Loi and Danh - [2018] FCCA 3660

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOI & DANH

[2018] FCCA 3660

Catchwords:
FAMILY LAW – Property – where the wife left Australia in 2008 and flew to the Country A with the parties’ then 19 month-old son – where there has been no contact between the husband and the wife since then – where the husband now seeks a property settlement – contributions and s.75(2) factors – issues of credit.

Legislation:

Family Law Act 1975, ss.75(2), 75(2)(o), 79(2), 79(4)

Cases cited:

Stanford v Stanford (2012) FLC 93-495
Bevan & Bevan [2013] FamCAFC 116

Applicant:

MR LOI

Respondent:

MS DANH

File Number:

DGC 1274 of 2017

Judgment of:

Judge Small

Hearing dates:

29 & 30 November 2018

Date of Last Submission:

30 November 2018

Delivered at:

Dandenong

Delivered on:

30 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Carne

Solicitors for the Applicant:

Wheeler Family Law

Counsel for the Respondent:

In Person

Solicitors for the Respondent:

None

ORDERS

Within 90 days of the date of these Orders, the Husband pay into an account nominated by the Wife the sum of $50,000.00 AUD (“the payment”).
Contemporaneously with the payment:
(a)the Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situate at and known as Property F VIC being the whole of the land more particularly described in certificate of title volume …folio … (“the real property”);
(b)the Husband indemnify the Wife against all payments and liability pursuant to the mortgage registered No. …to the Commonwealth Bank of Australia (“the mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind; and
(c)the Husband discharge the mortgage against the real property and/or refinance it into his sole name.
In the event the Wife refuses or neglects to comply with any provision of this Order:
(a)a Registrar of the Federal Circuit Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the Wife and do all things and acts necessary to give validity and operation to these Orders; and
(b)the Wife is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this Order and providing his damages; and
for the purpose of this Order, an affidavit setting out the Wife’s failure to comply with the Orders shall be sufficient evidence of neglect and default.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other party;
(c)insurance policies remain the…

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 Loi and Danh

Details

AGLC: Loi and Danh [2018] FCCA 3660
Case: [2018] FCCA 3660
Decision Date: 30 November 2018

CaseChat Overview and Summary

This matter concerned orders made by Judge Small in the Federal Circuit Court of Australia between a husband and wife. The dispute revolved around the division of property and the transfer of interests in real estate.

The court was required to determine the terms of property settlement, including the payment of a sum of money, the transfer of a specific real property, and the discharge of a mortgage. Further issues included provisions for enforcement of the orders and the respective entitlements of each party to other property and liabilities.

Judge Small ordered that the Husband pay $50,000 to the Wife within 90 days. Contemporaneously, the Wife was to transfer her interest in a property located in Victoria to the Husband, at his expense. The Husband was also ordered to indemnify the Wife against all payments and liabilities related to the mortgage on that property and to discharge or refinance the mortgage into his sole name. The orders also stipulated that if the Wife failed to comply, a Registrar could execute documents on her behalf, and she would be liable for enforcement costs. Each party was to retain sole entitlement to other property in their possession, forgo claims to each other's superannuation, and be solely liable for liabilities encumbering property they received. Any joint tenancies were expressly severed.

Orders

Orders of the court

Within 90 days of the date of these Orders, the Husband pay into an account nominated by the Wife the sum of $50,000.00 AUD (“the payment”).

Contemporaneously with the payment:

(a) the Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situate at and known as Property F VIC being the whole of the land more particularly described in certificate of title volume …folio … (“the real property”);

(b) the Husband indemnify the Wife against all payments and liability pursuant to the mortgage registered No. …to the Commonwealth Bank of Australia (“the mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind; and

In the event the Wife refuses or neglects to comply with any provision of this Order:

(a) a Registrar of the Federal Circuit Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the Wife and do all things and acts necessary to give validity and operation to these Orders; and

(b) the Wife is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this Order and providing his damages; and

for the purpose of this Order, an affidavit setting out the Wife’s failure to comply with the Orders shall be sufficient evidence of neglect and default.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;

(b) each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other party;

(d) each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

The Husband shall have liberty to apply in relation to the operation of the Orders.

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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