FEDERAL CIRCUIT COURT OF AUSTRALIA
DORAN & KEYES & ANOR [2017] FCCA 729
Catchwords:
FAMILY LAW – Property distribution – de facto couple – argument as to whether advance by intervenor a loan or a gift – wife and children subjected to violence for around ten years from the husband – Kennon adjustment – husband engages in deliberate course of conduct to allow taxes to fall into significant arrears resulting in borrowings for taxation attracting significant penalties requiring further borrowings on mortgage – husband allows mortgage and rates to remain unpaid for years in the knowledge that the house would be sold up by the mortgagee – adjustment for section 90SF(3) factors including wife’s post separation contribution to raising 4 children in difficult financial circumstances – disparity in income – wife on Centrelink benefits – husband earning income – adjustment for waste by the husband and diminished property pool – husband pays no child support – declaration that funds advanced were a loan.
Legislation:
Family Law Act 1975, ss.90SM, 90SM(4), 90SF(3), 90SK
Cases cited:
C & C [2005] FamCA 429;
Stanford & Stanford (2012) FLC 93-495;
Bevan & Bevan [2013] FamCAFC 116;
Watson & Ling (2013) FLC 93-527;
Kennon v Kennon (1997) FLC 92-757;
Kowaliw & Kowaliw (1981) FLC 91-092;
Griers & Malphas(2016) FamCAFC 84;
Jones v Dunkle [1958] HCA 8;
Re: Sabri: Ex parte; Ex parte Brien v Australia and New Zealand Banking Group Ltd (1996) 21 Fam LR 213;
Elias & Elias (1977) FLC 90-267;
Daniher & Garlett [2014] FCCA 2961;
Crandall & Crandell [2009] FamCAFC 120;
Vadisanis & Vadisanis & Anor (2014) FLC 93-593;
Ogilvery & Adams [1981] VR 1041;
Richard Walter Pty Ltd v Federal Commissioner of Taxation (1995) 31 ATR 95;
Meehan & Jones (1982) 149 CLR 571;
In Cranstoun v FCT (1984) 15 ATR 1278;
Calverley v Green [1984] HCA 81.
Applicant: MR DORAN
Respondent: MS KEYES
Intervenor: MS M KEYES
File Number: BRC 1340 of 2015
Judgment of: Judge Willis
Hearing dates: 25 May and 2 & 3 June 2016
Date of Last Submission: 6 July 2016
Delivered at: Cairns
Delivered on: 18 April 2017 REPRESENTATION
Counsel for the Applicant: Mr Mould
Solicitors for the Applicant: North Law
Counsel for the Respondent: Ms Mc Millan Q.C.
Solicitors for the Respondent: Reaston Drummond Law
Counsel for the Intervenor: Mr Cameron
Solicitors for the Intervenor: Croxford Partners ORDERS
IT IS DECLARED THAT:
That the monies advanced by the intervenor to the applicant and the respondent to purchase the real property situated at Property J, formerly known as Property J and more particularly described as (omitted) in the County of (omitted), Title Reference (omitted) (“Property J home”) in the sum of $156,413.55 was advanced as a loan and is due and payable by the applicant and respondent to the intervenor.
The amount of $254,834.02 also advanced as a loan by the intervenor to (omitted) Bank in consideration for a transfer of (omitted) Bank’s mortgage (previously held in…
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CaseChat Overview and Summary
The court was required to determine whether the monies advanced by the intervenor were loans due and payable by the applicant and respondent. Further, the court needed to make orders regarding the transfer of the applicant's interest in a property to the respondent, the payment of a sum by the respondent to the applicant, and the indemnification of the applicant by the respondent in relation to the intervenor's loans and outstanding rates. The court also had to address the division of various bank accounts, chattels, personal belongings, and superannuation interests, as well as the joint liability for school fees.
