FAMILY COURT OF AUSTRALIA
| JAMINE & JAMINE AND ANOR (NO 2) | [2011] FamCA 843 |
| FAMILY LAW – PROPERTY – Division of property – Creditor – Maintenance of adult disabled daughter |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Trustee Act 1958 (Vic) |
| Ascot Investments Pty Ltd v Harper and Harper (1981) FLC 91-000 Biltoft and Biltoft (1995) FLC 92-614 Black and Kellner (1992) FLC 92-287 Chang and Su (2002) FLC 93-117 Davidson and Davidson (No 2)(1994) FLC 92-469 Gould and Gould (2007) FLC 93-333 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 In the Marriage of Clausen (1995) 18 Fam LR 693 In the Marriage of Weir (1993) FLC 92-338 Kannis and Kannis [2002] FamCA 1150; (2003) FLC 93-135 Mallett and Mallett (1984) 156 CLR 605 Miller v Cameron (1936) 54 CLR 572 Norbis and Norbis (1986) 161 CLR 513 Prince (19840 FLC 91-501 Prpic and Prpic (1995) FLC 92-574 Quinton v Proctor [1998] 4 VR 469 Tuck and Tuck (1981) FLC 91-021 VAK and AK [2005] FamCA 803 |
| APPLICANT: | Ms Jamine |
| RESPONDENT: | Mr Jamine |
| INTERVENOR: | Mr S |
| FILE NUMBER: | MLC | 3286 | of | 2008 |
| DATE DELIVERED: | 3 November 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 27 September 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Davis |
| SOLICITOR FOR THE APPLICANT: | Slater & Gordon |
| COUNSEL FOR THE RESPONDENT: | Mr Laidlaw |
| SOLICITOR FOR THE RESPONDENT: | Bowlan Dunstan & Associates |
| COUNSEL FOR THE INTERVENOR: | Mr Ambikaipalan |
| SOLICITOR FOR THE INTERVENOR: | Ambi Associates Lawyers |
Orders
That forthwith, the husband transfer to the wife all of his interest in the property at … D Street, Suburb B.
That as and from the wife receiving the signed transfer of land in respect of the property at … D Street, Suburb B, she indemnify, pay and be responsible for the mortgage encumbering the said property and also the overdraft to the extent of $3,200.
That upon being requested to do so, the husband sign all such documents as may be required of him to resign as trustee of the trust pertaining to the one half interest in the property at … D Street, Suburb B in which the declared beneficiary is Ms E and further, to transfer the interest in the trust property to the wife as sole trustee.
That forthwith, the proceeds of the sale of the parties’ Suburb C property held on trust for them, be paid to the wife.
That the husband retain, and the wife relinquish any interest in, the real properties at Town F (and to the extent that the wife is required to sign any transfer or other document in relation to such properties, she do so upon receipt of those documents from the husband).
That save as to arrears as at this date, all extant spousal maintenance orders are discharged.
That the husband and the wife forthwith do all acts and things required to place the real properties at I Street, Suburb G and J Street,…
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- Case
- [2011] FamCA 843
- Decision Date
CaseChat Overview and Summary
The court was required to determine the equitable distribution of the parties' property pool, which included real estate, a trust interest, shares, and superannuation. Key issues included the transfer of property interests, the indemnification of liabilities such as mortgages and overdrafts, the resignation and appointment of trustees, the sale of jointly owned properties, the discharge of spousal maintenance orders, and the provision for the future maintenance of Ms E. The court also had to address the allocation of proceeds from property sales and the distribution of remaining assets and liabilities between the parties.
Cronin J applied principles of property adjustment under family law legislation, aiming for a just and equitable outcome. The reasoning involved a detailed assessment of the parties' financial circumstances and the nature of their respective interests in the assets. The court ordered the husband to transfer his interest in a specific property to the wife, who would then be solely responsible for the associated mortgage and overdraft. Proceeds from the sale of another property were to be paid to the wife. The court also ordered the sale of two other properties, with the proceeds to be applied first to sale costs and encumbrances, then to a capital gains tax provision, and finally distributed between the parties on a percentage basis (67.5% to the wife and 32.5% to the husband) after accounting for certain deductions, including a capitalised maintenance sum for Ms E. Spousal maintenance orders were discharged, save for existing arrears. Provisions were made for the establishment of a trust account for Ms E's maintenance, funded by a significant sum from the property sale proceeds, with specific rules for its management and distribution. The court also ordered the husband and wife to pay a total sum of $147,000 for Ms E's maintenance, to be held and disbursed by the wife as trustee.
