Maider & Carrigan - [2009] FamCA 483

FAMILY COURT OF AUSTRALIA

MAIDER & CARRIGAN

[2009] FamCA 483

FAMILY LAW – PROPERTY SETTLEMENT

APPLICANT:

Ms Maider

RESPONDENT:

Mr Carrigan

FILE NUMBER:

ADF

1515

2006

DATE DELIVERED:

29 May 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

BURR J

HEARING DATE:

21 October 2008, 29, 30 January 2009, 2, 3, 4 & 11 February 2009, 27 & 28 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Adey Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bowler

SOLICITOR FOR THE RESPONDENT:

Martin Robinson

Orders

That in full and final settlement of any claim that either party may have against the other by way of settlement of property or variation of settlement of property:-
(a)    The mother do pay to the father within three calendar months of the date hereof the sum of NINETY THOUSAND DOLLARS [$90,000.00].
(b)    Contemporaneously with the payment of that amount to the father by the mother pursuant to paragraph 1(a) of these Orders, the father do and he is hereby directed to transfer to the mother forthwith at the mother’s expense in all respects all that his right, title, estate and interest both at law and in equity in the property situated at G in the State of South Australia (“the [G] property”) and in the Holden Vectra motor vehicle registration number …;
(c)    Each party do all such acts and things and sign all such documents as are necessary to give effect to the terms of these Orders PROVIDED THAT if the parties or either of them shall refuse or neglect to execute any transfer or other documentation pursuant to the terms of these Orders within seven [7] days after the same shall have been tendered to him or her by or on behalf of the other party for that purpose then and in such case a Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.
(d)    The mother do hereafter duly pay and discharge to the exoneration of the father all mortgage instalments, rates, taxes and other outgoings in relation to the G property and do indemnify the father against any liability in relation to any such payments.
(e)    The father’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the mother:-
(i)the mother’s personal effects, clothing and jewellery;
(ii)the furniture and household effects in the mother’s possession including the Queen size wooden bed in D’s bedroom SAVE AND EXCEPT for the items to be returned to the father pursuant to paragraph 1(f)(iii) of these Orders;
(iii)the items and jewellery (wedding gifts)…

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 Maider & Carrigan

Details

AGLC: Maider & Carrigan [2009] FamCA 483
Case: [2009] FamCA 483
Decision Date: 19 May 2009

CaseChat Overview and Summary

In *Maider & Carrigan*, Burr J of the Family Court of Australia was required to make orders in full and final settlement of property and variation of property settlement claims between the parties. The dispute concerned the division of various assets and liabilities, including real estate, motor vehicles, superannuation, bank accounts, and personal effects, as well as the discharge of debts and future financial obligations.

The court was tasked with determining how the parties' respective estates and interests in a range of specified assets and liabilities should be vested and discharged. This included the allocation of the marital home, a motor vehicle, personal belongings, and various financial entitlements and debts, as well as the payment of a sum of money from one party to the other. The court also had to consider the implications of default in payment and the provision of undertakings regarding child support obligations.

Burr J applied principles of property settlement to achieve a final division of the parties' financial resources. The orders reflect a comprehensive distribution of assets and liabilities, with specific directions for the transfer of property, payment of a lump sum, and the discharge of ongoing financial responsibilities. The court also appointed a Registrar to execute documents if a party refused or neglected to do so, ensuring the finality of the settlement. Provisions were made for the sale of the G property in the event of default in payment, with proceeds to be applied first to the outstanding sum owed to the father.

The court ordered that the mother pay the father $90,000 within three months, and contemporaneously, the father transfer his interest in the G property and a Holden Vectra to the mother. The mother was directed to pay all outgoings for the G property and indemnify the father. Various personal effects, furniture, investments, superannuation, and land parcels were vested in either the mother or the father. Each party was ordered to discharge their own future debts and liabilities, with an injunction restraining them from pledging the other's credit. The father was also ordered to provide written evidence of undertakings to his employer and bank regarding the payment of child support. All other applications were dismissed.

Orders

Orders of the court

That in full and final settlement of any claim that either party may have against the other by way of settlement of property or variation of settlement of property:-

(a) The mother do pay to the father within three calendar months of the date hereof the sum of NINETY THOUSAND DOLLARS [$90,000.00].

(b) Contemporaneously with the payment of that amount to the father by the mother pursuant to paragraph 1(a) of these Orders, the father do and he is hereby directed to transfer to the mother forthwith at the mother’s expense in all respects all that his right, title, estate and interest both at law and in equity in the property situated at G in the State of South Australia (“the [G] property”) and in the Holden Vectra motor vehicle registration number …;

(c) Each party do all such acts and things and sign all such documents as are necessary to give effect to the terms of these Orders PROVIDED THAT if the parties or either of them shall refuse or neglect to execute any transfer or other documentation pursuant to the terms of these Orders within seven [7] days after the same shall have been tendered to him or her by or on behalf of the other party for that purpose then and in such case a Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.

