Murray and Murray (No 3) - [2019] FamCA 847

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

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…

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 Murray and Murray (No 3)

Details

AGLC: Murray and Murray (No 3) [2019] FamCA 847
Case: [2019] FamCA 847
Decision Date: 18 November 2019

CaseChat Overview and Summary

In *Murray and Murray (No 3)*, Watts J of the Family Court of Australia determined property settlement orders sought by each party pursuant to section 79 of the *Family Law Act 1975* (Cth). The proceedings were complicated by the husband's concession of involvement in money laundering and findings that he had failed to make full and frank disclosure. Consequently, the court made adverse credit findings against the husband and expressed a lack of confidence in his stated financial circumstances and the completeness of known assets, impacting the assessment of contributions.

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

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 mortgage on the Suburb C property.

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.

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”).

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;

(d) The payment of all council and water rate adjustments;

(e) The payment of the balance to the wife.

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

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.

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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