FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARTELL & ALLARD | [2012] FMCAfam 326 |
| FAMILY LAW – Property Settlement – identification of assets – declaration as to parties’ interests- constructive trust – promissory estoppel– add-backs – inheritance - insurance proceeds - contributions – assessment of s.75(2) factors. |
| Family Law Act 1975, ss.75, 78, 79 |
| Hickey & Hickey (2003) FLC 93-141 Anthony Dickey, Family Law (5th ed, Lawbook Co., 2007) |
| Applicant: | MS MARTELL |
| Respondent: | MR ALLARD |
| File Number: | HBC 96 of 2011 |
| Judgment of: | Baker FM |
| Hearing dates: | 6 & 7 December 2011 |
| Date of Last Submission: | 7 December 2011 |
| Delivered at: | Hobart |
| Delivered on: | 13 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trezise |
| Solicitors for the Applicant: | Dobson, Mitchell & Allport |
| Counsel for the Respondent: | Ms Mooney of Counsel |
| Solicitors for the Respondent: | Tierney Law |
ORDERS
Within 45 days the husband relinquish in favour of the wife, and where necessary transfer to her, any claim or interest he may have to or in:
(a)Property H;
(b)The wife’s Mitsubishi motor vehicle;
(c)Any bank savings, shares or investments in the sole name of the wife or under her control;
(d)The wife’s (omitted) superannuation entitlement.
Contemporaneously, upon compliance with order 1 the wife:
(a)Discharge or refinance the mortgage secured over Property H so as to release the husband from the liability secured by that mortgage; and
(b)Pay to the husband the sum of $77,969.00.
Within 45 days the wife relinquish in favour of the husband, and where necessary transfer to him, any claim or interest she may have to or in:
(a)Her interest in Property S,
(b)The husband’s Mitsubishi motor vehicle;
(c)Any bank savings, shares or investments in the sole name of the husband or under his control;
(d)The husband’s superannuation entitlement with (omitted).
The furniture and household items in the possession of the parties be divided between them by agreement in equal shares or as near to equal shares as is practicable. Failing agreement, the husband and the wife do all things necessary to place the furniture and household items with (omitted) for sale and the net proceeds of sale be divided equally between them.
In the event that the wife is unable to obtain finance to pay the husband the sum referred…
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- Martell and Allard [2012] FMCAfam 326
- Case
- [2012] FMCAfam 326
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the husband should be required to transfer his interest in certain assets to the wife and make financial payments to her, and whether the wife should transfer her interest in other assets to the husband. The court also had to consider the division of household items and the allocation of debts and liabilities between the parties.
In reaching its decision, the court considered the financial circumstances of both parties and the contributions each had made to the marriage. The court determined that the husband should relinquish his interest in specific assets and make financial payments to the wife, while the wife should transfer her interest in other assets to the husband. The court also ordered that the household items be divided equally between the parties, with a mechanism in place for sale and division of proceeds if an agreement could not be reached. The court further ordered that the proceeds from the sale of a property be used to discharge debts and liabilities before being divided between the parties in a specified ratio.
The final orders of the court included specific directives for the relinquishment of interests in property and financial assets, the division of household items, the allocation of debts and liabilities, and the sale of a property with the proceeds to be divided according to the court’s determination.
Orders
Orders of the court
1.
Within 45 days the husband relinquish in favour of the wife, and where necessary transfer to her, any claim or interest he may have to or in:
(a) Property H;
(b) The wife’s Mitsubishi motor vehicle;
(c) Any bank savings, shares or investments in the sole name of the wife or under her control;
(d) The wife’s (omitted) superannuation entitlement.
2.
Contemporaneously, upon compliance with order 1 the wife:
(a) Discharge or refinance the mortgage secured over Property H so as to release the husband from the liability secured by that mortgage; and
(b) Pay to the husband the sum of $77,969.00.
3.
Within 45 days the wife relinquish in favour of the husband, and where necessary transfer to him, any claim or interest she may have to or in:
(a) Her interest in Property S,
(b) The husband’s Mitsubishi motor vehicle;
(c) Any bank savings, shares or investments in the sole name of the husband or under his control;
(d) The husband’s superannuation entitlement with (omitted).
4.
The furniture and household items in the possession of the parties be divided between them by agreement in equal shares or as near to equal shares as is practicable. Failing agreement, the husband and the wife do all things necessary to place the furniture and household items with (omitted) for sale and the net proceeds of sale be divided equally between them.
5.
In the event that the wife is unable to obtain finance to pay the husband the sum referred to order (2);
(i) The property situated at Property H be listed for sale;
(ii) The listing price shall be agreed between the husband and wife and failing agreement as determined by a valuer nominated by the President of the Real Estate Institute of Tasmania.
(iii) The property shall be listed for sale by a private treaty with an agent to be agreed and failing agreement as determined by an agent nominated by the President of the Real Estate Institute of Tasmania.
(iv) That the husband and wife both forthwith do all acts and things and sign all necessary documents to effect the sale of the property.
6.
The proceeds of the sale of the property be distributed as follows:
(i) To discharge the mortgage and any other encumbrances affecting the property;
(ii) to pay all Real Estate agents costs, commissions and expenses of the sale of the property;
(iii) to pay any council and rates outstanding in respect of the property;
(iv) to pay the solicitors’ costs in relation to the property.
(v) The balance be divided between the husband and wife so as to ensure the wife receives a sum equal to 63% of the property pool and the husband receives a sum equal to 37% of the property pool.
7.
Pending completion of the sale of the property the husband shall be solely responsible for the payments of the principal and interest of the mortgage secured over Property H and shall make all payments in relation to it.
8.
Pending completion of the sale of the property the husband will be liable for and indemnify the wife against all payments and liabilities in respect of the property including but not limited to all rates, taxes and outgoings of whatsoever nature and kind.
9.
Unless otherwise specified in this order:
(i) Each party will be solely entitled to the exclusion of the other to all property in the possession of that party as at this date;
(ii) Each party will be solely liable for and indemnify the other party against any liability encumbering any form of property to which that party is entitled pursuant to this Order;
(iii) Each party will remain solely liable for their respective debts.
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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