FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ngueng & Yancey [2021] FedCFamC2F 255
File number(s): LNC 216 of 2020 Judgment of: JUDGE TURNBULL Date of judgment: 28 October 2021 Catchwords: FAMILY LAW – property settlement – short marriage of approximately 6 years – disagreement as to the length of the marriage – contributions – where significant financial disparity between the parties – wife spent 15 months of 6 year relationship overseas – wife made significant homemaking contributions – husband made overwhelming financial contributions – global assessment of assets in short marriage
EVIDENCE LAW – Blatch v Archer – Jones v Dunkel – determination as to whether loan exists – determination as to whether debt remains outstanding on the basis of purported loan – purported creditor not called to give evidence
Legislation: Family Law Act 1975 (Cth), ss 79(1), 79(2), 79(3), 75(2)
Evidence Act 1995 (Cth), ss 140, 164(1), 69
Cases cited: Australian Securities and Investments Commission v Rich (2009) NSWSC 1229
Beck & Beck (1983) FLC 91-318
Blatch v Archer (1774) 98 ER 969
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Clauson & Clauson (1995) FLC 92-595
Coghlan & Coghlan [2005] FamCA 429
Dawes & Dawes [1989] FamCA 71
Dickons v Dickons (2012) FamCAFC 154
GBT & BJT [2005] FamCA 683
Hickey & Hickey& Attorney-General for the Commonwealth of Australia [2003] FamCA 395
Jabour & Jabour [2019] FamCAFC 78
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Lane & Wharton [2010] FamCA 18
Lavell & Lavell (2012) FamCA 34
Lotta & Lotta [2017] FamCA 916
Marsh & Marsh [2014] FamCAFC 24
Mitchell & Mitchell (1995) FLC 92-601
Norbis & Norbis [1986] HCA 17; 161 CLR 513
Pandelis & Pandelis [2018] FamCAFC 66
Stanford & Stanford (2012) 247 CLR 108
Wallis & Manning (2017) FamCAFC 14
Division: Division 2 Family Law Number of paragraphs: 242 Date of hearing: 3 August 2021 Counsel for the Applicant: Ms K Mooney Solicitor for the Applicant: Friend & Edwards Counsel for the Respondent: Mr G Tucker Solicitor for the Respondent: Walsh Day James Mihal Pty Ltd ORDERS
LNC 216 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NGUENG
ApplicantAND: MR YANCEY
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
28 OCTOBER 2021
THE COURT ORDERS:
1.That within 60 days of the date of this order the Husband pay the Wife the sum of $80,552.67;
2.That within 30 days of the date of this order the Wife do all acts and sign all such documents to withdraw the caveats lodged by her over the Husband’s properties, including providing to the Husband’s solicitors all documentation and remuneration necessary to effect the removal of those caveats;
3.That within 60 days of the date of this order the Husband pay the Wife the sum of $2,640.00, being the Husband’s share of the valuation fees as agreed;
4.That orders 4(a) to 4(e) inclusive are binding on the trustee of B Superannuation Fund (‘Superannuation Fund’);
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- Ngueng & Yancey [2021] FedCFamC2F 255
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- [2021] FedCFamC2F 255
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CaseChat Overview and Summary
The court had to determine the appropriate length of the marriage, the existence of a loan, and the valuation of the assets and liabilities of the parties. Additionally, the court needed to make a global assessment of the assets and make a superannuation splitting order in accordance with the Family Law Act 1975 (Cth). The court also needed to consider the contributions of each party, both financial and non-financial, to the marriage.
In its judgment, the court found that the marriage lasted for approximately six years, despite the wife spending 15 months overseas. The court accepted that a loan had been given by the husband to the wife but found that it had been repaid. The court considered the contributions of each party, finding that the husband made overwhelming financial contributions, while the wife made significant homemaking contributions. The court then made a global assessment of the assets and ordered the husband to pay the wife a lump sum of $80,552.67. The court also made a superannuation splitting order and ordered the transfer of certain motor vehicles between the parties. Finally, the court ordered the wife to remove caveats over the husband’s properties and for the parties to indemnify each other for any outstanding liabilities.
The court ordered that the husband pay the wife $80,552.67 within 60 days, the wife remove caveats over the husband’s properties within 30 days, and the husband pay the wife $2,640.00, being the husband’s share of the valuation fees as agreed, within 60 days. The court also made a superannuation splitting order and ordered the transfer of certain motor vehicles between the parties. The court ordered the wife to collect her remaining personal belongings from the husband’s property within 28 days and that the parties indemnify each other for any outstanding liabilities.
Orders
Orders of the court
LNC 216 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS NGUENG
Applicant
AND:
MR YANCEY
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
28 OCTOBER 2021
THE COURT ORDERS:
1. That within 60 days of the date of this order the Husband pay the Wife the sum of $80,552.67;
2. That within 30 days of the date of this order the Wife do all acts and sign all such documents to withdraw the caveats lodged by her over the Husband’s properties, including providing to the Husband’s solicitors all documentation and remuneration necessary to effect the removal of those caveats;
3. That within 60 days of the date of this order the Husband pay the Wife the sum of $2,640.00, being the Husband’s share of the valuation fees as agreed;
4. That orders 4(a) to 4(e) inclusive are binding on the trustee of B Superannuation Fund (‘Superannuation Fund’);
(a) That a superannuation splitting order be made in relation to the interest of the Respondent Husband in the Superannuation Fund;
(b) That in accordance with section 90XT(4) of the Family Law Act 1975 (Cth), the base amount of $30,416.00 be allocated to the Applicant Wife out of the interest of the Husband in the Superannuation Fund (Base Amount);
(c) That whenever a splittable payment in respect of the superannuation interest of the Husband is payable in the Superannuation Fund:
(i) under section 90XT(1)(a) of the Family Law Act 1975 (Cth), the Applicant Wife be entitled to be paid an amount calculated in accordance with part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the Base Amount; and
(ii) there be a corresponding reduction in the entitlement of the Respondent Husband to whom the splittable payment would have been made but for this order;
(d) That order 4(c), has effect from the Operative Time;
(e) That for the purpose of order 4(d), the Operative Time is 4 business days after the date of service of these orders on the trustee of the Superannuation Fund;
5. That the Husband transfer to the Wife all his right, title and interest in the Motor vehicle 1 currently in the Wife’s possession;
6. That the Wife transfer to the Husband all of her right, title and interest in the Motor vehicle 2 currently in the Husband’s possession;
7. THAT within twenty-eight (28) days of the date of the order, and on a date and time agreed with the Husband, the Wife will attend C Road, Suburb D, and enter only the garage of that property, to collect the remainder of her personal belongings, and then immediately leave that property;
8. That subject to this order, the parties otherwise retain all property, real estate, bank accounts financial resources and liabilities in their names and/or possession, and for the purpose bank accounts are deemed to be in the possession of the party whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, and superannuation entitlements are deemed to be in the possession of the person who is named as the worker therein and service pensions are deemed to be the property of the person in receipt of the same;
9. That the parties indemnify each other as to any outstanding liability encumbering any item of property to which that party is entitled pursuant to this order and in relation to any outstanding debts otherwise owed by them as at the date of this order;
10. That the parties undertake all things, do all acts and sign all relevant documentation to give effect to the terms of this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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