FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FB & UB & ORS | [2006] FMCAfam 289 |
| FAMILY LAW – Property – accrued jurisdiction – where adult children claim equitable interest in parents investment property – trusts – resulting and constructive trusts – whatever equity adult son had in investment property extinguished by the time he vacated property – where adult daughter establishes constructive trust – equity makes the minimal order that is necessary to relieve the conscience of the legal owner – adult daughter entitled to an equitable charge over investment property – determination of asset pool – obligation to give full and frank disclosure – notional add-backs. |
| Family Law Act 1975, ss.75, 79 Child Support (Assessment) Act 1989 Real Property Act 1900 Conveyancing Act 1919 Evidence Act 1995 (Cth) |
| Dougherty (1987) FLC 91-823 Egan (1989) 13 FLR 577 Spellson and George (1989) 13 FLR 242 Bate v Priestley (1989) 13 FLR 376 Elassy and Hamy (2006) FamCA 216 In the Marriage of Lee Steere (1985) FLC 91-626 In the Marriage of Ferraro (1993) FLC 92-335 In the Marriage of Clauson (1995) FLC 92-593 Russell v Russell (1999) FLC 92-877 Weir v Weir (1993) FLC 92-338 Black v Kellner (1992) FLC 92-287 Junti (1986) FLC 91-759 Mezzacappa (1987) FLC 91-853 Jenkins v Livesey (1985) 1 All ER 106 Luciano (2000) FamCA 401 Calverly v Green (1984) 155 CLR 242 Allen v Snyder (1977) 2 NSWLR 685 Black Uhlans Incorporated v New South Wales Crime Commission (2002) NSWSC 160 Muschinski v Dodds (1985) 160 CLR 583 Atwood v Maude 107 (1868) L.R. Ch. App., at pp. 374-375 Jessel M.R., Lyon v Tweddell 108 (1881) 17 Ch. D. 529 Baumgartner (1987) 164 CLR 137 Green v Green (1989) 17 NSWLR 343 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR Beatty v Guggenheim Exploration Co (1919) 22 NY at 389 Cooke v Cooke (1987) VR 625 at 639 Wright v Wright & Adams (1996) FLR 89 Nichols (1986) 4 BPR 9240 Omacini and Omacini (2005) FLC 93-218 DJM and JLM (1998) FLC 92-816] Townsend and Townsend (1995) FLC 92-569 Kowaliw and Kowaliw (1981) FLC 91-092 Hauff (1986) FLC 91-747 Chorn & Hopkins (2004) FLC 93-204 Tomasetti (2000) FLC 93-023 |
| Applicant: | FB |
| Respondent: | UB |
| First Intervener: | GB |
| Second Intervener: | AB |
| File Number: | PAM548 of 2004 |
| Judgment of: | Ryan FM |
| Hearing dates: | 19-21 July 2005, 29-30 August 2005, 21-22 December 2005 |
| Final submissions: | 16 May 2006 |
| Delivered at: | Parramatta |
| Delivered on: | 16 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. G. Thisleton |
| Solicitors for the Applicant: | Pye Lawyers |
| Counsel for the Respondent: | Ms. L. Snelling |
| Solicitors for the Respondent: | Sayan & Associates |
| Counsel for the Interveners: | Mr. D. Maddox |
| Solicitors for the Interveners: | Barber & Massey |
ORDERS
Within twelve weeks of the date of these orders the wife pays to the husband the sum of sixty nine thousand four hundred and fifty five dollars and ninety five cents ($69,455.95).
Simultaneously upon compliance by the wife with Order (1) the husband shall do all acts…
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- AGLC
- Fb & UB [2006] FMCAfam 289
- Case
- [2006] FMCAfam 289
- Decision Date
CaseChat Overview and Summary
The court meticulously evaluated the evidence presented regarding the parties' financial situations, their contributions to the matrimonial assets, and their respective needs post-separation. It considered the duration of the marriage, the age and health of the parties, and their earning capacities. The court held that the wife should pay the husband a specified lump sum and that the property at Rooty Hill should be transferred to the husband upon compliance. If the wife failed to make the payment, the property was to be sold, and the proceeds distributed according to the court's order. Furthermore, the court found that GB held a 15.5 per cent equitable interest in the Colyton property, which could be secured by caveat and would be payable to her upon the property's sale or the husband's death, whichever occurred first. The court also made provisions for the return of exhibits and subpoenaed material, and dismissed other outstanding applications unless related to costs.
The court's orders directed that the wife must pay the husband $69,455.95 within twelve weeks. Upon payment, the husband was to transfer his interest in the Rooty Hill property to the wife. If the payment was not made, the property was to be sold, and the proceeds distributed according to the court's directions. The wife was to transfer her interest in the Colyton property to the husband upon his compliance with the order regarding the Rooty Hill property. GB's equitable interest in the Colyton property was declared, with payment to be made upon the sale of the property or the husband's death. The court further stipulated the return of exhibits and subpoenaed material, and dismissed other outstanding applications, except for those related to costs.
Orders
Orders of the court
1.
Within twelve weeks of the date of these orders the wife pays to the husband the sum of sixty nine thousand four hundred and fifty five dollars and ninety five cents ($69,455.95).
2.
Simultaneously upon compliance by the wife with Order (1) the husband shall do all acts and execute all documents as are necessary to transfer to the wife the whole of his right, title and interest in the property situate at Rooty Hill being the whole of the land in Certificate of Title Folio Identifier 27/BB/2042.
3.
In the event the wife fails to comply with Order (1) the parties do all such acts and execute all such documents as may be required to effect a sale of the former matrimonial home situate at Rooty Hill to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
4.
Upon the completion of the sale proceeds of the sale be applied as follows:
(a) To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the matrimonial home.
(b) Fifty per cent to the wife.
(c) Balance then remaining to the husband who shall immediately pay the wife one hundred and twenty thousand five hundred and forty four dollars and five cents ($120,544.05).
5.
Simultaneously upon compliance by the husband with Order (2) the wife shall do all acts and execute all documents as are necessary to transfer to the husband the whole of her right, title and interest in the property situate at Colyton being the whole of the land in Certificate of Title Folio Identifier 17/SP36697.
6.
The court declares that GB has a 15.5 per cent interest by way of an equitable charge in the property at Colyton. GB’s equitable interest in this property may be secured by caveat and shall be paid to her upon the property’s sale or the husband’s death, whichever first occurs.
7.
All exhibits tendered in these proceedings shall be returned at the expiration of one calendar month unless an appeal is lodged.
8.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
9.
Other than any costs applications, all outstanding applications are dismissed.
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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