Gull and Gull - [2008] FamCA 183

FAMILY COURT OF AUSTRALIA

GULL & GULL [2008] FamCA 183

FAMILY LAW – PROPERTY SETTLEMENT – Identification of assets - Treatment of monies held in fixed deposits in India – Treatment of monies held in child’s name – 65/35 split determined

Family Law Act 1975 (Cth) ss 79, 75(2)
Hindu Minority and Guardianship Act 1956

Challen and Challen [2007] FamCA 1292
Omacini and Omacini (2005) FLC 93-218; (2005) 33 Fam LR 134

APPLICANT: Mrs Gull

RESPONDENT: Mr Gull

FILE NUMBER: MLF 2723 of 2004

DATE DELIVERED:

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 26 - 30 November 2007 and 10 December 2007
REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr A Combes

SOLICITOR FOR THE RESPONDENT: Vernon De Gama and Associates
Orders
It is ordered that:
(1)For the purpose of these orders, the net assets of the parties are hereby calculated as being in the sum of $756,013 and are as follows:
(a)The property known as and situated at … (“the former matrimonial home”) fixed at the value of $194,195;
(b)The property known as and situated at …, B (“the [B] property”) fixed at the negative value of -$7,000;
(c)The husband’s interest in the property known as and situated at G, India fixed at the value of $2,000;
(d)The husband’s Suzuki Balino motor vehicle fixed at the value of $6,000;
(e)The husband’s superannuation entitlements fixed at the value of $3,500;
(f)The wife’s superannuation entitlements fixed at the value of $7,000;
(g)Gold jewellery in the wife’s possession fixed at the value of $2,000;
(h)Notional property in the form of:
(i)monies received by the husband by way of rental payments on the B property fixed in the sum of $21,000; and
(ii)monies withdrawn by the husband from the mortgage account in respect of the B property fixed at the sum of $25,300;

(i)Funds held in the following Indian accounts (“the investment monies”) standing, at trial, in the approximate sum of $502,018 being:
(i)O Bank accounts in the name of the husband and the wife, bearing account numbers …, …, …, …, … and …;
(ii)O Bank accounts in the name of the husband, the wife and the child, R, bearing deposit numbers …, …, …, …, … and …;
(iii)M Bank accounts in the name of the husband and the child, R, bearing account numbers … and …;
(iv)M Bank accounts in the name of the husband bearing account numbers …, … and …; and
(v)C Bank accounts in the name of the husband bearing account numbers …, …, … and ….

(2)The net assets be divided between the parties as to 65% to the wife and 35% to the husband on the basis of the provisions of these orders pursuant to which the wife will receive a total of $491,408 and the husband will receive a total of $264,605 subject to paragraph 3 hereof.
(3)In the event that the investment monies amount to a sum other…

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 Gull and Gull

Details

AGLC: Gull and Gull [2008] FamCA 183
Case: [2008] FamCA 183
Decision Date: 19 March 2008

CaseChat Overview and Summary

In the matter of *Gull and Gull*, Mushin J considered the division of net assets between the parties. The dispute concerned the valuation and distribution of various assets, including real estate in Australia and India, motor vehicles, superannuation entitlements, jewellery, and funds held in Indian bank accounts. The court was required to determine the total net asset pool and the appropriate percentage split of these assets between the husband and wife.

The court's reasoning focused on calculating the net asset pool, which was fixed at $756,013. This sum comprised the former matrimonial home, the B property (valued negatively), the husband's interest in an Indian property, a motor vehicle, superannuation entitlements for both parties, gold jewellery, notional property in the form of rental payments and withdrawn funds related to the B property, and significant investment monies held in various Indian bank accounts. The court then ordered a division of these net assets, allocating 65% to the wife and 35% to the husband.

The orders stipulated that the wife would receive a total of $491,408 and the husband $264,605. Specific provisions were made for the repatriation of investment monies from India to Australia, with all outgoings for this process to be paid from those monies. Upon arrival in Australia, these funds were to be held on trust by the husband's solicitor. The orders also detailed the transfer of property interests, with the wife receiving the former matrimonial home and the husband receiving the B property, subject to reciprocal indemnities regarding mortgage liabilities and the removal of any caveats. All other personal property was to vest in the party in possession.

