Moreton and Moreton - [2008] FamCA 1170

FAMILY COURT OF AUSTRALIA

MORETON & MORETON

[2008] Fam CA 1170

FAMILY LAW – PROPERTY – Farming case – Initial contributions – 10.5 year marriage – Liabilities – Taxation and Realisation costs – Assessment of Contributions – Justice and equity of final orders

Family Law Act 1975 (Cth) ss 79 and 75(2)
Child Support Assessment Act 1989 (Cth)

B-H v B-H [2006] FamCA 379
C v C [1998] FamCA 143
Clauson [1995] 18 FamLR 693
Coghlan v Coghlan [2005] FLC 93-220
Garret [1984] FLC 91-539
G v G [2004] FamCA 16
G v G [2001] FamCA 531
Hickey v Hickey ex parte The Attorney General for the Commonwealth [2003] 30 FamLR 355
In G v G [2001] FamCA 1453
In the Marriage of Clauson [1995] FLC 92-595
In the Marriage of Ferraro [1993] FLC 92-335
In the Marriage of Lee Steere [1985] FLC 91-626
In the Marriage of Magas [1980] FLC 90-885
In the Marriage of Mallet [1984] 156 CLR 605
Kowaliw [1981] FLC 91-092
Macgregor v Macgregor [1996] FLC 92-710
Marker v Marker [1998] FamCA 42
Norbis v Norbis [1986] 10 FamLR 819
Omacini v Omacini [2005] FLC 93-218
Pierce v Pierce [1998] FamCA 74; [1999] FLC 92-844
Rosati v Rosati [1998] FLC 92-804
S v S [2006] FamCA 283
V v G [1982] FLC 91-207

APPLICANT:

Mr Moreton

RESPONDENT:

Ms Moreton

FILE NUMBER:

BRC

5963

2007

DATE DELIVERED:

19 December 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

15 & 16 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kent SC

SOLICITOR FOR THE APPLICANT:

Mr Steel

Barry & Nilsson

COUNSEL FOR THE RESPONDENT:

Ms McLennan

SOLICITOR FOR THE RESPONDENT:

Anne Murray & Co

Orders

As and by way of alteration of property interests pursuant to section 79 of the Family Law Act 1975.

That within four months of the date of these orders, the husband pay to the wife the sum of $1,100,000.00.
That as and from the date of these orders, the wife relinquish all right, title and interest in the Moreton Family Trust and sign all documents and do all things necessary to relinquish any right, title or interest that she holds in the trust.
That on or before the expiration of 30 days from the date of these orders, the wife execute all deeds and instruments necessary to transfer her interest in the company C Pty Ltd to the husband including, inter alia, the following:
(a) Transferring her shares in the company to the husband;
(b) Resigning as a director of the company;
(c)Executing any other documents necessary to relinquish her right, title and interest in relation to the company.
That, except as otherwise provided for in these orders, the husband is entitled to be the sole legal and beneficial owner of the following:
(a)“[M property]”, in the state of Queensland;
(b)       The husband’s interest in the Moreton Family Trust;
(c)       Any shares held in any publicly listed company by the husband;
(d)       Any investment held…

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 Moreton and Moreton

Details

AGLC: Moreton and Moreton [2008] FamCA 1170
Case: [2008] FamCA 1170
Decision Date: 19 December 2008

CaseChat Overview and Summary

In the matter of Moreton and Moreton, Murphy J made orders pursuant to section 79 of the *Family Law Act 1975* concerning the alteration of property interests between the parties. The dispute involved the division of various assets, including real estate, a family trust, a company, shares, investments, vehicles, and superannuation funds.

The court was required to determine how the parties' property interests should be divided. This involved assessing the value of each asset and allocating them between the husband and wife in a manner deemed just and equitable. The orders reflect a comprehensive distribution of the marital assets and liabilities.

Murphy J ordered the husband to pay the wife a sum of $1,100,000.00 within four months. The wife was to relinquish all interest in the Moreton Family Trust and transfer her interest in C Pty Ltd to the husband, including her shares and directorship. The husband was to become the sole legal and beneficial owner of specified properties, including "[M property]", his interest in the Moreton Family Trust, and various investments and financial accounts. The wife was to retain sole ownership of her shares in publicly listed companies, her investments in Forest Enterprises Australia, and certain bank accounts and superannuation. Each party was to retain furniture and chattels in their possession and indemnify the other against liabilities related to the property they received. The orders also included provisions for the Registrar to execute documents on behalf of a defaulting party and addressed the matter of costs.

Orders

Orders of the court

As and by way of alteration of property interests pursuant to section 79 of the Family Law Act 1975.

That within four months of the date of these orders, the husband pay to the wife the sum of $1,100,000.00.

That as and from the date of these orders, the wife relinquish all right, title and interest in the Moreton Family Trust and sign all documents and do all things necessary to relinquish any right, title or interest that she holds in the trust.

That on or before the expiration of 30 days from the date of these orders, the wife execute all deeds and instruments necessary to transfer her interest in the company C Pty Ltd to the husband including, inter alia, the following:

(a) Transferring her shares in the company to the husband;

(b) Resigning as a director of the company;

That, except as otherwise provided for in these orders, the husband is entitled to be the sole legal and beneficial owner of the following:

(a) “[M property]”, in the state of Queensland;

(b) The husband’s interest in the Moreton Family Trust;

(d) Any investment held in Forest Enterprises Australia by the husband;

(e) Any plant and equipment situate on M property;

(f) Any livestock situate on M property;

(g) The husband’s Colonial Mutual Whole Life policy;

(h) The husband’s Westpac One account;

(i) The husband’s Colonial Super Retirement Fund.

That, except as otherwise provided for in these orders, the wife is entitled to be the sole legal and beneficial owner of the following:

(a) Her shares in any publicly listed companies;

(b) Her investment in Forest Enterprises Australia;

(d) Her Westpac Choice account;

(e) The $50,000 she received on 28 June 2006 from the Moreton Family Trust;

(f) Her Q Super superannuation.

That within 30 days of the date of these orders, the husband and wife sign all documents and do all things necessary to transfer the ownership of the Toyota Landcruiser GXL wagon currently in the wife’s possession to the wife from the trust.

That each party retain all furniture and chattels currently in their possession.

That except as otherwise provided for in these orders, each party shall indemnify the other in relation to any expenses, outgoings and liabilities related to those items of property which they retain or receive pursuant to these orders.

In the event that either party refuses or neglects to do any act or sign any documents required to be signed or executed in compliance with the provisions of these orders, then pursuant to section 106A of the Family Law Act 1975, the Registrar or Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the said order and the Affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of such non-compliance. The party in default is ordered to pay all reasonable solicitor/own costs incurred by the non-defaulting party.

10.

Leave is given to the respondent to file the Affidavit of her solicitor, Elvina Ogil sworn 19 December 2008.

11.

That the applicant file by sending via email to the Associate of His Honour Justice Murphy written submissions regarding costs, together with a response to the Affidavit of the wife’s solicitor filed 19 December 2008, by 4.00pm on 9 January 2009.

12.

That the respondent file by sending by email to the Associate of His Honour Justice Murphy written submissions regarding costs by 4.00pm on 30 January 2009.

13.

That His Honour Justice Murphy deal with the matter of costs in chambers unless further oral submissions are required by the parties.

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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