FAMILY COURT OF AUSTRALIA
| MURRAY & MURRAY (NO. 3) | [2019] FamCA 847 |
| FAMILY LAW – PROPERTY – Where each party seeks a different property settlement order pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the husband conceded he had been involved in money laundering involving significant cash transactions - Where findings are made that the husband has not made full and frank disclosure in the course of the proceedings – Where adverse credit findings are made in respect to the husband’s evidence – Where the Court finds that it does not have to be too careful in making any assumptions or drawing any inferences in the husband’s favour as to what are his actual financial circumstances – Where the Court has no confidence that all assets are known and consequently no confidence in the assessment of contributions - Where an adjustment in favour of the wife in respect of s 79(4)(d)-(g) considerations is made taking into account, amongst other things, the lack of full and frank disclosure by the husband. FAMILY LAW – APPLICATION IN A CASE – Where the wife seeks enforcement of a number of the husband’s financial obligations pursuant to interim orders – Where upon the delivery of final judgment, the majority of the orders the wife seeks are nugatory –Where there is insufficient evidence to make an order enforcing child support arrears against the husband – Where the wife’s application and the husband’s response are dismissed. |
| Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) Part 3, Division 1 Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) 13.01, 13.02 |
| Al Baker & Al Baker [2016] EWHC 2510 (Fam); Black & Kellner (1992) FLC 92-287; Franklin & Ennis [2019] FamCAFC 91; Jones & Dunkel (1959) 101 CLR 298; Kowaliw v Kowaliw (1981) FLC 91-092; Oriolo & Oriolo (1985) FLC 91-653; Weir & Weir (1993) FLC 92 – 338 |
| APPLICANT: | Ms Murray |
| RESPONDENT: | Mr Murray |
| FILE NUMBER: | SYC | 5665 | of | 2014 |
| DATE DELIVERED: | 18 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 17 - 21 September 2018; 27 and 28 September 2018 (reserved 15 November 2019 after written submissions in relation to reopening ) |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Mr Dura |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers |
Orders
Pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) a property settlement order be made in the terms of paragraphs 2 to 11.
On or before the expiration of six months from the date of these Orders and subject to the wife complying with paragraph 3, the husband transfer his right, title and interest in the property situated at and known as B Street, Suburb C (“the Suburb C property”) to the wife.
Simultaneously with the transfer of the Suburb C property to the wife, the wife do all things and sign all necessary documents to discharge the current…
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- AGLC
- Murray and Murray (No 3) [2019] FamCA 847
- Case
- [2019] FamCA 847
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate property settlement, considering the husband's lack of full and frank disclosure and the resulting uncertainty regarding his financial position. Additionally, the court considered the wife's application for enforcement of certain financial obligations under interim orders, which largely became nugatory upon the delivery of the final judgment. The court also had to assess whether there was sufficient evidence to make an order enforcing child support arrears against the husband.
Watts J reasoned that given the husband's lack of candour and the resulting lack of confidence in his financial disclosure, the court was not required to be overly cautious in making assumptions or drawing inferences in his favour. An adjustment was made in favour of the wife under section 79(4)(d)-(g) of the Act, taking into account, among other factors, the husband's non-disclosure. Regarding the wife's application for enforcement, the court found insufficient evidence to make an order for child support arrears, and consequently, both the wife's application and the husband's response were dismissed.
The court made property settlement orders, including the transfer of the husband's interest in the Suburb C property to the wife, subject to her discharging the existing mortgage. Provisions were made for the wife to make mortgage payments pending the transfer, or for the property to be listed for sale if she failed to comply. The proceeds of sale would be distributed in a specified order. The wife was declared solely entitled to monies held by H Firm and associated entities. Each party was to transfer assets and indemnify the other in respect of liabilities as detailed in a table within the reasons for judgment, with each party otherwise retaining assets in their name. The Registrar was appointed to execute documents if a party neglected to do so.
Orders
Orders of the court
1.
Pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) a property settlement order be made in the terms of paragraphs 2 to 11.
2.
On or before the expiration of six months from the date of these Orders and subject to the wife complying with paragraph 3, the husband transfer his right, title and interest in the property situated at and known as B Street, Suburb C (“the Suburb C property”) to the wife.
3.
Simultaneously with the transfer of the Suburb C property to the wife, the wife do all things and sign all necessary documents to discharge the current mortgage on the Suburb C property.
4.
Pending the transfer in paragraph 2, the wife make all regular mortgage payments that regularly fall due from the date of these orders and in compliance with any arrangements with the mortgagor from time to time, in respect to the Suburb C property.
5.
In the event that the wife does not comply with paragraphs 3 or 4, the parties do all acts and things and sign all documents necessary to cause the Suburb C property to be listed for sale with a Real Estate Agent as agreed between the parties and failing agreement, as appointed by the President of the Real Estate Institute of New South Wales (“the listing Agent”).
6.
Upon the sale of the Suburb C property pursuant to paragraph 5, the parties shall do all acts and things and sign all documents necessary to cause the proceeds of sale to be distributed in the following order and priority:
(a) The payment of the listing Agent’s commission and selling costs;
(b) The payment of all legal fees associated with the sale;
(c) The payment of any mortgage secured over the Suburb C property;
(d) The payment of all council and water rate adjustments;
(e) The payment of the balance to the wife.
7.
Pending the sale of the Suburb C property:
(a) The wife shall continue to have exclusive occupation of the Suburb C property;
(b) Neither party shall do any act or thing so as to further encumber the Suburb C property; and
(c) The wife shall pay, as and when they fall due, all rates and utilities associated with the Suburb C property.
8.
Declaration that the wife be solely entitled to all monies currently held by H4 Pty Ltd and H5 Pty Ltd (“H Firm”) or any associated entities on behalf of the parties and that H Firm and any associated entities are directed to pay those monies to the wife.
9.
Each party is to do all things and sign all necessary documents to transfer to the other any asset which has been distributed to either of them in the table contained at paragraph 420 in the Reasons for Judgment.
10.
Each party is to do all things and sign all necessary documents to indemnify the other in respect of any liability for which they are responsible pursuant to the table contained at paragraph 420 in the Reasons for Judgment and in particular, the husband is to indemnify the wife in relation to any liability in respect of the Superannuation Fund 1 (including the sum of $100,000 alleged to be owed to the Fund).
11.
Otherwise, each party shall retain any asset which is in their name or possession and indemnify the other in respect of any liability relating to that asset or otherwise in their name.
12.
Either party have leave upon reasonable notice to seek the implementation of this order.
13.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these paragraphs, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Act to execute such documents on behalf of such party.
14.
The wife’s Application in a Case filed 2 September 2019 and the husband’s Amended Response filed 25 October 2019 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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