Orders

Orders of the court

It is ordered that:

(1) For the purpose of these orders, the net assets of the parties are hereby calculated as being in the sum of $756,013 and are as follows:

(a) The property known as and situated at … (“the former matrimonial home”) fixed at the value of $194,195;

(b) The property known as and situated at …, B (“the [B] property”) fixed at the negative value of -$7,000;

(d) The husband’s Suzuki Balino motor vehicle fixed at the value of $6,000;

(e) The husband’s superannuation entitlements fixed at the value of $3,500;

(f) The wife’s superannuation entitlements fixed at the value of $7,000;

(g) Gold jewellery in the wife’s possession fixed at the value of $2,000;

(h) Notional property in the form of:

(i) monies received by the husband by way of rental payments on the B property fixed in the sum of $21,000; and

(ii) monies withdrawn by the husband from the mortgage account in respect of the B property fixed at the sum of $25,300;

(i) Funds held in the following Indian accounts (“the investment monies”) standing, at trial, in the approximate sum of $502,018 being:

(i) O Bank accounts in the name of the husband and the wife, bearing account numbers …, …, …, …, … and …;

(ii) O Bank accounts in the name of the husband, the wife and the child, R, bearing deposit numbers …, …, …, …, … and …;

(iii) M Bank accounts in the name of the husband and the child, R, bearing account numbers … and …;

(iv) M Bank accounts in the name of the husband bearing account numbers …, … and …; and

(v) C Bank accounts in the name of the husband bearing account numbers …, …, … and ….

(2) The net assets be divided between the parties as to 65% to the wife and 35% to the husband on the basis of the provisions of these orders pursuant to which the wife will receive a total of $491,408 and the husband will receive a total of $264,605 subject to paragraph 3 hereof.

(3) In the event that the investment monies amount to a sum other than $502,018, they be distributed between the parties on the basis of the wife receiving 65% of the net assets and the husband receiving 35% of the net assets and on the assumption that, excluding the investment monies, the wife has received assets totalling $203,195 and the husband has received assets totalling $50,800 pursuant to these orders.

(4) Both parties sign all documents and do all things necessary to cause the investment monies to be repatriated from India to Australia.

(5) All outgoings required to give effect to paragraph (4) hereof be paid from the investment monies.

(6) Forthwith upon arrival in Australia, the investment monies be paid into an appropriate interest bearing account in Australia to be held on trust by the solicitor for the husband for the benefit of the parties in accordance with these orders.

(7) Forthwith upon the parties’ compliance with paragraphs (4) and (5) hereof:

(a) The husband do all things and sign all documents to transfer all his right, title and interest in the former matrimonial home to the wife at her expense;

(b) The wife do all things and sign all documents to transfer all her right, title and interest in the B property to the husband at his expense; and

(i) The wife indemnify the husband and keep him indemnified against all liability past, present and future in respect of all outgoings including principal and interest on any mortgage and any other loan in respect of the former matrimonial home;

(ii) The husband indemnify the wife and keep her indemnified against all liability past, present and future in respect of all outgoings including principal and interest on any mortgage and any other loan in respect of the B property; and

(iii) Each party remove any caveats placed by or on his or her behalf on either the former matrimonial home or the B property or both so as to give the transferee of such property clear title thereof subject the specific provisions of these orders.

(8) Save as provided herein and subject to the liberty to apply reserved herein, property in all items of personal property forthwith vests in the party presently having possession thereof.

(9) All applications be otherwise dismissed.

(10) Liberty be reserved to both parties to apply in respect of any machinery provision of these orders and generally.

(11) All exhibits be returned to the tendering party at the expiration of 28 days or further order.

(12) All subpoenaed documents be returned to the person producing such documents.

IT IS CERTIFIED

(13) Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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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