(d) The mother do hereafter duly pay and discharge to the exoneration of the father all mortgage instalments, rates, taxes and other outgoings in relation to the G property and do indemnify the father against any liability in relation to any such payments.

(e) The father’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the mother:-

(i) the mother’s personal effects, clothing and jewellery;

(ii) the furniture and household effects in the mother’s possession including the Queen size wooden bed in D’s bedroom SAVE AND EXCEPT for the items to be returned to the father pursuant to paragraph 1(f)(iii) of these Orders;

(iii) the items and jewellery (wedding gifts) obtained by the mother prior to marriage as identified on page 3 of Exhibit 15;

(iv) the aforesaid Holden Vectra motor vehicle;

(v) the mother’s ING Investment;

(vi) the mother’s Uni Superannuation benefits and entitlements;

(vii) plot number 583, Street number …, … Town, …, Pakistan (“plot 583”);

(f) The mother’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the father:-

(i) the father’s personal effects, clothing and jewellery;

(ii) the furniture and household effects in the father’s possession;

(iii) the furniture and household effects to be returned by the mother to the father from the G property at the father’s expense within twenty-eight [28] days of a written request for same by the father, namely:-

A. 11 Fin electric column oil heater (main bedroom);

B. 5 tier rosewood bookshelves with 2 doors to bottom section (entrance);

C. pair of Jamo satellite speakers with subwoofer and a DL4 celestial speaker (study);

D. 7 piece rosewood dining suite made in Pakistan comprising 6 tub back chairs and a rectangular pedestal table with inlaid floral design (dining room);

E. corner 4 tier rosewood shelve unit with 2 doors to the bottom section (dining room);

F. round hardwood occasional table on tripod pedestal base (dining room);

G. rosewood magazine rack with inlaid floral design (dining room);

H. rosewood coffee table with 3 drawers with inlaid floral design (lounge room);

I. pair of rosewood CD cabinets with single glass door and brass handles (lounge room);

J. Kenwood KR-V999D amplifier (lounge room);

K. small floor rug (lounge room);

L. nest of 4 rosewood occasional tables with inlaid floral design (lounge room);

M. 4 drawer rosewood bow front chest with inlaid floral design (lounge room);

N. Bailey aluminium extension ladder (outside);

O. metal single drawer tool bench (storage area).

(iv) the items identified on page 2 of Exhibit 15 as having been obtained by the father prior to marriage SAVE AND EXCEPT for the Queen size wooden bed in D’s bedroom to be retained by the mother, and that such items be returned by the mother to the father at the father’s expense within twenty-eight [28] days of a written request for same by the father;

(v) the jewellery (wedding gifts) identified on page 2 of Exhibit 15 as having been obtained prior to marriage from the father’s parents, and that such items be returned by the mother to the father at the father’s expense within twenty-eight [28] days of a written request for same by the father;

(vi) the father’s IA Company termination payment;

(vii) the father’s MCB Bank balance;

(viii) the proceeds of sale of the father’s Suzuki Cultus motor vehicle;

(ix) the father’s Virgin Superannuation benefits and entitlements;

(x) plot number 539, Street number …, …, …, Pakistan (“plot 539”);

(g) Henceforth each party shall discharge without calling upon the other to contribute thereto the debts and liabilities contracted by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.

(h) If the mother do make default in payment of the sum or any part thereof mentioned in paragraph 1(a) of these Orders then and in such event the mother do pay to the father interest thereon at the rate prescribed by the Family Law Rules 2004 as amended AND FURTHER that the G property be sold and the net proceeds of sale applied in the manner following:-

A. To the father the sum of $90,000.00 or such balance as then remains due and outstanding together with interest thereon at the aforesaid rate calculated from the said due date for payment to the date of payment to the father of the said sum or such balance as at that time shall remain due and outstanding to the father; and

B. To the mother the balance thereof.

That within twenty-eight [28] days of the date hereof the father do provide to the mother written evidence that he has provided to his employer and his bank the undertakings given by him as contained in paragraphs (b) and (c) of Exhibit 11, namely:-

“(b) I will provide my Employer with an irrevocable authority to pay my entire salary to HSBC Bank or such other bank with whom I may bank from time to time;

(c) I will provide the HSBC Bank or such other bank with whom I may bank from time to time an irrevocable authority to automatically deduct and pay to the CSA the full amount of my child support obligations in accordance with assessments issued from time to time by that agency;”

That all applications be otherwise dismissed and removed from the pending list.

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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