FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
King & King (No 2) [2023] FedCFamC1F 45
File number(s): MLC 9554 of 2011 Judgment of: BAUMANN J Date of judgment: 8 February 2023 Catchwords: FAMILY LAW – PROPERTY – Assessment of contributions – Where the parties have been litigating for over 11 years – Where scarce evidence has been produced by the parties as to their contributions and financial arrangements during their 29 year relationship – Where the wife contends that two properties should be excluded from the pool as she holds the legal interest under a trust for the benefit of herself and her siblings – Where the Court is not satisfied there is an express trust – Orders made that achieve justice and equity for both parties Legislation: Family Law Act 1975 (Cth)s 75, 79, 81 Cases cited: Best & Best (1993) FLC 92-418
Biltoft & Biltoft (1995) FLC 92-614
Gosper & Gosper (1987) FLC 91-818
Hickey & Hickey (2003) FLC 93-143
King & King [2021] FamCA 603
Stanford & Stanford [2012] HCA 52
Division: Division 1 First Instance Number of paragraphs: 58 Date of hearing: 30 – 31 January and 1 February 2023 Place: Melbourne Solicitor for the Applicant: Ian Robertson Legal Counsel for the Respondent: Mr Rattray Solicitor for the Respondent: Ressan Lawyers ORDERS
MLC 9554 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KING
Applicant
AND: MR M KING
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
8 FEBRUARY 2023
THE COURT ORDERS:
1.That each party retain all superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to each of them respectively to the exclusion of the other and each hereby forego all claims of whatsoever nature to such benefits, entitlements and the like retained by the other.
2.That within ninety (90) days from the date of these Orders, the Respondent pay to the Applicant the sum of four hundred and thirty-six-thousand dollars ($436,000) (“the payment”).
3.That in the event the whole of the payment pursuant to Order 2 hereof has not been made, the parties do all acts and things and sign all such documents as may be required to place the property situate at T Street, Suburb H in the State of Victoria (“the Suburb H property”) on the market for sale on such terms as agreed between the parties, and failing agreement as follows:
(a)Firstly, to pay the commission and legal fees, and any other agreed costs and expenses, of the sale;
(b)Secondly, to discharge the mortgage with Westpac Banking Corporation with dealing number …;
(c)Thirdly, to discharge the caveat with dealing number … (noting that any amount paid in respect of the caveat lodged on behalf of QQ Lawyers (a firm) be debited solely against the Applicant’s share of the proceeds); and
(d)The balance remaining so as to cause the following division of the pool of interests as set out at paragraph 30 of the Reasons for Judgment delivered 8 February 2023:
(i)60%…
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- King & King (No 2) [2023] FedCFamC1F 45
- Case
- [2023] FedCFamC1F 45
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the appropriate division of the property and financial assets between the parties, considering the limited evidence provided by both parties regarding their contributions and financial arrangements during their relationship. The court had to weigh the evidence presented, including the Applicant's claim of an express trust over the Country GG properties, and decide whether it was satisfied that such a trust existed. The court also had to assess the validity of the Applicant's claims for costs and maintenance arrears, and whether these should be included in the division of assets.
In its decision, the court found that there was insufficient evidence to establish an express trust over the Country GG properties. The court ordered that the Respondent pay the Applicant $436,000 within 90 days, which included costs and maintenance arrears. If the payment was not made, the Suburb H property was to be sold, with the net proceeds divided between the parties. The Applicant was to retain the Country GG properties, and the Respondent was to retain other specified properties. The court also ordered that each party retain their respective superannuation and other benefits, and severed any joint tenancy in real or personal estate. The court released the parties' passports and allowed the Applicant to make copies of the orders for implementation purposes.
The court's orders ensured a fair and equitable division of the parties' assets, taking into account the limited evidence and the lengthy nature of the dispute. The court's decision provided clarity and finality to the parties, allowing them to move forward with their lives.
Orders
Orders of the court
MLC 9554 of 2011
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS KING
Applicant
AND:
MR M KING
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
8 FEBRUARY 2023
THE COURT ORDERS:
1. That each party retain all superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to each of them respectively to the exclusion of the other and each hereby forego all claims of whatsoever nature to such benefits, entitlements and the like retained by the other.
2. That within ninety (90) days from the date of these Orders, the Respondent pay to the Applicant the sum of four hundred and thirty-six-thousand dollars ($436,000) (“the payment”).
3. That in the event the whole of the payment pursuant to Order 2 hereof has not been made, the parties do all acts and things and sign all such documents as may be required to place the property situate at T Street, Suburb H in the State of Victoria (“the Suburb H property”) on the market for sale on such terms as agreed between the parties, and failing agreement as follows:
(a) Firstly, to pay the commission and legal fees, and any other agreed costs and expenses, of the sale;
(b) Secondly, to discharge the mortgage with Westpac Banking Corporation with dealing number …;
(c) Thirdly, to discharge the caveat with dealing number … (noting that any amount paid in respect of the caveat lodged on behalf of QQ Lawyers (a firm) be debited solely against the Applicant’s share of the proceeds); and
(d) The balance remaining so as to cause the following division of the pool of interests as set out at paragraph 30 of the Reasons for Judgment delivered 8 February 2023:
(i) 60% to the Applicant; and
(ii) 40% to the Respondent.
4. That until settlement, the Respondent be prohibited from drawing down/extending or re-mortgaging the Westpac mortgage currently registered (with dealing number …) against the Suburb H property.
5. That for the purpose of the sale of the Suburb H property:
(a) RR Pty Ltd is to be appointed as selling agent;
(b) the parties appoint ZZ Lawyers to act on their behalf in relation to the conveyance of the Suburb H property; and
(c) the Applicant have the sole conduct of the sale and keeps the Respondent informed as to the progress of the sale; and
(d) The Respondent to provide vacant possession seven (7) days prior to the settlement of the sale.
The Country GG properties
6. That the Applicant retain the real properties known as property SS Street City TT, Country GG and property UU Street City TT, Country GG.
7. That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any moneys under these or any subsequent orders:
(a) the Applicant will retain the funds in her sole bank accounts;
(b) the Respondent will retain the funds in his sole bank accounts;
(c) each party be solely entitled to the exclusion of the other property (including choses-in-action) in the possession or name of such party as at the date of these Orders save as provided for in these Orders;
(d) all insurance policies are to become the sole property of the owner names therein;
(e) each party be solely liable for the indemnify the other against any liability encumbering any items of property to which that party is entitled pursuant to these Orders and/or any liability in their respective names including however not limited to credit card debts and the personal loans; and
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
8. That if Order 2 is complied with then the payment of $436,000 shall be deemed to include:
(a) an allowance for the costs payable by the Respondent to the Applicant pursuant to earlier costs orders in her favour; and
(b) a payment for arrears of spouse maintenance pursuant to the Order of the Court made 29 November 2011.
9. That if it is required to sell the property pursuant to Order 3 hereof, then in addition to the payment to be made to the Applicant under Order 3(d)(i), the Respondent shall pay to the Applicant from his share of the nett proceeds of sale:
(a) a payment of $26,397 in respect of earlier costs orders in favour of the Applicant; and
(b) a payment of $74,100 in respect of arrears of spouse maintenance.
10. That upon the payments made to the Applicant under either Order 8 or Order 9 hereof, the spouse maintenance Order made 29 November 2011 shall be discharged.
11. That the parties be at liberty to apply in relation to the sale of the Suburb H property.
12. That the Applicant be at liberty to make a copy of these Orders available as reasonably required to assist in the implementation of these Orders.
13. That the Court forthwith release each party’s passport/s that are currently held by the Court.
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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