Layman and Louise - [2007] FamCA 27

FAMILY COURT OF AUSTRALIA

LIMMEN & LIMMEN

[2007] FamCA 27

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – significant bequest by husband’s mother – significant gifts from wife’s brother – how they are treated – issues of credit of parties.

Chang v Su (2002) FLC 93-117.
Essex & Essex (No. 2) [2007] FamCA 639 (unreported)
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
L & L [2004] FamCA 1010 (Full Court - unreported)
Pellegrino & Pellegrino (1997) FLC 92-789
Perrett & Perrett (1990) FLC 92-10

APPLICANT:

MRS LIMMEN

RESPONDENT:

MR LIMMEN

FILE NUMBER:

HBF

1620

2004

DATE DELIVERED:

16 January 2008

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

12, 13 & 14 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Michael Trezise
SOLICITOR FOR THE APPLICANT:	Dobson Mitchell & Allport
COUNSEL FOR THE RESPONDENT:	Mr Tony Fitzgerald
SOLICITOR FOR THE RESPONDENT:	Fitzgerald & Browne

Orders

The husband do all acts and sign all documents and do all acts to transfer to the wife the whole of his right, title and interest in property situate and known as N in Tasmania, together with Holden Commodore motor vehicle registration no. … and the heavy vehicle. Such documents to be signed and returned to the wife within twenty eight (28) days of being forwarded to the husband and to the husband’s solicitors.
The husband pay to the wife the sum of $528.00, within twenty eight days from that date of these orders.
Upon payment of the sum referred to in order 2 above, the wife do all acts and sign all documents and do all acts to assign to the husband the whole of her right, title and interest in the following:-
(a)monies held in joint names of the parties with the C Bank, with an agreed value of $143,000.00, or the balance of that sum if the husband directs, authorises and gives effect to payment to the wife of the sum provided in Order 2 from such account ;
(b)funds held in the husband’s name in the F Bank;
(c)S Bank Brokerage (account …2);
(d)S Bank Brokerage (account …1);
(e)S Bank Brokerage IRA (account …3);
(f)B Bank Brokerage (account …1);
(g)B Bank IRA account (account …2); and
(h)H Bank account in the name of the husband.
IT IS DECLARED
The funds held in the accounts set out in order 3 above are, as against the wife, the property of the husband.
IT IS FURTHER ORDERED
The wife indemnify the husband in relation to the Mastercard liability of about $4,400.00 and the Visa card liability of about $6,200.00
The husband indemnify the wife in relation to the taxation liability in America of about $8,793.00.
IT IS FURTHER DECLARED
The husband shall be entitled, as against the wife, to the Ford F-150 and Isuzu Rodeo motor vehicles and the household contents and chattels in the husband’s possession.
IT IS FURTHER ORDERED
Each party shall otherwise be entitled against the other…

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 Layman and Louise

Details

AGLC: Layman and Louise [2007] FamCA 27
Case: [2007] FamCA 27
Decision Date: 1 February 2007

CaseChat Overview and Summary

This matter concerned property adjustment proceedings between a husband and wife, Benjamin J presiding. The parties, both citizens of the United States, married in 1984 and separated in April 2002, with the marriage being dissolved in May 2005. The proceedings were commenced in the Family Court in August 2004. The parties had moved to Tasmania in 2001, purchasing a property there, after which the wife continued to reside in Tasmania while the husband returned to the United States. The wife had worked in welfare services until 1989, and the husband was a retired civil servant. There were no children of the marriage.

The court was required to determine the identity and value of the parties' property and liabilities, assess their respective contributions to the marriage, and consider other relevant factors, including the financial circumstances of each party, to make a just and equitable distribution of their assets. Specific issues included the treatment of substantial stock market gifts received from the wife's brother and bequests received by the husband, and how these should be credited as contributions or otherwise dealt with.

Benjamin J applied the four-step approach to property matters under s 79 of the Family Law Act 1975, which involves identifying and valuing property, assessing contributions, considering other relevant factors including s 75(2) matters, and finally resolving what orders are just and equitable. The court considered the whole of the parties' property, however and whenever acquired, and emphasised the obligation of full and frank financial disclosure. The court also noted that s 79 requires consideration of all property, even if parties only seek an alteration of interest in some of it.