Judge Willis declared that the sums of $156,413.55 and $254,834.02 advanced by the intervenor were loans due and payable by both the applicant and respondent. The court ordered the applicant to transfer his interest in the Property J home to the respondent, with the respondent to pay the applicant $58,609.00 contemporaneously. The respondent was ordered to indemnify the applicant for the intervenor's loans and outstanding rates. The court then made detailed orders for the division of other assets and liabilities, specifying what each party would retain as their absolute property. The parties were declared jointly liable for outstanding school fees, and the court made orders to ensure the final determination of their financial relationship, including provisions for the Registrar to execute documents if necessary.
Orders
Orders of the court
IT IS DECLARED THAT:
That the monies advanced by the intervenor to the applicant and the respondent to purchase the real property situated at Property J, formerly known as Property J and more particularly described as (omitted) in the County of (omitted), Title Reference (omitted) (“Property J home”) in the sum of $156,413.55 was advanced as a loan and is due and payable by the applicant and respondent to the intervenor.
The amount of $254,834.02 also advanced as a loan by the intervenor to (omitted) Bank in consideration for a transfer of (omitted) Bank’s mortgage (previously held in the name of the applicant and respondent) of the Property J home is due and payable by the applicant and respondent to the intervenor.
IT IS ORDERED THAT:
(1) That the Applicant do all acts and things and sign all documents necessary to transfer to the Respondent, all of his right, title and interest in and to the property situated Property J home.
(2) The Respondent pay to the Applicant the sum of $58,609.00 contemporaneously with the transfer of the property set out in Order 1 above.
(3) The Respondent will thereafter, indemnify the Applicant and keep the Applicant indemnified in relation to:
(a) Each of the loans to the Intervenor namely $156,413.55 (advance for purchase of the land and legal fees) and $254,834.02 (mortgage and legal fees).
(b) The outstanding rates relating to the Property J home.
(4) That the Respondent will retain and/or receive as her absolute property, all her right, title and interest in and to the following:
(a) The Respondent’s bank accounts;
(b) Furniture, chattels and household effects in the possession of the Respondent at the date of these Orders;
(c) The Respondent’s personal belongings and jewellery in her possession at the date of these Orders;
(d) Shares (as indicated on the table of assets).
(5) That the Applicant retain and/or receive as his absolute property, all his right, title and interest in and to the following:
(a) The Applicant’s bank accounts;
(b) Furniture, chattels and household effects in the possession of the Applicant at the date of these Orders;
(c) The Applicant’s personal belongings and jewellery in his possession at the date of these Orders;
(d) The Applicant’s interest in his (omitted) Superannuation Fund.
General
(6) That the Applicant and the Respondent are jointly liable for the outstanding school fees to (omitted) School in the sum of $44,500.00.
(7) That the parties do all acts and things and sign all documents required to implement these Orders.
(8) That unless otherwise specified in these Orders, and except for the purpose of enforcing the payment of any monies due under these or any subsequent Orders:
(a) Each party is solely entitled to the exclusion of the other to all property (including choses-in-action) in their possession as at the date of this order;
(b) Monies pertaining to the credit of the parties in any bank account is to become the property of the person so named;
(c) Each party hereby forgoes any claim they may have to any insurance policy belonging to, or earned by the other; and
(d) 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.
(9) In the event that either party refuses or neglects to sign within fourteen (14) days of a written request to do so, any documents necessary to give effect to the terms of these Orders, the Registrar of the Federal Circuit Court of Australia, be appointed pursuant to section 106A of the Family Law Act 1975 (as amended), to execute such documents on behalf of such party.
(10) The parties intend that pursuant to the terms of section 81 of the Family Law Act 1975 (as amended) these Orders, shall as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.
Costs
(11) Any application for costs the Applicant for costs is to file and serve written submissions attaching a minute of orders sought with reference to the scale within 28 days of the date of this Order.
(12) The Respondent for costs is to file and serve any written submissions in response attaching a minute of orders sought within 14 days of being served.
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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