Judd and Cornell-Judd - [2016] FamCA 390

FAMILY COURT OF AUSTRALIA

JUDD & CORNELL-JUDD

[2016] FamCA 390

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Whether it is just and equitable – Identifying the existing interests – Where satisfied there is an outstanding joint liability to the wife’s father – Financial and non-financial contributions – Indirect financial contributions by the wife’s parents – Not satisfied the husband contributed financially by way of an inheritance as he contends– Husband’s conduct resulted in a diminution of the parties’ property pool to payments of debts – Where the wife has the future care and control of the children – Husband has greater income earning capacity and financial resources – Payment of child support uncertain – Husband’s non-disclosure – Greater contributions by the wife and further adjustment in favour of the wife.

Family Law Act 1975 (Cth) s 75, 79

Bevan & Bevan [2013] FamCAFC 116
Jones v Dunkel (1959) 101 CLR 298
Kannis & Kannis [2002] FamCA 1150; (2003) FLC 93-135
Stanford v Stanford (2012) 247 CLR 108
Weir & Weir (1992) FLC 92-338

APPLICANT:

Ms Judd

RESPONDENT:

Mr Cornell-Judd

FILE NUMBER:

PAC

2710

2012

DATE DELIVERED:

19 May 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

11, 12, 13 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Harris

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

RESPONDENT – LITIGANT IN PERSON:

Mr Cornell-Judd

Orders

The asset pool comprised of the monies held in a controlled money account with Matthews Folbigg and the funds held in the joint CBA account number … (‘the CBA joint account’) be distributed as follows:
(a) The sum of $188,230.50 to the wife;
(b) The balance to the husband.
The husband and wife each do all acts and things to authorise upon distribution of funds pursuant to Order 1 the closure of the CBA joint account.
The wife indemnify the husband and keep him indemnified in relation to any and all monies outstanding to Mr B.
The wife pay Mr B $80,000 in repayment of the outstanding loan.
The husband indemnify the wife and keep her indemnified in relation to:
(a)       Any and all liability in his name including any monies owed to C Pty Ltd;
(b)       Any liability attaching to any business in which the husband has an interest.
(c)       Any liability in the sole name of the husband.
Each party shall otherwise retain the assets and liability in their respective names.
The husband is to take all action to close any overseas account in the sole name of the wife or in the wife’s name previously operated by him within 28 days and is to provide proof to the wife’s legal representative within seven (7) days of doing so.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A, to execute such deed or instrument in the name of such party and to do all…

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 Judd and Cornell-Judd

Details

AGLC: Judd and Cornell-Judd [2016] FamCA 390
Case: [2016] FamCA 390
Decision Date: 19 May 2016

CaseChat Overview and Summary

In the matter of Judd and Cornell-Judd, Hannam J considered the division of an asset pool between the parties. The dispute concerned the distribution of monies held in a controlled money account and a joint Commonwealth Bank account.

The court was required to determine how the funds in the identified accounts should be distributed between the husband and wife. Further issues included the closure of the joint account, indemnities for outstanding debts, and the allocation of other assets and liabilities. The court also addressed the husband's obligation to close overseas accounts previously operated by him in the wife's name.

Hannam J ordered that a specific sum of $188,230.50 be paid to the wife from the asset pool, with the remaining balance to be paid to the husband. Both parties were ordered to take steps to close the joint Commonwealth Bank account upon distribution. The wife was ordered to indemnify the husband in relation to monies outstanding to Mr B and to pay Mr B $80,000. Conversely, the husband was ordered to indemnify the wife in relation to various liabilities, including those owed to C Pty Ltd and any business in which the husband has an interest. Each party was to retain assets and liabilities in their respective names, with the husband to close any overseas accounts in the wife's name operated by him within 28 days. The Registrar of the Court was appointed to execute any necessary deeds or instruments if either party refused or neglected to do so. All outstanding applications and cross-applications were dismissed.

Orders

Orders of the court

The asset pool comprised of the monies held in a controlled money account with Matthews Folbigg and the funds held in the joint CBA account number … (‘the CBA joint account’) be distributed as follows:

(a) The sum of $188,230.50 to the wife;

(b) The balance to the husband.

The husband and wife each do all acts and things to authorise upon distribution of funds pursuant to Order 1 the closure of the CBA joint account.

The wife indemnify the husband and keep him indemnified in relation to any and all monies outstanding to Mr B.

The wife pay Mr B $80,000 in repayment of the outstanding loan.

The husband indemnify the wife and keep her indemnified in relation to:

(a) Any and all liability in his name including any monies owed to C Pty Ltd;

(b) Any liability attaching to any business in which the husband has an interest.

Each party shall otherwise retain the assets and liability in their respective names.

The husband is to take all action to close any overseas account in the sole name of the wife or in the wife’s name previously operated by him within 28 days and is to provide proof to the wife’s legal representative within seven (7) days of doing so.

That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.

All outstanding applications and cross-applications are 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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