FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOWERY & MOWERY | [2019] FCCA 2034 |
| Catchwords: FAMILY LAW – Property – valuations – contributions – addbacks – inadequate disclosure – future needs. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 79, 117 |
| Cases cited: Stanford & Stanford [2012] HCA 52 Lee Steere & Lee Steere (1998) FLC 91-626 In the Marriage of AJO & GRO (2005) 33 Fam LR 134 In the Marriage of DJM and JLM (1998) 23 Fam LR 396 |
| Applicant: | MS MOWERY |
| Respondent: | MR MOWERY |
| File Number: | ADC 2611 of 2017 |
| Judgment of: | Judge Kelly |
| Hearing dates: | 5 and 6 December 2018 |
| Date of Last Submission: | 6 December 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 31 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Ross |
| Solicitors for the Applicant: | D'Angelo Kavanagh |
| The Respondent: | In Person |
ORDERS
In full and final settlement of the parties’ applications for property settlement:
Within 60 days of the date of these Orders the wife do all things and sign all documents necessary to transfer her interest in the property at B Street, Suburb C, South Australia being the whole of the land described in Certificate of Title Register Book Volume … Folio … (“the former matrimonial home”) to the husband.
Contemporaneously with this transfer the husband shall:
(a)discharge the Commonwealth Bank home loan accounts numbers … and … secured by way of mortgage over the former matrimonial home and indemnify the wife in respect to any claim or liability thereto; and
(b)pay to the wife the sum of FOUR HUNDRED AND THIRTEEN THOUSAND SIX HUNDRED AND EIGHTY ONE DOLLARS ($413,681) (“the settlement sum”).
The husband do retain for his sole use and benefit the following assets:
(a)the Motor Vehicle D;
(b)all shareholdings in his sole name;
(c)all savings and investments in his sole name;
(d)all furniture and household effects in his possession;
(e)all superannuation entitlements and life insurances in his name;
(f)any other personal property in his possession.
The wife do retain for her sole use and benefit the following assets:
(a)the Motor Vehicle E;
(b)any shareholdings in her sole name;
(c)all savings and investments in her sole name;
(d)all furniture and household effects in her possession;
(e)all superannuation entitlements and life insurances in her name;
(f)any other personal property in her possession.
The husband shall retain sole responsibility for all debts and liabilities in his name, including investment loans, personal loans and credit cards and shall indemnify the wife in relation…
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- AGLC
- MOWERY & MOWERY [2019] FCCA 2034
- Case
- [2019] FCCA 2034
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate method for valuing and distributing the matrimonial home, considering the parties' respective contributions, any alleged inadequate disclosure, and their future needs. The court also had to address the allocation of various other assets and liabilities, including motor vehicles, shareholdings, savings, superannuation, and debts.
Judge Kelly ordered that the former matrimonial home be transferred to the husband, who was to discharge existing home loan accounts and indemnify the wife. The husband was also ordered to pay the wife a settlement sum of $413,681. The court further directed that each party retain specific assets and be solely responsible for their respective debts, with mutual indemnities provided. In the event of default by the husband in paying the settlement sum, the matrimonial home was to be sold, with proceeds applied first to the outstanding settlement sum and interest, then to the wife's costs, and the balance to the husband. The husband was also ordered to pay the wife's costs fixed at $14,969.
Orders
Orders of the court
In full and final settlement of the parties’ applications for property settlement:
1.
Within 60 days of the date of these Orders the wife do all things and sign all documents necessary to transfer her interest in the property at B Street, Suburb C, South Australia being the whole of the land described in Certificate of Title Register Book Volume … Folio … (“the former matrimonial home”) to the husband.
2.
Contemporaneously with this transfer the husband shall:
(a) discharge the Commonwealth Bank home loan accounts numbers … and … secured by way of mortgage over the former matrimonial home and indemnify the wife in respect to any claim or liability thereto; and
(b) pay to the wife the sum of FOUR HUNDRED AND THIRTEEN THOUSAND SIX HUNDRED AND EIGHTY ONE DOLLARS ($413,681) (“the settlement sum”).
3.
The husband do retain for his sole use and benefit the following assets:
(a) the Motor Vehicle D;
(b) all shareholdings in his sole name;
(c) all savings and investments in his sole name;
(d) all furniture and household effects in his possession;
(e) all superannuation entitlements and life insurances in his name;
(f) any other personal property in his possession.
4.
The wife do retain for her sole use and benefit the following assets:
(a) the Motor Vehicle E;
(b) any shareholdings in her sole name;
(c) all savings and investments in her sole name;
(d) all furniture and household effects in her possession;
(e) all superannuation entitlements and life insurances in her name;
(f) any other personal property in her possession.
5.
The husband shall retain sole responsibility for all debts and liabilities in his name, including investment loans, personal loans and credit cards and shall indemnify the wife in relation to these debts.
6.
The wife shall retain sole responsibility for all debts and liabilities in her name, including investment loans, personal loans and credit cards and shall indemnify the husband in relation to these debts.
7.
In the event the husband defaults on payment of all or part of the settlement sum due to the wife the following shall apply:
(a) the husband pay interest on the settlement sum outstanding at the rate prescribed in the Federal Circuit Court Rules 2001; and
(b) the former matrimonial home be placed on the market for sale and sold by public auction within 60 days and after payment of commissions, fees and mortgages, the net proceeds of sale be paid as follows:
(i) the settlement sum still outstanding to the wife together with the interest owing on that sum;
(ii) the wife’s costs in accordance with these Orders, if not already paid; and
(iii) the balance then remaining to the husband.
8.
Each party sign all documents and do all things necessary to give effect to these Orders.
9.
In the event a party fails to sign or execute any document within seven (7) days of being requested to do so by the other party, then a Registrar of the Federal Circuit Court is empowered to sign and execute such document on behalf of the defaulting party.
10.
The husband pay the wife’s costs fixed in the sum of $14,969, to be paid to the wife’s solicitors within 60 days.
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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