Mena and Mena & Anor - [2012] FamCA 1046

FAMILY COURT OF AUSTRALIA

MENA & MENA AND ANOR

[2012] FamCA 1046

FAMILY LAW – PROPERTY – Matrimonial pool of assets – where the unsecured loans of the husband owing to his mother were excluded from the pool of assets on the basis that they were unlikely to be enforced and unreasonably incurred – where the Court ordered that the husband be solely responsible for the repayment of any loans existing between himself and his mother – where the Court made an order requiring the husband’s mother to remove a caveat over the former matrimonial home – where the husband’s mother had intervened as a party – where the wife had no prior knowledge of the loans – where the husband’s mother had never sought to enforce the loans prior to the breakdown of the marriage – where the interest payable on the personal loans was unreasonable and punitive – where the husband had never contributed any money towards the repayment of the loans.

FAMILY LAW – PROPERTY – Adjustment of matrimonial property – where the assets of the parties were divided 45 per cent to the wife and 55 per cent to the husband – where the husband’s initial contributions outweighed those of the mother – where an adjustment of 15 per cent was made to the wife as the husband had a greater earning capacity and the wife undertook the majority of the care for the parties’ children – where there was a five percent adjustment for the husband for the substantial financial contributions of the paternal family to the acquisition of matrimonial property.

Family Law Act 1975 (Cth) ss 79, 75 and 90AE

In the Marriage of Biltoft (1995) FLC 92-614
In the Marriage of Petersens (1981) FLC 91-095

APPLICANT:

Mr Mena

RESPONDENT:

Ms Mena

INTERVENOR:

Mrs Mena Snr

FILE NUMBER:

(P)NCC

2997

2010

DATE DELIVERED:

12 November 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Cleary

HEARING DATES:

18, 19, 20 June & 30 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Davies

SOLICITOR FOR THE APPLICANT:

MRM Lawyers

COUNSEL FOR THE RESPONDENT:

Mr I Duane

SOLICITOR FOR THE RESPONDENT:

Boyd Olsen Lawyers

COUNSEL FOR THE INTERVENER:

Mr G Levick

SOLICITOR FOR THE INTERVENER:

Burgess Lawyers

Orders

That Orders 2, 3 4 of the Application in a Case filed 28 March 2011 by the Intervener is dismissed.
That the Intervener, Mrs Mena Snr, do all acts and things and sign all documents necessary to withdraw Caveat number … being a Caveat naming her as the Caveator and in respect of the interest of the husband and registered on the title to the property situate and known as R Street, W in the State of New South Wales being the land in Certificate of Title Folio Identifier …63 (“the home”).
That on or before 60 days from the date of Orders the wife shall pay to the husband the sum of NINETY-SEVEN THOUSAND NINE HUNDRED AND SIXTY DOLLARS ($97,960).
That simultaneously with…

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.

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Details

AGLC: MENA & MENA AND ANOR [2012] FamCA 1046
Case: [2012] FamCA 1046
Decision Date: 12 November 2012

CaseChat Overview and Summary

The case of *Mena and Mena & Anor* involved a dispute over the division of matrimonial assets between a husband and wife, with the husband's mother intervening as a party. The central issues revolved around the treatment of unsecured loans the husband owed to his mother, the removal of a caveat placed by the mother on the former matrimonial home, and the ultimate distribution of the parties' property. The wife claimed no prior knowledge of the loans, which were characterised by unreasonable and punitive interest rates, and had never been sought to be enforced by the mother prior to the marital breakdown.

The court was required to determine whether the husband's alleged loans from his mother should be included in the matrimonial pool of assets, and if so, how they should be treated. Furthermore, the court had to consider the validity and effect of the caveat lodged by the husband's mother over the former matrimonial home, and the appropriate adjustment of the property interests between the husband and wife, taking into account their respective contributions and future earning capacities. The court also needed to address the husband's responsibility for any outstanding liabilities and the indemnification of each party against liabilities arising from property transferred to them.

Justice Cleary reasoned that the loans from the husband's mother were unlikely to be enforced and had been unreasonably incurred, leading to their exclusion from the matrimonial pool. The court ordered that the husband be solely responsible for any such indebtedness to his mother. The court also directed the husband's mother to withdraw her caveat from the former matrimonial home. In terms of property division, the court initially allocated 45 per cent to the wife and 55 per cent to the husband, but made a 15 per cent adjustment in favour of the wife due to her greater role in childcare and the husband's superior earning capacity. A further 5 per cent adjustment was made in favour of the husband to reflect substantial financial contributions from his family to the acquisition of matrimonial property.

