FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARBER & BARBER | [2008] FMCAfam 209 |
| FAMILY LAW – Property – relationship and marriage of fourteen years – whether items of property should be notionally added back into asset pool – assessment of contributions – assessment of s.75(2) factors – just and equitable. |
| Family Law Act 1975, ss.75(2), 79 |
| Lee Steere v Lee Steere (1998) FLC 91-626 D & D [2003] FamCA 473 Kennon & Kennon (1997) FLC 92-757 |
| Applicant: | MS BARBER |
| Respondent: | MR BARBER |
| File Number: | ADC 2069 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 28 & 29 February 2008 |
| Date of Last Submission: | 29 February 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 30 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Berman |
| Solicitors for the Applicant: | Norman Waterhouse |
| Counsel for the Respondent: | Mr B McQuade |
| Solicitors for the Respondent: | Tindall Gask Bentley |
ORDERS
Within forty-five (45) days of the date of these orders the husband pay to the wife the sum of Ninety-five thousand eight hundred and four dollars twenty eight cents ($95,804.28).
Contemporaneously with the payment referred to in order (1) hereof, the wife transfer to the husband the whole of her right, title and interest in respect of the property situated at and known as Property W, in the State of South Australia (hereinafter referred to as “the former matrimonial home”).
Upon the transfer of the property referred to in order (2) hereof, the husband shall forthwith discharge all mortgages and charges secured against the aforesaid property and shall obtain the removal of the wife’s liability to pay any and all liabilities pursuant to any such mortgage or charge and shall indemnify and forever keep the wife indemnified in respect of same.
The husband indemnify and keep the wife forever indemnified in respect of all liabilities and indebtedness arising from the operation of the fishery business previously operated by the husband.
The parties pay in equal proportion any capital gains tax arising from the sale of the South Australian Marine Scale Fish Fishery Licence [X] as a result of the contract of sale signed by the parties in February of 2008.
The wife is declared the owner to the exclusion of the husband of:
(i)The motor vehicle currently in her…
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- Case
- [2008] FMCAfam 209
- Decision Date
CaseChat Overview and Summary
The court had to decide on the division of the parties' assets and liabilities, considering both tangible and intangible properties. This included the valuation and distribution of the former matrimonial home, personal possessions, and financial commitments such as tax liabilities, mortgage obligations, and business-related debts. The court also addressed the allocation of specific assets such as vehicles, shares, and business equipment.
The SSAT, in its reasoning, thoroughly examined the contributions of each party to the accumulation of assets, the value of those assets, and the respective financial obligations. The court ordered the husband to pay a specific sum to the wife within a stipulated timeframe and mandated the transfer of certain properties between the parties. Additionally, the court directed the husband to discharge all mortgages on the former matrimonial home and indemnify the wife against any related liabilities. The court also allocated specific personal properties to each party and assigned financial responsibilities, including tax liabilities and business-related expenses.
The final orders included the payment of a specified sum by the husband to the wife, the transfer of ownership of certain properties, and the assumption of specific financial obligations by each party. The court also outlined contingencies for the sale of the former matrimonial home if the husband was unable to meet his financial obligations, detailing the distribution of the sale proceeds. Furthermore, the court declared ownership of specific personal properties and assigned certain financial liabilities to each party, with provisions for enforcement in the event of non-compliance.
Orders
Orders of the court
1.
Within forty-five (45) days of the date of these orders the husband pay to the wife the sum of Ninety-five thousand eight hundred and four dollars twenty eight cents ($95,804.28).
2.
Contemporaneously with the payment referred to in order (1) hereof, the wife transfer to the husband the whole of her right, title and interest in respect of the property situated at and known as Property W, in the State of South Australia (hereinafter referred to as “the former matrimonial home”).
3.
Upon the transfer of the property referred to in order (2) hereof, the husband shall forthwith discharge all mortgages and charges secured against the aforesaid property and shall obtain the removal of the wife’s liability to pay any and all liabilities pursuant to any such mortgage or charge and shall indemnify and forever keep the wife indemnified in respect of same.
4.
The husband indemnify and keep the wife forever indemnified in respect of all liabilities and indebtedness arising from the operation of the fishery business previously operated by the husband.
5.
The parties pay in equal proportion any capital gains tax arising from the sale of the South Australian Marine Scale Fish Fishery Licence [X] as a result of the contract of sale signed by the parties in February of 2008.
6.
The wife is declared the owner to the exclusion of the husband of:
(i) The motor vehicle currently in her possession;
(ii) The moneys standing in the ING account currently standing in her name; and
(iii) The Telstra shares currently registered in her name.
7.
The husband is declared the owner to the exclusion of the wife of:
(i) The motor vehicle currently in his possession;
(ii) The fishing boats currently in his possession;
(iii) The tractor currently in his possession; and
(iv) The tools currently in his possession.
8.
The husband is to be responsible for the payment entirely of his 2006 tax year liability; all accountants’ fees relating to the preparation of that tax return and any other previous or subsequent tax returns; all Workcover charges relating to the fishing business, which he previously operated; and all fishing licence fees relating to the aforementioned South Australian Marine Scale Fish Fishery Licence.
9.
In the event that the husband is unable to comply with order (1) hereof, the parties execute all necessary documents and do all necessary things to place the former matrimonial home on the market for a price of not less than $200,000.00 or such other sum as the parties mutually agree with the proceeds of sale to be paid as follows:
(a) Firstly, to pay the costs, commissions and expenses in relation to the said sale;
(b) Secondly, to discharge all mortgages on the property;
(c) Thirdly to pay any capital gains tax outstanding in respect of the sale of the aforesaid South Australian Marine Scale Fish Fishery Licence;
(d) Fourthly to distribute the balance of the proceeds of sale so that the wife receives 52.5% of the parties net assets and the husband 47.5% of the parties net assets taking into account the items of property to be retained by each party as set out in these reasons for judgment and the orders made therein.
10.
In the event the sale referred to in order (9) becomes necessary, the husband is to pay, as they fall due, all regular instalments in respect of the mortgage, council rates, water rates and household insurance in respect of the former matrimonial home until the completion of the sale referred to in order (9) herein and pending such sale the husband be entitled to occupy the property.
11.
In the event the parties are unable to agree upon the method of sale of the former matrimonial home as may be required by the operation of order (9) and the identity of any real estate agent required to affect such sale these issues be determined by the President of the Real Estate Institute of South Australia or his/her nominee.
12.
Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent order:
(a) Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date;
(b) Each party hereby foregoes any claim they may have for any superannuation benefits belonging to or earned by the other;
(c) All insurance policies become the sole property of the owner named thereunder;
(d) Each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
13.
In the event that either party refuses or neglects to comply with the provisions of these orders:
(a) The Registrar of either the Family Court of Australia at Adelaide or the Registrar of the Federal Magistrates Court at Adelaide is hereby appointed to execute all necessary deeds and documents in the name of the defaulting party required to give effect to these orders.
14.
All applications be otherwise 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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