FEDERAL CIRCUIT COURT OF AUSTRALIA
| HENNE & HENNE | [2018] FCCA 3189 |
| Catchwords: FAMILY LAW – Property – application for property adjustment orders pursuant to s.79 of the Family Law Act 1975 (Cth) – where parties dispute the value of a number of assets –property purchased in the wife’s name with her parents post-separation – parents providing entire purchase price – resulting trust - where presumed intention of a resulting trust is displaced – where presumption of advancement rebutted – where the Court concluded that the property and related liability were to be included in asset pool – assessment of future needs – just and equitable outcome. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79, 80, 81, 117 |
| Applicant: | MS HENNE |
| Respondent: | MR HENNE |
| File Number: | SYC 833 of 2014 |
| Judgment of: | Judge Harper |
| Hearing dates: | 3 & 4 May 2018 |
| Date of Last Submission: | 4 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Livingstone |
| Solicitors for the Applicant: | MCW Lawyers |
| Counsel for the Respondent: | Mr Gardiner |
| Solicitors for the Respondent: | Foulsham & Geddes |
ORDERS
That within 7 days the parties do all acts and things and sign all documents necessary to distribute the funds held in the Bank 1 account in the name of Mr Henne and Ms Henne as follows:
(a)57% of any interest accrued on the credit balance of the account between 4 May 2018 and the date of these orders to…
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- HENNE & HENNE [2018] FCCA 3189
- Case
- [2018] FCCA 3189
- Decision Date
CaseChat Overview and Summary
Judge Harper reasoned that while a resulting trust might ordinarily be presumed when a property is purchased in one party's name with funds provided by another, this presumption was displaced in this instance. The court found that the parents' intention was not to retain a beneficial interest in the property, but rather to gift the funds to their daughter. Consequently, the presumption of advancement, which presumes a gift where a husband or father provides for a wife or child, was also considered and found to be rebutted by the evidence. The court concluded that the property and its associated liability should be included in the asset pool for division.
The court made various orders to effect the property adjustment. These included the distribution of funds from a joint bank account, with specific percentages of accrued interest and a capital sum allocated to the husband, and the balance to the wife. The wife was declared the sole legal and beneficial owner of her interest in Business H, while the husband was declared the sole legal and beneficial owner of his shareholding in Business I, with the husband to indemnify the wife against any liabilities related to Business I. Ownership of a boat and box trailer was also vested solely in the husband. Each party was declared the sole owner of other property in their possession and solely responsible for their personal liabilities, except as otherwise ordered. The court also provided for the appointment of a Registrar to execute documents if a party refused to comply with the orders, and set a timeframe for any applications regarding costs.
Orders
Orders of the court
1.
That within 7 days the parties do all acts and things and sign all documents necessary to distribute the funds held in the Bank 1 account in the name of Mr Henne and Ms Henne as follows:
(a) 57% of any interest accrued on the credit balance of the account between 4 May 2018 and the date of these orders to the respondent husband;
(b) 43% of any interest accrued on the credit balance of the account between 4 May 2018 and the date of these orders to the applicant wife;
(c) $226,652 to the respondent husband; and
(d) The balance to the applicant wife.
2.
Simultaneously with compliance with Order 1, the respondent husband pay to the applicant wife the amount of $7,000 in satisfaction of outstanding costs orders against the respondent husband made in favour of the wife.
3.
That the applicant wife be declared to be the sole legal and beneficial owner of her interest in the Business H.
4.
That the Respondent Husband be declared to be the sole legal and beneficial owner of his shareholding in the company Business I.
5.
That simultaneously with Order 3 the Respondent Husband shall do all acts and things and sign all documents as are necessary to release the Applicant Wife from and indemnify the Wife against any liability, present or contingent including tax and bank liabilities in respect Business I.
6.
That the Respondent Husband be declared to be the sole legal and beneficial owner of the boat and box trailer, and the parties will do all acts, things and sign all documents necessary to transfer ownership of the boat to the Husband.
7.
That except as otherwise provided in these Orders each party be declared the sole legal and beneficial owners of all other items of property presently in their respective possession or control but not limited to:
(a) All other real and personal property now in their possession, custody or control including but not limited to money, shares, real property, motor vehicles, furniture, furnishings and personal effects.
(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in their sole names respectively.
(c) All interests in life insurance policies and superannuation funds standing in their sole names respectively.
8.
That except as otherwise provided in these Orders each party be solely responsible for all personal liabilities including but not limited to credit card liability, personal loans, lines of credit and all other personal debts outstanding as at the date of these Orders.
9.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, a Registrar or Deputy Registrar of the Federal Circuit Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
10.
If any party seeks an order for costs, an appropriate application to the Court may be made within 28 days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.
THE COURT NOTES THAT:
11.
Any application as to costs will be dealt with by way of written submissions, unless the parties request to be heard orally.
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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