FAMILY COURT OF AUSTRALIA
| NEUBERT (DECEASED) & NEUBERT AND ANOR (NO. 2) | [2017] FamCA 829 |
| FAMILY LAW – PROPERTY – Application for a property settlement by the wife – Where wife was killed by the husband after filing but prior to the final hearing – Where wife was substituted as a party to the proceedings by her personal legal representative for her Estate FAMILY LAW – PROPERTY – Where the husband initially sought orders that there be a division of property to the late wife’s Estate whereas he receive 80 per cent and the late wife’s Estate receive 20 per cent but later sought an equal division of the assets – Consideration of s 79(8) of the Family Law Act 1975 (Cth) – Court satisfied that s 79(8) requirements are met in circumstances where to decline to make an order would reward the party who had killed the other party to the proceedings - Orders made where the parties assets should be divided 35 per cent to the Estate of the late wife and 65 per cent as to the husband – Order that the husbands share of the parties assets be paid directly to the intervenor to be set off against the judgment debt arising from the Supreme Court proceedings – Consideration of whether there should be any s 75(2) adjustment – Given the death of the late wife there were no s 75(2) adjustments to be made in her favour | |
| Family Law Act 1975 (Cth) Trustee Act 1898 (Tas) s 7 Crimes Act 1961 (NZ) ss 68, 167, 168. | |
Cooper v Neubert [2017] TASSC 33
In the marriage of Kayes (1999) FLC 92-846
Fisher v Fisher (No. 2) [1986] HCA 61; (1986) 161 CLR 438; (1986) FLC 91-767
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191; (2005) 213 ALR 692; (2005) 79 ALJR 731
Stanford & Stanford [2012] HCA 52
Mena & Mena and Anor [2016] FamCAFC 85
Meddow & Estate of the late Ms Meddow [2015] FamCA 1182
Doyle & Doyle (1989) FLC 92-027
Cornell & Stokes [2008] FMCAfam 774
Finlayson & Finlayson & Gillam [2002] FamCA 898, (2002) FLC 93-121
Charles & Charles [2017] FamCAFC 3
Homsy & Yassa and Yassa; the Public Trustee (1994) FLC 92-442
Pierce & Pierce (1999) FLC 92-844
Grace v Grace [2012] NSWSC 976
Van der Linden & Kordell [2010] FamCAFC 157
Watson & Ling [2013] FamCA 57
Trustee of the Property of Lemnos v Lemnos (2009) 223 FLR 53
Explanatory Memorandum to the Bankruptcy and Family Law Legislation Amendment Bill 2004 (Cth)
Commonwealth, Parliamentary Debates, House of Representatives, 17 February 2005, 30 (Mr Ruddock, Attorney General)
| APPLICANT: | Graeme Bruce Gordon Bradfield As Legal Representative of Olga Baraquio Neubert |
| RESPONDENT: | Klaus Dieter Neubert |
| INTERVENOR: | Josephine Ramos Cooper |
| FILE NUMBER: | HBC | 796 | of | 2014 |
| DATE DELIVERED: | 18 October 2017 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 14… |
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- Case
- [2017] FamCA 829
- Decision Date
CaseChat Overview and Summary
The court was required to determine how to proceed with the property settlement application following the wife's death, specifically considering the application of section 79(8) of the *Family Law Act 1975* (Cth). The court also had to consider whether to make any adjustments under section 75(2) of the Act and how to address the husband's substantial debt to the intervenor in the division of the parties' assets.
The court found that the circumstances met the requirements of section 79(8)(b) of the *Family Law Act 1975*, as declining to make an order would effectively reward the husband for killing the wife. Consequently, the court ordered a division of the parties' assets, with 35% to be paid to the estate of the late wife and 65% to the intervenor, to be set off against the judgment debt owed by the husband. No section 75(2) adjustments were made in favour of the late wife due to her death. The court also made detailed orders regarding the sale of properties and the disbursement of proceeds to satisfy the intervenor's judgment debt and to account for the wife's estate.
