FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARDY & MARKSON | [2011] FMCAfam 1061 |
| FAMILY LAW – Property division – wife’s inheritance forms bulk of property pool – 9 year relationship – one child – husband’s financial and non-financial contributions not to be given token weight – husband and wife both stay at home to raise their daughter – asset by asset or global approach – wife seeks to assess contributions on two pools and quarantine her inheritance from s.79 property division – global approach adopted – s.79 gender neutral – change of schooling. |
| Family Law Act 1975, ss.60 CC, 65 DAA, 75(2), 79 |
C & C (2005) 33 Fam LR 414
In the Marriage of Hickey (2003) FLC 93-143
Mallet and Mallet (1984) 156 CLR (High Court)
In the Marriage of Norbis (1986) FLC 91-712 161 CLR 513 (High Court)
In the Marriage of Lee Steer & Lee Steer (1985) FLC 91-626 (Full Court)
Clauson v Clauson (1995) FLC 92-595 (Full Court)
Pierce and Pierce (1999) FLC 92-844
Money v Money (1994) FLC 92-485 at 81,054 (Full Court)
Williams & Williams [2007] FamCA 313 (Full Court)
Farmer & Bramley (2000) FLC 93-060
Figgins & Figgins (2002) FLC 93-122
Norman & Norman [2010] FamCAFC 66
AJO v GRO (2005) FLC 93-218
Pappas & Pappas [2008] FMCAfam 790
C & C [1998] FamCA 143
RE G: Children’s Schooling [2000] FamCA 462 (Full Court)
R and R Children’s Wishes (2000) FLC 93-000
McMahon and McMahon (1995) FLC 92-606
H & W (1995) 18 FamLR 788
Kennon and Kennon (1997) FLC 92-757
Norbis & Norbis (1986) FLC 91-712
Albany & Albany (1988) FLC 90-905
Marzorski & Albright [2007] FamCA 520
Napthali and Napthali (1989) FLC 92-021
Pastrikos & Pastrikos (1980) FLC 90-897
Kowaliw & Kowaliw (1981) FLC 91-092
NHC & RCH [2004] FamCA 633
Browne and Green (1999) FLC 92-873
GBT & BJT [2005] FamCA 683
| Applicant: | MR HARDY |
| Respondent: | MS MARKSON |
| File Number: | CSC 508 of 2009 |
| Judgment of: | Willis FM |
| Hearing dates: | 9 & 10 February 2011 |
| Date of Last Submission: | 18 May 2011 |
| Delivered at: | Cairns |
| Delivered on: | 20 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | AMR Legal |
| Counsel for the Respondent: | Mr McPherson |
| Solicitors for the Respondent: | MacDonnells Law |
ORDERS
PROPERTY MATTERS
IT IS ORDERED THAT:
The Wife is to pay to the Husband:
(a)The sum of $393,012.00 no later than 45 days from the date of this Order, such sum representing 10% of the property pool described at paragraph 72 of this judgment less the items in the husband’s possession being the Toyota vehicle at $35,450.00 and the husband’s superannuation of $24,115.00;
And further the Wife is to pay the Husband a further sum being:
(b)10% of the sale proceeds of the following items, upon sale of each item, less any advertising costs.
(i)The [V] business, Ms Markson & Mr Hardy trading as [J];
(ii)The 2006 Opalite Serenity Caravan;
(iii)The 2002 Whitley Cruiser 770 Boat.
Each of the parties are to do all…
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- HARDY & MARKSON [2011] FMCAfam 1061
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- [2011] FMCAfam 1061
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CaseChat Overview and Summary
The court began by outlining the property pool and the division of the assets and liabilities between the parties. The court determined that the wife was to pay the husband a certain sum of money and a percentage of the sale proceeds of certain assets. The court also made orders regarding the sale of the assets, ensuring that the process was conducted in an open and transparent manner. The court further ordered that the husband vacate a certain property upon the wife's payment of the sum of money, and that the wife transfer a vehicle to the husband.