The court made detailed orders regarding the transfer of property interests, the sale of assets, and the distribution of proceeds. The husband was ordered to transfer his interest in one property to the wife, who would then assume responsibility for its mortgage and an overdraft. Proceeds from the sale of another property were to be paid directly to the wife. Two other properties were to be sold, with the net proceeds distributed according to a specified formula, allocating a larger percentage to the wife. Spousal maintenance orders were discharged, except for arrears. A substantial sum was allocated for the maintenance of Ms E, to be held in a trust account managed by the wife. The court also addressed the division of other assets, including shares, superannuation, and cash, and dismissed an application by Mr S. Provisions were made for the signing of documents by a registrar if necessary and for the application of costs.
Orders
Orders of the court
1.
That forthwith, the husband transfer to the wife all of his interest in the property at … D Street, Suburb B.
2.
That as and from the wife receiving the signed transfer of land in respect of the property at … D Street, Suburb B, she indemnify, pay and be responsible for the mortgage encumbering the said property and also the overdraft to the extent of $3,200.
3.
That upon being requested to do so, the husband sign all such documents as may be required of him to resign as trustee of the trust pertaining to the one half interest in the property at … D Street, Suburb B in which the declared beneficiary is Ms E and further, to transfer the interest in the trust property to the wife as sole trustee.
4.
That forthwith, the proceeds of the sale of the parties’ Suburb C property held on trust for them, be paid to the wife.
5.
That the husband retain, and the wife relinquish any interest in, the real properties at Town F (and to the extent that the wife is required to sign any transfer or other document in relation to such properties, she do so upon receipt of those documents from the husband).
6.
That save as to arrears as at this date, all extant spousal maintenance orders are discharged.
7.
That the husband and the wife forthwith do all acts and things required to place the real properties at I Street, Suburb G and J Street, Suburb K on the market for sale on terms and conditions to be agreed and failing agreement as determined by the Court on application and upon the settlement of the sale of the first of those properties sold, the proceeds be applied as follows:
(a) First, to pay all costs, commissions and expenses of the sale;
(b) Secondly, to discharge any encumbrance affecting the first of the properties so sold;
(c) Thirdly, to set aside the sum of $50,000 into an interest bearing account in the joint names of the parties for the purposes of covering any capital gains tax liability arising from the sale of either of the properties so sold;
(d) Fourthly, to pay to the wife an amount that gives her 67.5% of the net pool of assets plus the arrears of spousal maintenance referred to in paragraph 6 of these orders less $73,500 being her one half share of the $147,000 capitalised maintenance for Ms E referred to hereafter; and
(e) Fifthly, to pay to the husband an amount to gives him 32.5% of the net pool of assets less the arrears of spousal maintenance referred to in paragraph 6 of these orders and less $73,500 being his one half share of the $147,000 capitalised maintenance for Ms E referred to hereafter.
8.
That upon the settlement of the sale of the second of the two properties, the proceeds be applied as follows:
(a) first, to pay all costs, commissions and expenses of the sale;
(b) secondly, to discharge any encumbrance affecting the sale;
(c) thirdly, to pay any shortfall in respect of any of the matters referred to in paragraph 7 hereof and otherwise distribute the proceeds according to the method there set out.
9.
That the husband retain and the wife relinquish any interest in:
(a) the shares referred to in the reasons for judgment delivered this day; and
(b) the husband’s superannuation;
10.
That the wife retain and the husband relinquish any interest in the cash in her account.
11.
That the husband and the wife pay for the maintenance of Ms E, the sum of $147,000 upon the terms and conditions set out hereafter.
12.
That the wife forthwith open a bank account in her name as trustee for Ms E for which she alone shall be the signatory until further order, into which the sum of $147,000 from the proceeds of the sale of the properties above shall be deposited for the maintenance of Ms E to be used by the wife for that purpose and drawn at the rate of no more than $16,334 per annum until such time as the capital funds are expended in the daily support of Ms E.
13.
Any interest earned by the said trust account shall be taxable in the hands of the wife but any such tax shall be paid from the corpus of the account.
14.
That on the anniversary of these orders, the wife provide to the husband the details of the account for so long as the husband provides an address to which such details can be sent.
15.
That should Ms E die at any time whilst there is a balance in the said account, the remaining balance shall be divided equally between the husband and the wife.
16.
That the application of Mr S is dismissed.
17.
That should any party seek costs arising out of these orders, such application shall be by way of written submissions and filed and served on all other parties by no later than 14 November 2011 with such submission being endorsed with the fact that it has been so served and any recipient of such an application shall have until 1 December 2011 to file and serve a reply such document also being endorsed with the fact that it has been so served and upon receipt of any such application for costs, it or they shall be determined in chambers.
18.
Pursuant to s 106A of the Family Law Act 1975, a registrar is authorised to sign any document in the name of the husband to give effect to these orders and an affidavit signed by the solicitor for the wife shall be sufficient proof to satisfy the registrar of the necessity for the document to be so signed.
19.
That save as to costs, all applications are otherwise dismissed.
IT IS CERTIFIED
20.
That pursuant to Rule 19.50 of the Family Law Rules 2004, it was reasonable to engage counsel to attend.
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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