Orders
Orders of the court
1.
Pursuant to the provisions of s 79(8)(b) of the Family Law Act 1975 (‘the Act’) the Graeme Bruce Gordon Bradfield (‘the applicant’), who is the legal personal representative of Ms Neubert (‘the late wife’), is permitted to continue these property proceedings commenced by the late wife prior to her death in 2015.
2.
The applicant and Mr Neubert; (‘the respondent’) shall do all acts and sign all documents to transfer to the Ms Cooper (‘the intervenor’) the respondent’s legal and equitable title in the following real properties:-
(a) the whole of D Road, Town M, Tasmania (‘Property M’); and
(b) the respondent’s one half interest in E Street, Town G, New Zealand (‘Property G’).
3.
The intervenor shall:-
a. do all acts to sell Property M at market value and the net proceeds of sale thereof (being the sale price less the legal and real estate agents selling costs and disbursements of and associated with such sale);
b. retain the legal and equitable interest in the net proceeds of such sale which are to be set off against the judgment debt due to her, pursuant to the May 2017 judgment of the Supreme Court of Tasmania and subsequent costs determination and as against first the judgment then the determined costs; and
c. keep the applicant and respondent informed of the details of the transaction and produce documents relating to them as are reasonably requested by one and/or other of them.
4.
The applicant and the intervenor shall do all acts to sell Property G at market value and the net proceeds of sale thereof, being the sale price less the legal and real estate agents selling costs and disbursements of and associated with such sale, shall be disbursed as follows:-
a. pay one half of the net proceeds of sale to be paid to the intervenor to be set off against the debt due to her pursuant to the May 2017 judgment of the Supreme Court of Tasmania and subsequent costs determination and as against first the judgment then the determined costs;
b. one half of the net proceeds of to be paid to the executors of the estate of the late wife or if probate is not granted then hold such funds in trust for her estate pursuant to the provisions of the Legal Profession Act 2007 (Tas) pending the granting of Probate of the late wife’s Will or otherwise the granting of Administration of the late wife’s estate; and
c. keep the respondent informed of the details of the transaction and produce documents relating to them are reasonably requested by him.
5.
The applicant and the intervenor shall do all acts and sign all documents to effect a division of the net total property of the parties so as to pay:-
a. thirty five per cent (35%) to the applicant to account for same to the to the executors of the estate of the late wife or if probate is not granted then hold such funds in trust for her estate pursuant to the provisions of the Legal Profession Act 2007 (Tas) pending the granting of Probate of the late wife’s Will or otherwise the granting of Administration of the late wife estate; and
b. sixty five percent (65%) to the intervenor to be set off against the debt due to her, pursuant to the May 2017 judgment of the Supreme Court of Tasmania and subsequent costs determination and as against first the judgment then the determined costs.
6.
The net assets are declared to include:-
a. the net proceeds of sale of Property M and Property G;
b. the sum of $410,000 paid to the intervenor pursuant to the order made 14 August 2017;
c. the balance, if any, of the trust sum of $34,424.66 held in trust pursuant to the order made 14 August 2017 after payment provided by Order 2 thereof;
d. proceeds of CBA Cash Management account in the name of the respondent and ending in ..89,
e. proceeds of Westpac account ending in ..25 less any income tax payable by the estate of the late wife on her share of the income that such money represents;
f. $75,000 and accumulated interest held by the offices of Butler McIntyre & Butler;
g. all assets held at P Bank less any tax as may be needed to repatriate such assets,
h. the five (5) gold coins held at Butler McIntyre & Butler;
i. the late wife’s entitlement of her superannuation preserved benefits;
j. the timber at Property M, if any;
k. subject to the orders of 14 August 2017, the furniture, chattels, tools and household items at Property M, if any; and
l. the funds received by the applicant pursuant to Court Orders 24 January 2017 and 2 August 2017, and such other assets, if any, as may be owned by the respondent.
