Juno and Juno - [2011] FamCA 582

FAMILY COURT OF AUSTRALIA

JUNO & JUNO

[2011] FamCA 582

FAMILY LAW – PROPERTY – Interim property settlement

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Biltoft & Biltoft (1995) FLC 92-61
Black & Kellner (1992) FLC 92-287
Crapp & Crapp (1979) FLC 90-615
Gabel & Yardley (2008) FLC 93-386
Kendling & Kendling (2008) 39 FamLR 404
Kowaliw & Kowaliw (1981) FLC 91-092
Paris King Investments Pty Ltd & Rayhill [2006] NSWSC 578
Rosati & Rosati (1998) FLC 92-804
Strahan & Strahan (Interim Property Orders) (2009) 42 FamLR 203
Townsend v Townsend [2006] NSWCA 352

APPLICANT:

Ms Juno

RESPONDENT:

Mr Juno

FILE NUMBER:

BRC

3550

2010

DATE DELIVERED:

30 June 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

27 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr C Carrigan

SOLICITOR FOR THE APPLICANT:

Herbert Greer

COUNSEL FOR THE RESPONDENT:

Mr T Kirk SC

SOLICITOR FOR THE RESPONDENT:

MacDonnells Law

Orders

IT IS ORDERED THAT:

Pursuant to s 80(1)(h) of the Family Law Act 1975 (Cth) (“the Act”) it is ordered until further order that, as and by way of interim property settlement pursuant to s 79 of the Act:
a.Within 14 days of the date of these orders, the wife and the husband shall do all such things and sign all such documents as might be necessary so as to:
i.Cause the entity B Pty Ltd to loan to the wife the sum of $500,000 with such loan to be paid to a personal bank account as nominated by the wife for the wife’s sole use and benefit;
ii.Transfer all right title and interest in and to the real property known in these proceedings as the C Unit into the sole name of the husband.
b.Any questions as to how the said payment or said transfer, or any taxation liabilities arising from or associated with the said payment or transfer, should be seen within an assessment of a just and equitable settlement of property pursuant to s 79 of the Act, be reserved to the trial judge.
c.Any applications for costs by either party of and incidental to this application, be reserved to the trial judge.

IT IS NOTED that publication of this judgment under the pseudonym Juno & Juno is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3550 of 2010

Ms Juno

Applicant

And

Mr Juno

Respondent

REASONS FOR JUDGMENT

The parties to this interim application are involved in litigation by which each seeks an order for settlement of property and other orders. The trial of those respective applications is due to take place before me in less than a month, commencing 29 August 2011.
On 18 June 2010 it was ordered by consent of the parties relevantly as follows:
(1)That within 14 days of the date of the making of these orders the wife and the husband do all things necessary and sign all documents…

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 Juno and Juno

Details

AGLC: Juno and Juno [2011] FamCA 582
Case: [2011] FamCA 582
Decision Date: 30 June 2011

CaseChat Overview and Summary

In the matter of *Juno and Juno*, heard before Murphy J, the dispute concerned interim property settlement orders sought by the wife. The orders sought were pursuant to sections 79 and 80(1)(h) of the *Family Law Act 1975* (Cth).

The primary legal issue before the court was whether to grant interim orders for property settlement, specifically concerning a loan from a company, B Pty Ltd, to the wife and the transfer of a unit into the husband's sole name. The court was required to determine if these interim measures were just and equitable pending a final assessment of the property settlement.

Murphy J ordered that, by way of interim property settlement, B Pty Ltd was to loan the wife $500,000, payable to her personal bank account for her sole use and benefit. Concurrently, the husband was to transfer all his right, title, and interest in the real property known as the C Unit into his sole name. The court reserved questions regarding the tax liabilities arising from these transactions, as well as any applications for costs, to the trial judge.

Orders

Orders of the court

IT IS ORDERED THAT:

Pursuant to s 80(1)(h) of the Family Law Act 1975 (Cth) (“the Act”) it is ordered until further order that, as and by way of interim property settlement pursuant to s 79 of the Act:

a. Within 14 days of the date of these orders, the wife and the husband shall do all such things and sign all such documents as might be necessary so as to:

i. Cause the entity B Pty Ltd to loan to the wife the sum of $500,000 with such loan to be paid to a personal bank account as nominated by the wife for the wife’s sole use and benefit;

ii. Transfer all right title and interest in and to the real property known in these proceedings as the C Unit into the sole name of the husband.

b. Any questions as to how the said payment or said transfer, or any taxation liabilities arising from or associated with the said payment or transfer, should be seen within an assessment of a just and equitable settlement of property pursuant to s 79 of the Act, be reserved to the trial judge.

c. Any applications for costs by either party of and incidental to this application, be reserved to the trial judge.

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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