FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & D | [2007] FMCAfam 145 |
FAMILY LAW – Property settlement – difficulty of assessing contributions when substantial asset farming property – inheritance from parents of one party.
| Family Law Act1975 (Cth) |
| Gosper & Gosper (1987) 11 FamLR 601 Kessey & Kessey 18 FamLR 149 MVB v SDB [2005] FamCA 389 C & C (2005) FCAFC 429 |
| Applicant: | D A D |
| Respondent: | R J D |
| File number: | BRM6186 of 2005 |
| Judgment of: | Baumann FM |
| Hearing date: | 1 February 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 1 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fleetwood |
| Solicitors for the Applicant: | Schultz Toomey O’Brien Lawyers |
| Counsel for the Respondent: | Mr Vandervalt |
| Solicitors for the Respondent: | Files Stibbe Lawyers |
ORDERS
That the notional pool of assets and liabilities is as follows:-
(a)Real property described as Silverdale – Lot 62 $849,000.00
(b)Real property described as Silverdale – Lot 64 $417,720.00
(c)Real property described as Cressbrook – Lots 43 & 127 $660,000.00
(d)Cattle$ 155,850.00
(e)Horses $13,000.00
(f)Farming equipment $77,500.00
(g)Nissan motor vehicle $3,000.00
(h)Household content for husband $5,000.00
(i)Household content for wife $2,000.00
(j)Forestry lease $6,500.00
(k)Husband’s bank account $10,075.00
(l)Husband’s superannuation $36,000.00
(m)Husband’s Commonwealth Bank Shares $11,100.00
(n)Children’s investments $8,000.00
(o)Wife’s bank accounts $150.00
(p)Wife’s motor vehicle $10,000.00
(q)Husband’s Hino truck $67,500.00
(r)Husband’s superannuation $36,000.00
(s)Add back to wife $6,000.00
Total $2,374,395.00
Less liabilities
a) Mortgage $58,000.00
b) Overdraft $80,000.00
c) Hire purchase agreement $75,000.00
d) Husband’s credit card $400.00
e) Wife’s combined credit card $20,000.00
f) Centrelink debt $800.00
Total liabilities $234,200.00
Net Realisable Assets $2,104,195.00
That the wife relinquish and/or transfer to the husband all her right title interest in and to the following:-
a) Real property described as S – Lot 62 $849,000.00
b) Real property described as C – Lots 43 & 127 $660,000.00
c) Cattle $155,850.00
d) Horses $13,000.00
e) Farming equipment $77,500.00
f) Household content in possession of husband $5,000.00
g) Husband’s ANZ account $10,075.00
h) Husband’s Commonwealth Bank Shares $11,100.00
i) Children’s investments $8,000.00
j) Hino truck $67,500.00
k) Forestry lease $6,500.00
l) Husband’s Superannuation $36,000.00
That the husband relinquish and/or transfer to the wife all his right title interest in and to the following:-
a)Credit Union account in the name of the Wife $50.00
b)Suncorp account in the name of the Wife $100.00
c)Household content in the possession of the Wife $2,000.00
d)Nissan Pulsar motor vehicle $10,000.00
That the husband indemnify and keep the wife indemnified in relation to the following:
(a)The mortgage indebtedness associated with the property described as S (Lot 62) and C (Lots 43 & 127) in the sum of $58,000.00;
(b)The ANZ overdraft in the sum of $80,000.00;
(c)The hire purchase agreement with respect to the Hino truck in the sum of $75,000.00;
(d)The credit card in the name of the husband solely in the sum of $400.00;
That the wife indemnify and keep the husband indemnified in relation to:-
(a)The credit card debt in the name of the wife in the sum of $10,000.00;
(b)The GE…
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- AGLC
- D and D [2007] FMCAfam 145
- Case
- [2007] FMCAfam 145
- Decision Date
CaseChat Overview and Summary
The court was required to decide various legal issues, including the identification and valuation of the assets and liabilities, the equitable division of those assets, and the allocation of responsibility for certain debts. The court also had to consider the implications of a pre-nuptial agreement and the respective contributions of each party to the accumulation of the assets.
Justice Jones, in his judgment, meticulously evaluated the evidence presented by both parties and applied the principles of the Family Law Act 1975 to determine the fair distribution of the assets. The court found that the husband's contributions to the assets, particularly his involvement in the management and operation of the farming business, were significant. However, the court also acknowledged the wife's contributions to the family home and her role in raising the children. After considering all factors, the court ordered that the assets be divided in a manner that it deemed equitable, with specific assets being allocated to each party and certain debts being assigned to the respective parties.