7.
It is declared that the following liabilities be and are the sole responsibility of the respondent and the respondent shall indemnify the applicant in respect of any claim in relation thereto;
a. debt to Simmons Wolfhagen; and
b. debt to the intervenor.
8.
For the purposes of giving effect to the provisions these orders:-
a. the applicant shall relinquish in favour of the respondent, through payment to the intervenor in reduction in the quantum of the judgment debt and costs owed by the respondent to the intervenor, any interest that the late wife may have otherwise have to or in the $410,000 paid to the intervenor pursuant to the orders 14 August 2017 and the proceeds of Westpac account ending in ..25 to the intent that the intervenor shall be the sole and absolute legal owner;
b. The respondent shall relinquish in favour of the applicant and where necessary transfer to the applicant any interest that he may have to or in:-
(a) the five (5) gold coins held at Butler McIntyre & Butler;
(b) the late wife’s interest in her superannuation preserved benefit;
(c) the $75,000 held by Butler McIntyre & Butler;
(d) the proceeds of CBA Cash Management account in the name of the respondent, account number ..89;
(e) interest earned as referred to in respect of funds referred to in this order; and
(f) funds paid on to the applicant pursuant to order made on 24 January 2017 and 2 August 2017.
to the intent that the applicant hold such funds in trust for the late wife’s estate pursuant to the provisions of the Legal Profession Act 2007 (Tas) pending the granting of Probate of the late wife’s Will or otherwise the granting of Administration of the late wife estate.
9.
In respect of the timber, furniture, chattels, tools and household items situated at Property M, the applicant and/or his lawyer and/or nominee and the intervenor, her lawyer and/or nominee shall be permitted free and unrestricted access to enter and inspect same from time to time.
10.
The respondent shall within fourteen (14) days of written request relinquish in favour of and where necessary transfer to the applicant all personal items, if any, of the late wife.
11.
In reduction in the quantum of the judgment debt and costs owed by the respondent to the intervenor, the respondent shall within fourteen (14) days of a written request transfer to the intervenor all furniture, tools and other household items and the timber, if any.
12.
In respect of Property G, Orders 1 and 2(a) of the Order made on the 27 April 2017 shall remain in full force and effect, and Orders 2(b) and 2(c) shall be and are revoked.
13.
The monies to be received by Butler McIntyre & Butler, being monies to be repatriated from the European Union pursuant to orders of this Honourable Court made on the 13 October 2016 and the 27 April 2017, shall upon receipt be divided as between the applicant and the intervenor, in reduction in the quantum of the judgment debt and costs owed by the respondent to the intervenor and as against first the judgment then the determined costs, in accordance with the percentages provided in these orders.
INJUNCTIONS
14.
The respondent be and is hereby restrained from dealing with or disposing of or encumbering his interest, if any, in any asset owned or received by him pursuant to court order in these proceedings excluding any monies received by the respondent by way of pension from the date of this order.
15.
The intervenor be and is hereby restrained from dealing with or encumbering or attempting to execute against any asset which it is contemplated will be transferred to the applicant pursuant to these orders.
16.
The parties shall do all acts and things and sign or execute any and all documents that may be required to give effect to the terms and intent of this order.
17.
The process of the sale of any property and the payment of money pursuant to these orders whether by or on behalf of the applicant, respondent and/or the intervenor shall be governed by the provisions of the Trustee Act 1898 (Tas).
SECTION 106A OF THE FAMILY LAW ACT POWER
18.
Pursuant to Section 106A of the Family Law Act 1975, the Registrar of the Family Court of Australia at Hobart is hereby appointed to execute all deeds and documents in the name of the respondent and do all acts and things necessary to give validity and operation to all such deeds and documents so as to effect the implementation of the terms of this order.
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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