Ng and Vilosovic and Anor - [2009] FamCA 543

FAMILY COURT OF AUSTRALIA

NG & VILOSOVIC AND ANOR

[2009] FamCA 543

FAMILY LAW – PROPERTY – Undefended Hearing – Property proceedings under the Domestic Relationships Act 1994 (ACT) – Significantly greater contribution of the applicant against the respondent to the pool of assets of the relationship – Unable to take into account the respondent’s apparent illness as a factor necessitating adjustment under s 19(2) of the Act because of a lack of evidence.
HELD – Distribution of property 75 per cent to 25 per cent in favour of the applicant – Costs awarded against the respondent for time thrown away when undefended hearing initially set down and for the proceedings generally

Domestic Relationships Act 1994 (ACT) ss 15(1), 19(2)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(3)
Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 4(2)

Crellin v Robertson [2004] ACTSC 92

APPLICANT:

Ms Ng

RESPONDENT:

Mr Vilosovic

SECOND RESPONDENT:

Mr Tene

FILE NUMBER:

CAC

556

2009

DATE DELIVERED:

12 June 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

12 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE APPLICANT:

Ms Campbell

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

No appearance

COUNSEL FOR THE SECOND

RESPONDENT:

No appearance

SOLICITOR FOR THE SECOND

RESPONDENT:

No appearance

Orders

The applicant be declared sole owner of all money held in the trust account at William Heague Barristers & Solicitors and Mr Heague be directed to release the money to Ms Ng within seven days from the date of these Orders.
Within seven days of the date of these Orders, the first respondent sign all documents to transfer to the applicant the Honda CRV motor vehicle, registration number … from either the original purchaser or from the first respondent.
The first respondent will do all things to sign all documents to transfer to the second respondent a truck, registration number Y… and the applicant will cause her brother to transfer to the second respondent the second truck, registration number A…
Within 14 days of the date of these Orders the second respondent pay to the applicant the sum of $7,500 and upon payment of such money the applicant will sign all documents to transfer the Ford Falcon Utility, registration number 3… to the first respondent.
Simultaneously with Order 4 above the second respondent will re-register the Ford Falcon Utility referred to in Order 4 above and hand to the applicant the registration plates 3… and she will be declared sole owner of those number plates.
The applicant be declared sole owner of the Haynes Signature Boat, registration number …, and the boat trailer registered number… and the first respondent will cause his mother to permit the removal of the boat and trailer from the respondent mother's garage at the applicant's cost within 14 days of the date of these Orders and hand to the applicant the boat's keys, receipts and all registration documents associated with the boat and trailer.

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.

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Details

Case: [2009] FamCA 543
Decision Date: 12 June 2009

CaseChat Overview and Summary

This matter concerned an application before Faulks DCJ in the Magistrates Court of the Australian Capital Territory, brought by Ms Ng against Mr Vilosovic and another respondent. The dispute involved the division of property following the breakdown of a domestic relationship. The court was required to make orders concerning the ownership and transfer of various assets, including money held in a trust account, vehicles, a boat, and number plates.

The primary legal issues before the court were to determine the rightful ownership of the disputed assets and to make orders for their division and transfer between the parties. This included resolving claims over financial assets, motor vehicles, and a boat, as well as addressing the implications of third-party involvement, specifically the first respondent's mother, in relation to the boat. The court also considered the limitations of its jurisdiction under the Domestic Relationships Act 1994 (ACT) in making orders binding on non-parties.

Faulks DCJ applied principles of property division within the context of domestic relationship breakdowns. The court made detailed orders assigning sole ownership of specific assets to either the applicant or the first respondent, including directing the transfer of vehicles and the distribution of funds. Notably, the court acknowledged that its powers under the Domestic Relationships Act 1994 (ACT) did not extend to making orders directly binding on the first respondent's mother, unlike provisions available under the Family Law Act 1975 (Cth). The court's orders aimed to achieve a final division of the property, with each party retaining certain assets and being responsible for specific liabilities.

Orders

Orders of the court

The applicant be declared sole owner of all money held in the trust account at William Heague Barristers & Solicitors and Mr Heague be directed to release the money to Ms Ng within seven days from the date of these Orders.

Within seven days of the date of these Orders, the first respondent sign all documents to transfer to the applicant the Honda CRV motor vehicle, registration number … from either the original purchaser or from the first respondent.

The first respondent will do all things to sign all documents to transfer to the second respondent a truck, registration number Y… and the applicant will cause her brother to transfer to the second respondent the second truck, registration number A…

Within 14 days of the date of these Orders the second respondent pay to the applicant the sum of $7,500 and upon payment of such money the applicant will sign all documents to transfer the Ford Falcon Utility, registration number 3… to the first respondent.

Simultaneously with Order 4 above the second respondent will re-register the Ford Falcon Utility referred to in Order 4 above and hand to the applicant the registration plates 3… and she will be declared sole owner of those number plates.

The applicant be declared sole owner of the Haynes Signature Boat, registration number …, and the boat trailer registered number… and the first respondent will cause his mother to permit the removal of the boat and trailer from the respondent mother's garage at the applicant's cost within 14 days of the date of these Orders and hand to the applicant the boat's keys, receipts and all registration documents associated with the boat and trailer.

I note that if this matter had been brought under Pt VIIIAA of the Family Law Act 1975 (Cth) it would have provided an opportunity for me to make an Order that would have been binding on the respondent's mother and required her, subject to her receiving appropriate natural justice, to comply with the Order. There is no equivalent provision under the Domestic Relationships Act 1994 (Cth) and I am accordingly not able to make a facilitating Order of that sort.

As soon as practicable after her obtaining possession of the boat, the applicant will cause the boat, including the trailer, to be sold and will pay there from to the respondent, as soon as that sale has been completed and she has received the funds, the sum of $19,000. The balance of money received from the sale of the boat will be retained by the applicant as her property pursuant to these orders.

The second respondent will, by consent, pay to the applicant $87,500 within 30 days of the date of these Orders.

10.

The first respondent be declared sole owner of the money from the sale of the collectable number plates.

11.

Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders, each party shall be solely entitled, to the exclusion of the other, to all property including:

(a) Choses-in‑action in possession of such party as at the date of these Orders.

(b) Money standing to the credit of the parties in the bank account that has become property of the party in whose name it is deposited, again subject to these Orders.

(c) Each party hereby foregoes any claim they may have in any superannuation benefits belonging to or earned by the other.

(d) All insurance policies will become the sole property of the owner named there under.

(e) Each party shall be solely liable for and shall indemnify the other against any liability, encumbering any item of property to which that party is entitled pursuant to these Orders.

(f) If any party refuses or is unable and neglects to sign any documents necessary to give effect to the terms of these orders within 14 days or written request to do so, the Registrar of the Family Court in Canberra is hereby appointed to execute all deeds and documents in the name of the relevant party pursuant to s 26 of the Domestic Relationships Act 1994 (ACT).

12.

The matter is removed from the pending cases inventory.

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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