Murgatroyd & Murgatroyd (No 2)

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Federal Circuit and Family Court of Australia

(DIVISION 1)

Murgatroyd & Murgatroyd (No 2) [2022] FedCFamC1F 712

File number(s): MLC 12634 of 2016
Judgment of: BAUMANN J
Date of judgment: 29 September 2022
Catchwords: FAMILY LAW – PROPERTY – Assessment of contributions – Issue of inheritances – Two pool approach
Legislation: Family Law Act 1975 (Cth) ss 75, 79
Cases cited:

Black & Kellner (1992) FLC 92-287

Hickey & Hickey (2003) FLC 93-143

Jabour & Jabour [2019] FamCAFC 78

Kennon & Kennon (1997) FLC 92-757

Murgatroyd & Murgatroyd [2019] FamCA 617

Mayhew & Fairweather [2022] FedCFamC1A 53

Stanford & Stanford [2012] HCA 52

Weir & Weir (1993) FLC 92-338

Division: Division 1 First Instance
Number of paragraphs: 85
Date of last submission/s: 30 August 2022
Date of hearing: 29 & 30 August 2022
Place: Brisbane
The Applicant: Litigant in person
The Respondent: Litigant in person

ORDERS

MLC 12634 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR MURGATROYD

Applicant
AND:

MS MURGATROYD

Respondent

order made by:

BAUMANN J

DATE OF ORDER:

29 SEPTEMBER 2022

THE COURT ORDERS:

1.That the Applicant shall do all things required to achieve a sale of the property registered in his name at BB Street, Suburb L (“the BB Street property”), and the proceeds of sale are to be distributed in the following manner:-

(a)Firstly, in the payment of real estate agents commissions, auctions fees, and marketing expenses incurred;

(b)Secondly, in the payment of legal expenses related solely to the conveyance pursuant to the Contract of Sale;

(c)Thirdly, any necessary adjustments for statutory changes associated with the ownership of the BB Street property;

(d)Fourthly, in discharge of the secured mortgage/s over the BB Street property (but expressly not including the Applicant’s liability for any credit cards in his name); and

(e)As to the remaining net proceeds of sale, they shall be distributed as to:

(i)75 per cent of the net proceeds to the Applicant MR MURGATROYD; and

(ii)25 per cent of the net proceeds to the Respondent MS MURGATROYD

2.That save as otherwise Ordered:

(a)The Applicant shall retain as his sole and exclusive property all other personal property, bank accounts, motor vehicles, superannuation interests, furniture, and chattels in his possession at the time of this Order to the exclusion of any claim by the Respondent;

(b)The Respondent shall retain as her sole and exclusive property all other personal property, bank accounts, motor vehicles, superannuation interests, furniture, and chattels in her possession at the time of this Order and specifically her interest (whether vested or not yet vested) as a beneficiary in the Estate of her late mother and the Country F investments referred to at paragraph 57 of the Reasons for Judgment to the exclusion of any claim by the Applicant.

3.That the Applicant shall be responsible for all loans, credit card liabilities, and other debts in his name personally and shall indemnify the Respondent in respect of any liability for those obligations.

4.That the Respondent shall be responsible for all loans,…

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Details
Case
[2022] FedCFamC1F 712
Decision Date

CaseChat Overview and Summary

The case of Murgatroyd & Murgatroyd (No 2) involves a dispute between a husband and wife over the division of assets following their separation. The matter was heard in the Family Court of Australia. The wife had sought to have certain assets, particularly those located in Country F, included in the pool of assets to be divided between the parties. The husband argued that the Court did not have jurisdiction to make orders regarding those assets, as they were located outside of Australia.

The court had to determine whether it had the jurisdiction to make orders regarding assets located in Country F, and if so, how those assets should be divided between the parties. The court also had to determine the appropriate division of the assets located in Australia, and whether the wife's inheritance entitlements in Country F should be taken into account.

The court found that it did not have jurisdiction to make orders regarding the assets located in Country F, but that any additional costs incurred by the wife in relation to those assets could be offset by orders made in Australia. The court held that it was just and equitable to divide the assets located in Australia in a manner that gave the husband approximately 65 per cent of the pool one assets, and the wife 35 per cent of those assets. The court also held that the wife should retain her inheritance entitlements in Country F. The court made orders to this effect, noting that the precise division of the net proceeds from the sale of the parties' home would need to be adjusted if the actual net proceeds were different from the notional amount calculated by the court.

This decision highlights the complexities that can arise in family law cases where assets are located in multiple jurisdictions. It also demonstrates the court's willingness to take into account the specific circumstances of each case when making orders regarding the division of assets.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There are no orders I could or should make in relation to those issues as no jurisdiction has been enlivened. As a result, any additional costs to the wife in the future may be, and I put it no higher than that, offset by orders made that are enforceable in Australia from the Country F jurisdiction.Conclusion As a result of the analysis which has preceded, I would regard it as just and equitable if orders that provided the husband to receive approximately 65 per cent of the pool one assets; the wife to have 35 per cent of the pool one assets, and the wife to retain all her inheritance entitlements in Country F were made. The orders which I pronounce and which are set out at the commencement of these Reasons clearly need to be shaped by the fact that the Court will be required to make orders that take account of the possible net entitlements of the parties to the proceeds of sale of BB Street property. In that regard, on the calculations of the Court, if the husband was to receive 65 per cent of the pool one interests of $670,871, this would amount to $436,066. From that sum should be deducted those assets which he still has control of, being $60,450, leaving an entitlement to him of $375,616. $375,616 represents approximately 75 per cent of the notional net proceeds of sale of $504,000. Before turning to a calculation of the wife’s entitlement, although the husband said that the Commonwealth Bank of Australia would require him to pay and discharge his Credit Card account of approximately $8,000 from the proceeds of sale, it would not be, in my view, proper for the wife to share the expenses of his Credit Card account considering where they were incurred year after separation. Accordingly, he will need to meet the Credit Card account himself from his share of the proceeds. The wife’s 35 per cent of the pool one interest amounts to $234,805. Taking into account assets which she has control of now or in the future (excluding the inheritance) of $106,421 the notional net proceeds of sale from the home would be $128,384. This represents 25 per cent of the net proceeds. The net proceeds could be more or less than $504,000 – it is likely to be less because of the costs of sale and the like and in that regard I note that the husband has used part of his superannuation withdrawal to meet some of the advertising costs already. I regard an order that effectively distributes the net proceeds of sale of the home in the way the orders set out, with the husband receiving 75 per cent and the wife 25 per cent of the nett proceeds, to be just and equitable. Otherwise they will retain those other items an interests they have as identified in the pool.

Ratio Decidendi

Legal Principle Established

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