FAMILY COURT OF AUSTRALIA
| MILLER & MILLER | [2014] FamCA 591 |
| FAMILY LAW – PROPERTY – Where the husband received an inheritance during the marriage which has a “special value” for family members – Where wife seeks to retain the home – Where parties have future earning capacities and similar superannuation interests – Where a superannuation splitting order is not considered appropriate – Where the husband’s contributions are deemed greater due to the inheritance – Where there is to be a small adjustment to the wife in considering factors set out in Section 75(2) of the Family Law Act 1975 (Cth) |
| Family Law Act 1975 (Cth) ss 75(2), 79(1), (2) & (4) |
| Bevan & Bevan [2014] FamCAFC 19 Bishop & Bishop [2013] FamCAFC 138 Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209 Bolger & Headon [2014] FamCAFC 27 Bonnici & Bonnici (1992) FLC 92-272 Brisbane City Council v. Mio Art Pty Ltd & Anor [2011] QCA 234 Brisbane City Council v The Valuer-General for the State of Queensland (1978) 140 CLR 41 Bronzel v State Planning Authority of SA (1979) 21 SASR 513 Chapman & Chapman [2014] FamCAFC 91 Dickons & Dickons [2012] FamCAFC 154 Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor (2003) 129 LGERA 65 Housing Commission of New South Wales v San Sebastian Pty Ltd (1978) 140 CLR 196 Russell and Russell (1999) FLC 92-877 Spencer v Commonwealth (1907) 5 CLR 418 Stanford v Stanford [2012] HCA 52 St John Ambulance Association (WA) Inc v East Perth Redevelopment Authority (2011) 114 LGERA 112 Teal & Teal [2010] FamCAFC 120 |
| APPLICANT: | Ms Miller |
| RESPONDENT: | Mr Miller |
| FILE NUMBER: | PAC | 3081 | of | 2013 |
| DATE DELIVERED: | 30 July 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 15 & 16 July 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton |
| SOLICITOR FOR THE APPLICANT: | Caldwell Miller Cox |
| COUNSEL FOR THE RESPONDENT: | Mr Tockar |
| SOLICITOR FOR THE RESPONDENT: | Delaney Lawyers |
Orders
That within forty-two (42) days from the date of these Orders, the husband do all things necessary and sign all necessary documents so as to transfer to the wife, on a date nominated by her within that period, his interest in the former matrimonial home at B Street, Suburb C, New South Wales, being the whole of the land contained in folio identifier …, and that concurrently with the transfer, the wife do all acts and things necessary to refinance the existing mortgage to the National Australia Bank Limited secured over the said home so as to release the husband from all or any liability in relation to the said mortgage provided that the husband shall sign, when requested and submitted to him, the appropriate discharge authority.
That pending transfer of the former matrimonial home to the wife, the husband pay, as they fall due and payable, all mortgage payments to the National Australia Bank Limited and all outgoings,…
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- Miller and Miller [2014] FamCA 591
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- [2014] FamCA 591
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CaseChat Overview and Summary
The court was required to determine how the parties' interests in the former matrimonial home should be divided, including the conditions for its transfer and the refinancing of the associated mortgage. Further issues included the transfer of a caravan and the payment of a specific sum of money by the husband to the wife. The court also considered the husband's obligations regarding the property pending transfer and his conduct upon vacating the premises.
Foster J ordered that the husband transfer his interest in the former matrimonial home to the wife within 42 days, provided the wife refinanced the mortgage to release the husband from liability. Pending this transfer, the husband was to continue making mortgage payments and outgoings. Upon transfer, the husband was to vacate the property, leaving it in good order, and was restrained from removing fixtures. The husband was also ordered to transfer his interest in a caravan to the wife within 14 days and deliver it within seven days thereafter. Finally, the husband was ordered to pay the wife $92,000 within three months. Liberty was granted to either party to apply for enforcement or implementation of these orders.
Orders
Orders of the court
1.
That within forty-two (42) days from the date of these Orders, the husband do all things necessary and sign all necessary documents so as to transfer to the wife, on a date nominated by her within that period, his interest in the former matrimonial home at B Street, Suburb C, New South Wales, being the whole of the land contained in folio identifier …, and that concurrently with the transfer, the wife do all acts and things necessary to refinance the existing mortgage to the National Australia Bank Limited secured over the said home so as to release the husband from all or any liability in relation to the said mortgage provided that the husband shall sign, when requested and submitted to him, the appropriate discharge authority.
2.
That pending transfer of the former matrimonial home to the wife, the husband pay, as they fall due and payable, all mortgage payments to the National Australia Bank Limited and all outgoings, including Council rates, water rates and insurances in respect to the property, as they fall due and payable.
3.
That upon completion of the transfer of the former matrimonial home to the wife, the husband shall concurrently, if he has not already done so, vacate the property leaving the said property in good order and condition.
4.
That the husband be restrained from removing fixtures and fittings, including blinds, curtains and light fittings, from the former matrimonial home at B Street, Suburb C when vacating the said property.
5.
That within fourteen (14) days from the date of these Orders, the husband do all things necessary and sign all necessary documents to transfer to the wife his interest in the Caravan presently in his possession and facilitate a delivery of that caravan in good order and condition to a place nominated by the wife within seven (7) days from the date of these Orders.
6.
That within three (3) months from the date of these Orders, the husband pay to the wife the sum of $92,000.
7.
That liberty is granted to either party to apply on short notice as to implementation or enforcement of these 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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