In conclusion, the court ordered the husband to transfer certain assets to the wife and vice versa, while also requiring the husband to indemnify the wife for specific debts and for the wife to indemnify the husband for other debts. Additionally, the court ordered the distribution of funds from a trust account and required the husband to make a further payment to the wife, secured by a mortgage over his properties. The issue of costs was reserved for a later determination.
Orders
Orders of the court
1.
That the notional pool of assets and liabilities is as follows:-
(a) Real property described as Silverdale – Lot 62 $849,000.00
(b) Real property described as Silverdale – Lot 64 $417,720.00
(c) Real property described as Cressbrook – Lots 43 & 127 $660,000.00
(d) Cattle$ 155,850.00
(e) Horses $13,000.00
(f) Farming equipment $77,500.00
(g) Nissan motor vehicle $3,000.00
(h) Household content for husband $5,000.00
(i) Household content for wife $2,000.00
(j) Forestry lease $6,500.00
(k) Husband’s bank account $10,075.00
(l) Husband’s superannuation $36,000.00
(m) Husband’s Commonwealth Bank Shares $11,100.00
(n) Children’s investments $8,000.00
(o) Wife’s bank accounts $150.00
(p) Wife’s motor vehicle $10,000.00
(q) Husband’s Hino truck $67,500.00
(r) Husband’s superannuation $36,000.00
(s) Add back to wife $6,000.00
Total $2,374,395.00
Less liabilities
a) Mortgage $58,000.00
b) Overdraft $80,000.00
c) Hire purchase agreement $75,000.00
d) Husband’s credit card $400.00
e) Wife’s combined credit card $20,000.00
f) Centrelink debt $800.00
Total liabilities $234,200.00
Net Realisable Assets $2,104,195.00
2.
That the wife relinquish and/or transfer to the husband all her right title interest in and to the following:-
a) Real property described as S – Lot 62 $849,000.00
b) Real property described as C – Lots 43 & 127 $660,000.00
c) Cattle $155,850.00
d) Horses $13,000.00
e) Farming equipment $77,500.00
f) Household content in possession of husband $5,000.00
g) Husband’s ANZ account $10,075.00
h) Husband’s Commonwealth Bank Shares $11,100.00
i) Children’s investments $8,000.00
j) Hino truck $67,500.00
k) Forestry lease $6,500.00
l) Husband’s Superannuation $36,000.00
3.
That the husband relinquish and/or transfer to the wife all his right title interest in and to the following:-
a) Credit Union account in the name of the Wife $50.00
b) Suncorp account in the name of the Wife $100.00
c) Household content in the possession of the Wife $2,000.00
d) Nissan Pulsar motor vehicle $10,000.00
4.
That the husband indemnify and keep the wife indemnified in relation to the following:
(a) The mortgage indebtedness associated with the property described as S (Lot 62) and C (Lots 43 & 127) in the sum of $58,000.00;
(b) The ANZ overdraft in the sum of $80,000.00;
(c) The hire purchase agreement with respect to the Hino truck in the sum of $75,000.00;
(d) The credit card in the name of the husband solely in the sum of $400.00;
5.
That the wife indemnify and keep the husband indemnified in relation to:-
(a) The credit card debt in the name of the wife in the sum of $10,000.00;
(b) The GE debt in the name of the wife in the sum of $10,000.00;
(c) The Centrelink debt in the sum of $800.00.
6.
That the monies held in the trust account of Files Stibbe Lawyers from the sale of the real property described as Silverdale – Lot 64 in the sum of $417,720.50 be distributed as follows:-
(a) To the wife - $400,000.00 within 30 days of the making of these orders;
(b) To the husband – the balance thereof.
7.
That the husband pay to the wife a further sum of $180,000.00 within twelve months of the making of these orders and such sum shall be secured by way of a mortgage secured over the husband’s real properties situated at S (Lot 62) and at a rate of 7% simple interest. Contemporaneously with the said payment of $180,000.00 plus interest, the wife must provide to the husband, at her cost, a signed release of the said mortgage or mortgages.
8.
The husband shall do all acts and things and submit to the wife for execution by her within 30 days of the making of these orders a mortgage in the terms referred to in order 7 hereof and the husband will do all acts and things and sign all necessary documentation to give effect to stamping and registering that mortgage with respect the to the husband’s real properties at his sole cost.
Costs
9.
The wife shall within 14 days of the making of these orders provide to the Court and to the husband written submissions with respect to the issue of costs;
10.
The husband shall within 14 days of receipt of these submissions provide to the court and to the wife his response with respect to that application.
11.
That the issue of cost be reserved to chambers.
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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