The final orders reflected these determinations, including the dismissal of the intervener's application, the removal of the caveat, and specific directions for the payment of sums between the parties and the transfer of various properties and shareholdings. The court also made provisions for default in compliance with the orders, appointing a Registrar to execute documents if necessary, and clarified the sole legal responsibility of the husband for any indebtedness to his mother. Each party was also ordered to indemnify the other against liabilities arising from property transferred to them.

Orders

Orders of the court

That Orders 2, 3 4 of the Application in a Case filed 28 March 2011 by the Intervener is dismissed.

That the Intervener, Mrs Mena Snr, do all acts and things and sign all documents necessary to withdraw Caveat number … being a Caveat naming her as the Caveator and in respect of the interest of the husband and registered on the title to the property situate and known as R Street, W in the State of New South Wales being the land in Certificate of Title Folio Identifier …63 (“the home”).

That on or before 60 days from the date of Orders the wife shall pay to the husband the sum of NINETY-SEVEN THOUSAND NINE HUNDRED AND SIXTY DOLLARS ($97,960).

That simultaneously with compliance by the wife with Order 3, the husband shall do all acts and things and sign all documents necessary to and in order of priority:

4.1 pay and discharge the liabilities of the parties in respect of 2 St George Portfolio Loans Numbers …37 and …18;

4.2 transfer the property known as and situate at R Street, W to the wife.

On the husband’s compliance with Order (4) the wife shall do all acts and things and sign all documents necessary to transfer to the husband all her right title and interest in each of the H properties.

In default of the wife’s compliance with Order 5 herein or any part of that order, the parties shall do all acts and things and sign all documents necessary to sell the W property and the net proceeds of sale after payment out of all reasonable costs of sale, including but not limited to:

6.1 Agent’s commission;

6.2 conveyancying costs; and

6.3 any mortgage secured on the property at that time

AND the net balance to be divided:

6.4 as to husband, the sum of $97,960; and

6.5 to the wife, the balance.

That within 7 days of the date of the Orders the wife do all acts and things and execute all such documents as may be necessary to:

7.1 transfer to the husband or as he directs in writing at the husband’s expense, her shareholding in M Pty Limited; and

7.2 do all acts and things and execute all documents as are necessary and are provided by the husband at his expense to cause to be assigned to him all other rights entitlements claims, actions or demands which the wife may have against the company whether by way of long service leave, unpaid wages, shareholder’s loan accounts or otherwise howsoever arising.

That on and contemporaneously with the wife’s compliance with Order 7 the husband pay and indemnify and keep indemnified the wife with respect to any liability of the wife arising out of or attaching to M Pty Limited and the business trading as MM Services including but not exclusively any liability to the Australian Taxation Office as a result of her shareholding in the company, her loan account in the company and any wages or remuneration of her paid or unpaid.

That within 7 days of the days hereof the wife shall make available for collection by the husband from the home the jackhammer referred to in the valuation report of Mr F.

10.

That forthwith upon the making of these orders and other than as provided herein, the husband transfer to the wife all his right title and interest in any item of personalty of property in the wife’s possession and/or control as at the date of the making of these Orders.

11.

That forthwith upon the making of these Orders and other than as provided herein, the wife transfer to the husband all her right title and interest in any item of personalty of property in the husband’s possession and/or control as at the date of the making of these Orders.

12.

Pursuant to s 90AE(1) of the Family Law Act 1975 (Cth) the husband be solely legally responsible as between the husband’s mother, Mrs Mena Snr, and the husband for any and all indebtedness to the husband’s mother in relation to any alleged loan advances by the husband’s mother to the husband and not paid.

13.

That the husband pay and indemnify and keep indemnified the wife with respect to any liability in his sole name as at the date of orders or attaching to any property transferred to him pursuant to these Orders.

14.

That the wife pay and indemnify and keep indemnified the husband with respect to any liability in her sole name as at the date of orders or attaching to any property transferred to her pursuant to these Orders.

15.

That each of the parties do all acts and things and execute or sign all documents necessary to give effect to these Orders.

16.

That pursuant to s 106A of the Act, in the event that any party fails, neglects or refuses to sign any document required to give effect to these Orders within 7 days of being requested in writing by another party who has an interest in the execution of such document, then upon the filing of an affidavit evidencing such failure, neglect, or refusal, a Registrar of the Newcastle Registry of the Family Court of Australia is appointed to execute such document in lieu of the defaulting party.

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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