Lynton and Lynton - [2010] FamCA 690

FAMILY COURT OF AUSTRALIA

LYNTON & LYNTON

[2010] FamCA 690

FAMILY LAW – PROPERTY SETTLEMENT – adjustment of property interests – where the husband alleges that he owed significant sums of money to various parties – where the wife alleges that the husband has significant sums of money due to him – where the husband has failed to make full and frank disclosure with regards to his financial circumstances – where the wife has significant health issues – adjustment of 5% in favour of the wife upon consideration of s 75(2) factors – asset pool divided 65:35 in favour of the wife

Family Law Act 1975 (Cth) ss 75(2) & 79
Family Law Rules 2004 r 13.01, 13.04 &13.07

Chang & Su (2002) FLC 93-117
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Kannis and Kannis [2002] FamCA 1150
Kennon & Kennon (1997) FLC 92-757
Reichstein & Reichstein [2006] FamCA 1422

APPLICANT:

Ms Lynton

RESPONDENT:

Mr Lynton

FILE NUMBER:

ADC

206

2008

DATE DELIVERED:

9 August 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

7-9 April 2010; 19-22 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Scragg

SOLICITOR FOR THE APPLICANT:

Peter Scragg & Associates

COUNSEL FOR THE RESPONDENT:

Mr Heinrich (7-9 April 2010); Mr Jordan (19-23 April 2010)

SOLICITOR FOR THE RESPONDENT:

City East Legal

Orders

In full and final property settlement it is ordered that:

The wife do retain for her sole use and benefit absolutely all her interest in the property at N in the State of South Australia being the whole of the land described in Certificate of Title Registrable Book Volume … Folio … (“the N property”) SAVE AND EXCEPT that if the husband complies with paragraphs 2 and 3 of this order the wife shall thereafter pay all monies due and payable in relation to the Westpac mortgage secured over the N property and indemnify the husband in relation to the same.
On or before 6 September 2010 the husband shall transfer to the wife all his estate and interest in the property situated at and known as P property, described as Crown Lease Volume … Folio … in Deposited Plan … (on which a dugout residence has been constructed) and all associated rights and entitlements thereto free and unencumbered with vacant possession together with all fixtures and fittings.
On or before 6 September 2010 the husband shall at his cost deliver to the wife at her solicitor’s address Peter Scragg & Associates, the six [6] large framed gemstone pictures, and the gemstone pendant/brooch.
The wife shall retain for her sole use and benefit absolutely the Rolex watch in her possession free from any claim by the husband.
Upon compliance by the husband with paragraphs 2 and 3 hereof the wife do transfer to the husband all her estate and interest in the following properties:
(a)the house property situated at Lot P2, being the land comprised in Certificate of Title Volume … Folio…

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 Lynton and Lynton

Details

AGLC: Lynton and Lynton [2010] FamCA 690
Case: [2010] FamCA 690
Decision Date: 9 August 2010

CaseChat Overview and Summary

This matter concerned property settlement orders made by Dawe J in the Federal Circuit Court of Australia. The dispute involved the division of various real and personal properties between the husband and wife. The orders detailed the specific assets each party was to retain or transfer, contingent upon certain actions being taken by the husband.

The primary legal issues before the court were the terms of the property settlement, including the transfer of interests in several properties, the discharge of mortgages, the delivery of specific personal property, and the indemnification of one party against the debts and liabilities of the other. The court was required to ensure that the orders provided for a full and final settlement of the parties' property interests.

Dawe J's reasoning, as reflected in the orders, involved a detailed allocation of assets and liabilities. The court ordered that the wife retain her interest in the N property, subject to the husband's compliance with certain conditions regarding mortgage payments. The husband was ordered to transfer his interest in the P property to the wife and deliver specific gemstone items. Upon the husband's compliance, the wife was to transfer her interests in several other properties to the husband, with the husband undertaking to secure the release of the wife from associated mortgage liabilities. The husband was also ordered to indemnify the wife against all other past, present, and future debts and liabilities. The orders further provided for the appointment of a Registrar to execute documents in the event of default and adjourned any costs applications.

Orders

Orders of the court

In full and final property settlement it is ordered that:

The wife do retain for her sole use and benefit absolutely all her interest in the property at N in the State of South Australia being the whole of the land described in Certificate of Title Registrable Book Volume … Folio … (“the N property”) SAVE AND EXCEPT that if the husband complies with paragraphs 2 and 3 of this order the wife shall thereafter pay all monies due and payable in relation to the Westpac mortgage secured over the N property and indemnify the husband in relation to the same.

On or before 6 September 2010 the husband shall transfer to the wife all his estate and interest in the property situated at and known as P property, described as Crown Lease Volume … Folio … in Deposited Plan … (on which a dugout residence has been constructed) and all associated rights and entitlements thereto free and unencumbered with vacant possession together with all fixtures and fittings.

On or before 6 September 2010 the husband shall at his cost deliver to the wife at her solicitor’s address Peter Scragg & Associates, the six [6] large framed gemstone pictures, and the gemstone pendant/brooch.

The wife shall retain for her sole use and benefit absolutely the Rolex watch in her possession free from any claim by the husband.

Upon compliance by the husband with paragraphs 2 and 3 hereof the wife do transfer to the husband all her estate and interest in the following properties:

(a) the house property situated at Lot P2, being the land comprised in Certificate of Title Volume … Folio …;

(b) the house property situated at P3, being the land comprised in Certificate of Title Volume … Folio …;

(d) the three-bedroom house situated at M1;

(e) the land known as M2.

PROVIDED THAT on transfer of the properties the husband do all things necessary to secure the release and discharge of the wife from any liability pursuant to the mortgages or any debts in relation to those properties including but not limited to the Westpac mortgage loan secured over P2 and P3 properties.

The husband do indemnify and keep the wife indemnified in respect of all other debts and claims or liabilities of the husband past, present and future including but not limited to any loans or debts payable by the husband or the husband and wife to Mr A, (Mine Business), Mr A (caravan park), Mr S, Mr K and E Lynton.

SAVE AND EXCEPT as herein provided the wife do retain all real and personal property presently in her possession, power or control.

SAVE AND EXCEPT as herein provided the husband do retain all real and personal property presently in his possession, power or control.

In the event that either party shall neglect or refuse to execute any document within seven [7] days of the same being forwarded to him/her by ordinary pre-paid post to the last known address for service then in such an event upon proof by affidavit a Registrar of this Honourable Court is hereby appointed and directed to execute the document on behalf of the party so in default and if in his/her opinion it shall be necessary so to do to settle the same and do all such other acts and things as shall be necessary to give full force and effect to these orders on the basis that the party in default shall pay the other party’s costs of and in relation to such neglect or refusal.

10.

Any costs application by either party is adjourned to a date to be fixed upon the Court receiving any request in writing from either party provided such written request is forthwith served on the other party and is made to the Court before 13 September 2010.

11.

Each party has liberty to apply for consequential orders in relation to enforcement of the within 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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