The court ordered the husband to transfer his interest in the Tasmanian property and two vehicles to the wife, and to pay her a sum of $528.00. Upon this payment, the wife was to assign her interest in various bank accounts and brokerage accounts to the husband. The court declared that the funds in these accounts were the property of the husband as against the wife. The wife was ordered to indemnify the husband for certain credit card liabilities, and the husband was ordered to indemnify the wife for a taxation liability in America. Each party was to retain other property in their possession or control, and the matter was removed from the list of cases requiring determination.

Orders

Orders of the court

The husband do all acts and sign all documents and do all acts to transfer to the wife the whole of his right, title and interest in property situate and known as N in Tasmania, together with Holden Commodore motor vehicle registration no. … and the heavy vehicle. Such documents to be signed and returned to the wife within twenty eight (28) days of being forwarded to the husband and to the husband’s solicitors.

The husband pay to the wife the sum of $528.00, within twenty eight days from that date of these orders.

Upon payment of the sum referred to in order 2 above, the wife do all acts and sign all documents and do all acts to assign to the husband the whole of her right, title and interest in the following:-

(a) monies held in joint names of the parties with the C Bank, with an agreed value of $143,000.00, or the balance of that sum if the husband directs, authorises and gives effect to payment to the wife of the sum provided in Order 2 from such account ;

(b) funds held in the husband’s name in the F Bank;

(d) S Bank Brokerage (account …1);

(e) S Bank Brokerage IRA (account …3);

(f) B Bank Brokerage (account …1);

(g) B Bank IRA account (account …2); and

(h) H Bank account in the name of the husband.

IT IS DECLARED

The funds held in the accounts set out in order 3 above are, as against the wife, the property of the husband.

IT IS FURTHER ORDERED

The wife indemnify the husband in relation to the Mastercard liability of about $4,400.00 and the Visa card liability of about $6,200.00

The husband indemnify the wife in relation to the taxation liability in America of about $8,793.00.

IT IS FURTHER DECLARED

The husband shall be entitled, as against the wife, to the Ford F-150 and Isuzu Rodeo motor vehicles and the household contents and chattels in the husband’s possession.

IT IS FURTHER ORDERED

Each party shall otherwise be entitled against the other to property (whether real or personal) in their possession or control (except as otherwise dealt with by these orders).

This matter be removed from the list of cases requiring determination.

10.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

11.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Background

Background to the litigation

Unless specified as otherwise, amounts set out in these reasons are Australian dollars.Background The parties married and commenced cohabitation in the United States of America in March 1984. At the date of hearing the wife is aged 66 and the husband is aged 61. The parties separated on 10 April 2002 and the marriage was dissolved on 9 May 2005. Proceedings were commenced in the Family Court on 26 August 2004 and were heard on 12, 13 and 14 December 2007. The parties moved to Tasmania in March/April 2001 and soon after found the property at N. They agreed to purchase that property and the settlement of the purchase was completed in November/December 2001. The parties subsequently separated in April 2002. The wife continued to reside in Tasmania and the husband has returned to and resides in the United States of America. Both parties are citizens of the United States of America. When the parties met the wife was working in welfare services. She remained in that employment until about 1989. The husband had been a civil servant and retired in December 1999. He had been employed for twenty five years with the State in America There are no children of the marriage nor have either of the parties have children of any other relationship. Neither party had been previously married although the husband had been in a previous relationship with a person whom I will refer to as “SA”. This relationship ended in about 1980. There is no issue that in about 1992 the wife’s brother commenced giving assets to the parties by way of stock market shares. It is not in issue that the total value of the stock given to the parties by the wife’s brother, between 1992 and the date of separation, amounted to about $200,000.00 (USD[2]). [2] United States of American dollars There is an issue as to whether that ought to be credited as a contribution by or on behalf of the wife or whether the gift ought to be treated as an equal contribution. During the course of the marriage the husband received two bequests, one from his maternal grandmother for about $50,000.00 (USD) and the other, he asserts, from his mother of about $482,564.00 (USD). There is no issue as to the bequests; however there are issues as to the amounts, how they were applied and how they ought to be dealt with.The principles to apply The Full Court in Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) [(2003) FLC 93-143] at 78,386, reiterated the preferred approach to the exercise of discretion in property matters, pursuant to s 79:39. “The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79 (4) (a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79 (4) (d), (e), (f) and (g), (“the other factors”) including, because of s.79 (4) (e), the matters referred to in s.75 (2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.40.Section 79, unlike s.78, requires the Court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property. As a consequence of the first step in the preferred approach to the determination of the s.79 proceedings, each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto: Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Weir and Weir (1993) FLC 92-338 and Tate v Tate (2000) FLC 93-047.”

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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