon payment by the wife to the husband of the said sum $327 607 the husband shall do all acts and things and execute all deeds, documents, instruments and writings necessary to cause to be transferred to the wife the whole of his right, title and interest in the property known as and situate at H in the State of New South Wales (“H property”).
That upon compliance with Orders 1 and 2 hereof the wife shall indemnify the husband and forever keep him indemnified with respect to all liabilities…

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 Choate & Choate and Ors

Details

AGLC: Choate & Choate and Ors [2009] FamCA 525
Case: [2009] FamCA 525
Decision Date: 12 June 2009

CaseChat Overview and Summary

This matter concerned a property settlement dispute between a husband and wife, heard by Coleman J. The primary dispute revolved around the division of assets, particularly the former matrimonial home, and the extent to which various contributions, both financial and non-financial, made by each party during and after the marriage should be taken into account.

The court was required to determine the appropriate division of the parties' property, considering their initial and ongoing contributions during cohabitation, as well as any post-separation contributions. Furthermore, the court needed to assess whether any adjustment was warranted under section 75(2) of the relevant legislation, taking into account factors such as the husband's financial circumstances and the evidence presented regarding his family's support.

Coleman J found that the parties had contributed equally during their cohabitation, noting the wife's role in enabling her university studies and the husband's significant improvements to the property, facilitated by the wife's higher income. The court also acknowledged the wife's efforts in marketing and selling a property, saving commission, and her provision of rent-free accommodation. No adjustment was made for post-separation contributions, as the husband's financial evidence was unsatisfactory, and he had benefited from living with his parents. An adjustment was made in the wife's favour under section 75(2) due to the husband's and his father's inconsistent evidence regarding expectations of family support for unpaid work, and the lack of documentation for trusts of which the husband was a beneficiary, which disentitled him to "undue caution" in this regard.

The court ordered that the wife pay the husband $327,607 within 90 days, upon which the husband was to transfer his interest in the H property to the wife, who would then indemnify him against all liabilities associated with it. In the event of non-payment, the H property was to be sold, with proceeds divided 68.4% to the wife and 31.6% to the husband after expenses and the line of credit were paid. The parties were to hold title to the H property as tenants in common in these shares from the date of the orders. Each party was to retain their other property absolutely, and all outstanding applications and costs applications were dismissed, with costs reserved.

Orders

Orders of the court

That within 90 days of the date of these orders the wife pay to the husband by way of settlement of property the sum of $327 607.

That upon payment by the wife to the husband of the said sum $327 607 the husband shall do all acts and things and execute all deeds, documents, instruments and writings necessary to cause to be transferred to the wife the whole of his right, title and interest in the property known as and situate at H in the State of New South Wales (“H property”).

That upon compliance with Orders 1 and 2 hereof the wife shall indemnify the husband and forever keep him indemnified with respect to all liabilities and outgoings whether secured or unsecured with respect to the H property.

That, in the event of the wife failing to pay to the husband the said sum of $327 607 in accordance with these orders, the parties shall do all acts and things and execute all deeds, documents, instruments and writings necessary to cause H property to be sold at and for a price agreed in writing between the parties and, failing agreement in that regard, the price determined by the nominee of the Australian Institute of Valuers to be the market value of the property and do cause the proceeds of sale after payment of agent’s commission, selling expenses and the line of credit from the Adelaide Bank secured upon the property to be divided between the parties as tenants in common in shares of 68.4 percent to the wife and 31.6 percent to the husband.

That, in the event of H property being sold pursuant to these orders, the wife be entitled to remain in occupation of the premises pending completion of such sale provided that, as and from 90 days from the date of these orders, until completion of the sale of H property the wife meet the interest obligations of the parties pursuant to the Adelaide Bank line of credit and together with council rates, water rates, insurances and other statutory outgoings on the property and maintain the property in good order and condition, reasonable wear and tear excepted.

That as and from the date of these orders, the parties do hold title to H property as tenants in common in shares of 68.4 percent to the wife and 31.6 percent to the husband.

That, save to the extent provided for by these orders, each party retain as his or her property absolutely and beneficially all property real or personal possessed by either of them.

That, save to the extent provided by these orders, and subject to the determination of any costs applications, all outstanding applications and costs applications be dismissed.

That the costs of all parties of and incidental to these proceedings be reserved.

10.

That any party to the proceedings seeking an order for costs of and incidental to the proceedings file and serve written submissions in support of such claim within 28 days and thereafter within a further period of 28 days any party against whom a costs order is sought file and serve submissions in opposition to any such order.

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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