FAMILY LAW – PROPERTY – s 79 property orders – Financial contributions of the parties – Add-back considerations – Where the wife alleges waste – Whether legal fees ought be added back – s 75(2) considerations
Child Support Assessment Act 1989 (Cth) Family Law Act 1975 (Cth)
Aleksovski v Aleksovski (1996) FLC 92-705 Antmann & Antmann (1980) FLC 90-908 Biltoft (1995) 19 FamLR 82 Browne & Green (1999) FLC 92-873 C v C [1998] FamCA 143 Chorn & Hopkins (2004) FLC 93-204 Coghlan & Coghlan (2005) FLC 93-220 G and G (1984) FLC 91-582 In the Marriage of Biltoft (1995) 19 FamLR 82 In the Marriage of Clauson (1995) FLC 92-595 In the Marriage of Coghlan (2005) 33 FamLR 414 In the Marriage of Ferguson (1978) FLC 90-500 In the Marriage of Ferraro (1993) FLC 92-335 In the Marriage of Lee Steere (1985) FLC 91-626 In the Marriage of Soblusky (1976) FLC 90-124 Kowaliw & Kowaliw (1981) FLC 91-092 Malpass & Mayson (2000) FLC 93-061 Neil v Nott (1984) 68 ALJR 509 Norbis v Norbis (1983) 9 FamLR 385 Norbis v Norbis (1986) 161 CLR 513 Omacini & Omacini (2005) FLC 93-218 Pierce & Pierce (1999) FLC 92-844 Prince & Prince (1984) FLC 91-501 Townsend & Townsend (1995) FLC 92-569 Williams & Williams (2007) FamCA 313
APPLICANT:
Ms Kouper
RESPONDENT:
Mr Kouper
FILE NUMBER:
SYF
2332
of
2006
DATE DELIVERED:
17 November 2009
PLACE DELIVERED:
Brisbane
PLACE HEARD:
Sydney
JUDGMENT OF:
Murphy J
HEARING DATE:
7 – 9 September 2009
REPRESENTATION
COUNSEL FOR THE APPLICANT:
Mr Batey
SOLICITOR FOR THE APPLICANT:
Humphreys & Feather Solicitors
THE RESPONDENT:
Appeared on his own behalf
Orders
As and by way of settlement of property pursuant to s 79 of the Family Law Act 1975 (as amended) it is ordered as follows:
The parties do any or all such things, sign any or all such documents and pay any or all such reasonable fees and charges as are necessary so as to, not later than 42 days from the date of these Orders:
(a)Transfer to the wife’s sole name the real property situated at K;
(b)Contemporaneously with the transfer of the said property at K, to discharge the current mortgage over the property and to substitute a fresh mortgage in the sole name of the wife;
(c)Cause the solicitors for the wife to pay, from the controlled money account held by them in the names of both parties, the sum of $16,434 owing to E Chartered Accountants and, thereafter, the balance thereof to the husband;
(d)Abandon any right, title, claim or interest by either of them in or to any superannuation interests held by the other of them to the intent that any and all such interests vest absolutely in the person in whose name they are held;
(e)Save as is otherwise specifically provided for in these orders, abandon any right, title, claim or interest by either of them in or to…
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.
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Details
AGLC
Kouper & Kouper (No 3) [2009] FamCA 1080
Case
[2009] FamCA 1080
Decision Date
CaseChat Overview and Summary
This matter concerned property settlement orders made by Murphy J pursuant to section 79 of the *Family Law Act 1975* (Cth). The parties had reached a settlement, and the court was formalising these terms.
The court was required to determine the specific orders to be made to give effect to the parties' settlement regarding their property and liabilities. This included the transfer of real property, discharge and substitution of mortgages, payment of outstanding debts, and the division of superannuation interests, chattels, and bank accounts. The orders also addressed the husband's interest in a company and the parties' respective responsibilities for their own liabilities.
Murphy J made orders reflecting the parties' agreement. The wife was to receive the real property at K, with a new mortgage to be substituted in her sole name, and the existing mortgage discharged. A specific sum was to be paid to E Chartered Accountants from a controlled money account, with the balance to be paid to the husband. Both parties were to abandon any claim to the other's superannuation interests, and generally, any property in the other's possession or name, except as otherwise specified. The husband was to abandon his interest in S Pty Ltd. Each party was to be solely responsible for their own liabilities and indemnify the other.
The orders included provisions for a contingency: if the wife was unable to obtain the new mortgage, she was to notify the husband, and both parties were to submit proposed orders to the associate of Justice Murphy. If agreement could not be reached on these proposed orders, the matter would be relisted for hearing before Justice Murphy.
Orders
Orders of the court
As and by way of settlement of property pursuant to s 79 of the Family Law Act 1975 (as amended) it is ordered as follows:
1.
The parties do any or all such things, sign any or all such documents and pay any or all such reasonable fees and charges as are necessary so as to, not later than 42 days from the date of these Orders:
(a) Transfer to the wife’s sole name the real property situated at K;
(b) Contemporaneously with the transfer of the said property at K, to discharge the current mortgage over the property and to substitute a fresh mortgage in the sole name of the wife;
(c) Cause the solicitors for the wife to pay, from the controlled money account held by them in the names of both parties, the sum of $16,434 owing to E Chartered Accountants and, thereafter, the balance thereof to the husband;
(d) Abandon any right, title, claim or interest by either of them in or to any superannuation interests held by the other of them to the intent that any and all such interests vest absolutely in the person in whose name they are held;
(e) Save as is otherwise specifically provided for in these orders, abandon any right, title, claim or interest by either of them in or to any chattels, bank accounts, furniture or other property of any description currently in the name of, or possession of, the other of them to the intent that any and all such property shall vest absolutely in the person in whose name or possession they are respectively held.
2.
The husband shall forthwith abandon any right, title, claim or interest he has, or may have, in S Pty Ltd.
3.
The parties shall each be solely responsible for, and shall indemnify the other in respect of, any and all liabilities in each of their respective names.
4.
In the event that the wife is unable, or unwilling, to obtain the fresh mortgage contemplated at paragraph 1(b) of these orders, she shall forthwith notify the husband in writing of same and, thereafter, each of the parties shall, without delay, submit to the associate to Justice Murphy via e-mail minutes of proposed order (whether by consent or otherwise) giving effect to the findings and overall assessment contained in the reasons of judgment delivered contemporaneously with these Orders.
5.
In the event that the parties are not in agreement about the orders that ought be made in the circumstances contemplated by paragraph 4 of these Orders, the matter shall be heard by Justice Murphy at a date and time to be advised and, if necessary, by video link.