The court also addressed the issue of the return of certain items belonging to the wife's father, and the distribution of other property between the parties. The court made orders regarding the liabilities and debts of each party, and the obligations of the parties in relation to the property. The court also appointed the Registrar of the Federal Magistrates Court to execute documents and do all acts necessary to give effect to the orders in the event that either party failed to do so.
In relation to the child of the marriage, the court made orders concerning the child's schooling, changeover times, and the issuance of a passport. The court also made orders regarding the parties' obligations in relation to the child's overseas travel, including the requirement for the parties to attend dispute resolution before filing an application if they were unable to agree on a proposed overseas trip for the child.
Orders
Orders of the court
PROPERTY MATTERS
IT IS ORDERED THAT:
1.
The Wife is to pay to the Husband:
(a) The sum of $393,012.00 no later than 45 days from the date of this Order, such sum representing 10% of the property pool described at paragraph 72 of this judgment less the items in the husband’s possession being the Toyota vehicle at $35,450.00 and the husband’s superannuation of $24,115.00;
And further the Wife is to pay the Husband a further sum being:
(b) 10% of the sale proceeds of the following items, upon sale of each item, less any advertising costs.
(i) The [V] business, Ms Markson & Mr Hardy trading as [J];
(ii) The 2006 Opalite Serenity Caravan;
(iii) The 2002 Whitley Cruiser 770 Boat.
2.
Each of the parties are to do all acts and things necessary to ensure an early sale of the items referred to in Order 1 (b) herein. Each party is to ensure that the process of sale and receipt of sale proceeds is conducted in an open and transparent manner that any sale is an arms length transaction, and each is to account to the other for the sale proceeds that come into their possession and division of funds pursuant to the terms of this Order. In the event as to any dispute as to the marketing method or sale price, the Wife is appointed trustee for sale and she has the duties and obligations of a trustee in all respects.
3.
Upon the Wife paying to the Husband the sum of $393,012.00 in Order 1 (a) herein, the Husband is to forthwith vacate the real property situated at Property F, [F] in the State of Queensland, more particularly described in Title Reference [omitted] (“Property F”) NOTING that the husband has a minimum time to continue to occupy the Property F property of 21 days from the date of this Order.
4.
Upon the Wife making the payment to the husband pursuant to Order 1 (a) and (b) herein, then;
(a) The Husband will relinquish all claims, demands and interest of whatsoever kind (both legal and beneficial) in the property of the wife which she retains pursuant to the terms of this Order, including his interest in the Partnership of Ms Markson and Mr Hardy trading as [J] and its assets; [D] Pty. Ltd and its assets; [S] Pty. Ltd and its assets.
(b) The Wife is solely entitled, to the exclusion of the husband, to the following property:
(i) The Property F property;
(ii) The real property situate at Property P, [P] in the State of Queensland, being more particularly described in Title Reference [omitted]; together with all liability to Westpac pursuant to the home loan secured by registered mortgage over such property and properties described in subparagraph (iii) below;
(iii) The real property situate at Property V, [P] in the State of Queensland, being more particularly described in Title Reference [omitted];
(iv) The real properties situate at Unit 5, 6, 7 and 10 and 37 Property W, in the State of Victoria, being more particularly described in Certificates of Title Volume [omitted];
(v) All interest in the time share unit situate in Bali, Indonesia;
(vi) The Wife’s interest in [D] Pty Ltd CAN [omitted], the assets and liabilities of which include but are not limited to:
a. The real properties situate at Unit 4 and 5, Property C in the State of Queensland;
b. The sale proceeds of the real property situate at Property E in the State of Victoria;
c. The 2009 Range Rover motor vehicle, registration [omitted];
d. The liability to St George Finance Ltd secured by the Good mortgage facility, Account No [omitted], over the said Range Rover motor vehicle;
(vii) The Wife’s interest in [S] Pty Ltd CAN [omitted], the assets and liabilities of which include but are not limited to:
a. The sale proceeds of real properties situate at Units 1, 2, 3 and 4 Property G in the State of Victoria.
