Dobbs and Dobbs - [2018] FamCA 66

FAMILY COURT OF AUSTRALIA

DOBBS & DOBBS

[2018] FamCA 66

FAMILY LAW – PROPERTY – where the assets were modest but disputes arose over issues such as “add backs”, money lost in a failed business and where the wife had remained in the former home but not paid the mortgage – where there were disputes about contribution which were related to money issues but both parties had made transfers of their property to the other for benefits. Orders made.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Browne & Green (1999) FLC 92-873,
Kowaliw & Kowaliw (1981) FLC 91-092
Rosativ Rosati (1998) FLC 92-804

APPLICANT:

Mr Dobbs

RESPONDENT:

Ms Dobbs

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

8793

2015

DATE DELIVERED:

15 February 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

9 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Mccreadie

SOLICITOR FOR THE APPLICANT:

Calley Rajah Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Macfarlane

SOLICITOR FOR THE RESPONDENT:

Costanzo Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Kildea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the husband transfer to the wife all of his interest in the house at B Street, Suburb C.
That the remaining funds from the sale of the property at F Street after allowing for the anticipated capital gains tax liability, be immediately paid to the husband.
The husband retain and the wife relinquish any interest in the parties MISA account.
That the wife forthwith place the house at D Street, Suburb E on the market for sale on terms to be agreed and failing agreement, upon order of the court. Upon the settlement of the sale, the proceeds be dispersed as follows:
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage to the Commonwealth Bank;
(c)Thirdly, to set aside the sum of $108,000 to cover the capital gains tax liability arising from the sale; and
(d)Fourthly, to substitute the net remaining balance for the figure set out as the net equity anticipated from the sale of D Street in paragraph 42 of the reasons for judgment this day.
That upon the completion of the matters required of the parties in order [4] hereof, the equity in the assets set out in paragraph 42 of the said reasons be divided as to 55 per cent to the wife and 45 per cent to the husband.
That if necessary, the wife pay to the husband (within such time as is agreed, and failing agreement within 30 days after the calculations are concluded in order [5]), such sum as is necessary to enable the husband to receive his entitlement under order [5].
If the wife fails to make the payment required as contemplated by order [6], she forthwith thereafter place the house at B Street on the market for sale on terms and conditions to be agreed and failing agreement as ordered by the court and the proceeds…

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 Dobbs and Dobbs

Details

AGLC: Dobbs and Dobbs [2018] FamCA 66
Case: [2018] FamCA 66
Decision Date: 15 February 2018

CaseChat Overview and Summary

The parties to this proceeding were a husband and wife, and the dispute concerned the division of their property. The decision was made by Cronin J.

The court was required to determine how the parties' various assets and liabilities, including real estate, financial accounts, and superannuation interests, should be divided between them. This involved considering the equitable distribution of these assets and liabilities in light of the circumstances of the marriage.

Cronin J applied principles of property settlement under the *Family Law Act 1975* (Cth). The court's reasoning involved a detailed assessment of the parties' financial positions and the identification of specific assets and their respective values, as outlined in paragraph 42 of the reasons for judgment. The orders reflect a complex division, including the transfer of interests in properties, the distribution of sale proceeds after accounting for sale costs, mortgages, and capital gains tax liabilities, and the division of remaining equity in a specified ratio. The court also made specific orders regarding a self-managed superannuation fund pursuant to s 90MT of the *Family Law Act 1975*, and the division of personal property.

The court made detailed orders for the transfer of property interests, the sale of certain assets, and the distribution of proceeds. These orders included specific provisions for the payment of capital gains tax and mortgages, and a division of the net equity in assets as to 55 per cent to the wife and 45 per cent to the husband. Further orders addressed the division of a superannuation fund and the allocation of personal property. All outstanding applications between the parties, save for issues of costs, were dismissed.

Orders

Orders of the court

That the husband transfer to the wife all of his interest in the house at B Street, Suburb C.

That the remaining funds from the sale of the property at F Street after allowing for the anticipated capital gains tax liability, be immediately paid to the husband.

The husband retain and the wife relinquish any interest in the parties MISA account.

That the wife forthwith place the house at D Street, Suburb E on the market for sale on terms to be agreed and failing agreement, upon order of the court. Upon the settlement of the sale, the proceeds be dispersed as follows:

(a) First, to pay all costs, commissions and expenses of the sale;

(b) Secondly, to discharge the mortgage to the Commonwealth Bank;

(d) Fourthly, to substitute the net remaining balance for the figure set out as the net equity anticipated from the sale of D Street in paragraph 42 of the reasons for judgment this day.

That upon the completion of the matters required of the parties in order [4] hereof, the equity in the assets set out in paragraph 42 of the said reasons be divided as to 55 per cent to the wife and 45 per cent to the husband.

That if necessary, the wife pay to the husband (within such time as is agreed, and failing agreement within 30 days after the calculations are concluded in order [5]), such sum as is necessary to enable the husband to receive his entitlement under order [5].

If the wife fails to make the payment required as contemplated by order [6], she forthwith thereafter place the house at B Street on the market for sale on terms and conditions to be agreed and failing agreement as ordered by the court and the proceeds of the sale be applied as follows:

(a) First, to pay all costs, commissions and expenses of the sale;

(b) Secondly, to discharge the mortgage to the Commonwealth Bank;

(c) Thirdly, to substitute the figure set out as the value of B Street in paragraph 42 of the reasons for judgment this day; and

(d) Fourthly, to divide the assets set out in paragraph 42 of the reasons for judgment according to order [5].

Pursuant to s 90MT of the Family Law Act 1975, whenever a splittable payment becomes payable to the husband in respect of his interest in the self-managed superannuation fund held in BT Investor Wrap Personal Super Plan, the wife be paid the base amount which is fixed in the sum of $54,000 and there be a corresponding reduction in the entitlement of the husband in the said fund.

The operative time for the purposes of order 8 is the 10th day after the date of these orders.

10.

That the husband retain, and the wife relinquish any interest in, the property in his possession not otherwise covered by these orders.

11.

That the wife retain, and the husband relinquish any interest in the property in her possession not otherwise covered by these orders.

12.

That save as to issues of costs, all outstanding applications between the parties are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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