(viii) The share portfolio in the Wife’s name;
(ix) The 1984 Porsche, unregistered in the Wife’s possession.
5.
The Wife will cause to be transferred to the husband, the 2007 Toyota Landcruiser motor vehicle (registered in the name of [D] Pty. Ltd and in the possession of the husband). The transfer will be at the cost of the husband (but not to include any tax payable by [D] associated with the transfer) NOTING that the vehicle is to be transferred encumbrance free. THEREAFTER the husband is solely responsible for all claims of whatsoever kind which arise in relation to his ownership of the vehicle and the husband will indemnify [D] Pty. Ltd against all liabilities and claims of whatsoever kind.
6.
The Husband is to return to the Wife the following items within fourteen days of the date of this Order:
(a) All papers and documents belonging to the Wife’s father.
(b) Wife’s Father’s tools:
(i) Blue timber box of carpentry tools;
(ii) Ladders – Long ladder and step ladder;
(iii) Hand saws;
(iv) Shovels – long and short;
(c) Chainsaw;
(d) Ride on mower;
(e) [X]’s motor bike;
(f) Wife’s Father’s, Mother’s and Grandmother’s items:
(i) Crystal 2 x vases, Wine glasses, flutes, brandy balloons;
(ii) Silver wine buckets x 2;
(g) Boxes of Father’s personal belongings.
(h) Contents removed from Caravan sheets, pillows, towels, power cord, chairs, table, blankets, and doonas.
(i) Engine for boat – tender.
(j) Dive gear – BCD, Regulator, Computer, etc.
7.
Unless otherwise specified in these Orders:
(a) Each party is solely entitled, to the exclusion of the other, to all other property of whatsoever nature and kind, including choses in action, held by such party as at the date of these Orders, and for that purpose:
(i) Bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof;
(ii) Insurance policies are deemed to be in the possession of the beneficiary thereof;
(iii) Superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlement;
(b) Each party be solely liable for, and will indemnify the other against, any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(c) Each party is solely liable for all debts held in the name of that party.
8.
Each party will do all acts and things and sign all documents necessary to give effect to these Orders by the time specified in these Orders, and failing specification of time, within a reasonable time. In the event either party fails to do so, pursuant to section 106A of the Family Law Act 1975 (Cth) the Registrar of the Federal Magistrates Court of Australia, Cairns Registry is hereby appointed to execute all documents in the name of the defaulting party and to do all acts necessary to give validity and operation to such documents as to give effect to these Orders.
9.
Liberty to apply in relation to the workings of these Orders.
CHILD MATTERS
The following Orders are to be read in conjunction with the Parenting Orders made on 8 February 2011.
IT IS ORDERED THAT:
Schooling
10.
The child [X] born [in] 2003 (“the child”) is to attend the [M] Campus of [T] School for her remaining primary school years and each of the parties are to do all acts and things and sign all documents to facilitate her enrolment.
Changeovers
11.
All changeovers pursuant to these Orders are to occur at school on a school day, and on a non-school day at [omitted] Playground.
Christmas Day
12.
The child is to spend from 12 noon Christmas Eve until 2:00 pm Christmas Day with the Father in 2011 and each alternate year thereafter and with the Mother from 12 noon Christmas Eve until 2.00pm Christmas Day in 2012 and each alternate year thereafter.
Overseas Travel/ Passport for the Child
13.
Each party do all acts and things and sign all documents to enable a passport to issue for the child. Upon the passport issuing, each parent is to do all acts and things to ensure the delivery up of the passport to the Registry of the Federal Magistrates Court in Cairns where it is to be held and released to either party only pursuant to an Order of this Court, or the written agreement of each of the parties, whose physical and joint presence will be required at the Registry, prior to the passport being released.
14.
That each party is permitted to travel within Australia and to an overseas destination during any time that the child spends with that parent pursuant to the terms of the parenting Orders made in this matter.
15.
In the event that the parties are unable to agree to a specific proposed overseas trip for the child, they are to first attend at dispute resolution in an endeavour to resolve the matter, prior to filing an application.
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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