Noakes and Fadden - [2016] FCCA 3134

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOAKES & FADDEN

[2016] FCCA 3134

Catchwords:
FAMILY LAW – Property – division of assets of modest value – ridiculously small assets ignored for purpose of assessing overall pool.

Legislation:

Family Law Act 1975, ss.60CC, 75(2), 79(4)

Cases cited:

AON Risk Services Australia Ltd v Australian National University (2009)
239 CLR 175
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Kennon v Spry [2008] HCA 56
Leary v Federal Commissioner of Taxation (1980) 32 ALR 221
Re F: Litigants in Person Guidelines [2011] FamCA 348
Stanford v Stanford [2012] HCA 52
Stephens v Stephens [2009] FamCAFC 240

Applicant:

MR NOAKES

Respondent:

MS FADDEN

File Number:

MLC 10377 of 2014

Judgment of:

Judge Wilson

Hearing date:

27 April 2016

Date of Last Submission:

27 April 2016

Delivered at:

Melbourne

Delivered on:

6 December 2016

REPRESENTATION

Applicant in person

Respondent in person

ORDERS

The balance of the net proceeds of sale currently held on trust by Bardo & Erci Lawyers are applied as follows -
(a)two-thirds of the balance plus two-thirds of the total interest accrued on the balance (if any) to the wife; and
(b)one-third of the balance plus one-third of the total interest accrued on the balance (if any) to the husband,
with such funds to be released to the parties by Bardo & Erci Lawyers within 14 days of the date of these orders.
As described in the reasons for judgment, each party is liable for 50% of the following liabilities –
(a)(omitted) Frequent Flyer credit card;
(b)(omitted) MasterCard;
(c)(omitted) Bank Account;
(d)(omitted) Bank Account credit card;
(e)(omitted) MasterCard;
(f)(omitted) Mastercard; and
(g)(omitted) MasterCard.
As described in the reasons for judgment, the wife is solely liable for the following liabilities –
(a)the (omitted) overdraft;
(b)(omitted) Bank Account credit card;
(c)the debt to (omitted) Accountants;
(d)the legal fees due to Bardo & Erci Lawyers;
(e)(omitted) business car finance;
(f)amount owing to ASIC;
(g)(omitted) Visa credit card;
(h)any liabilities attached to the business (business omitted) and (business omitted).
As described in the reasons for judgment, the husband is solely liable for the (omitted) Bank variable rate loan.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies or transfer of property due under these or any subsequent orders -
(a)each party is solely entitled, to the exclusion of the other, to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any bank account are to become the property of the party in whose name such bank account is held;
(c)each party is solely liable for and indemnify the other against any liability in that party’s sole name; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
All extant property applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Noakes & Fadden is approved pursuant to s.121(9)(g) of the Family…

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 Noakes and Fadden

Details

AGLC: Noakes and Fadden [2016] FCCA 3134
Case: [2016] FCCA 3134
Decision Date: 6 December 2016

CaseChat Overview and Summary

The matter before Judge Wilson concerned the division of property and liabilities between a husband and wife. The dispute centred on how to distribute the net proceeds of sale held on trust and to allocate responsibility for various financial liabilities.

The court was required to determine the appropriate distribution of the net proceeds of sale held by Bardo & Erci Lawyers between the husband and wife. Furthermore, the court needed to ascertain which party would be solely liable for specific debts, and which liabilities would be shared equally between them. The court also had to address the disposition of all other extant property and liabilities not specifically mentioned in the orders.

Judge Wilson ordered that two-thirds of the net proceeds of sale, along with accrued interest, be paid to the wife, and the remaining one-third to the husband. The court also stipulated that the wife would be solely liable for a list of specified debts, including an overdraft, credit card debts, professional fees, business-related finance, and amounts owing to ASIC. The husband was made solely liable for a specific bank loan. Certain other liabilities were to be shared equally between the parties. The orders further provided that each party would be solely entitled to property in their possession, with bank accounts becoming the property of the account holder, and each party indemnifying the other against liabilities in their sole name. Joint tenancies were expressly severed. All outstanding property applications were dismissed.

Orders

Orders of the court

The balance of the net proceeds of sale currently held on trust by Bardo & Erci Lawyers are applied as follows -

(a) two-thirds of the balance plus two-thirds of the total interest accrued on the balance (if any) to the wife; and

(b) one-third of the balance plus one-third of the total interest accrued on the balance (if any) to the husband,

with such funds to be released to the parties by Bardo & Erci Lawyers within 14 days of the date of these orders.

As described in the reasons for judgment, each party is liable for 50% of the following liabilities –

(a) (omitted) Frequent Flyer credit card;

(b) (omitted) MasterCard;

(d) (omitted) Bank Account credit card;

(e) (omitted) MasterCard;

(f) (omitted) Mastercard; and

(g) (omitted) MasterCard.

As described in the reasons for judgment, the wife is solely liable for the following liabilities –

(a) the (omitted) overdraft;

(b) (omitted) Bank Account credit card;

(d) the legal fees due to Bardo & Erci Lawyers;

(e) (omitted) business car finance;

(f) amount owing to ASIC;

(g) (omitted) Visa credit card;

(h) any liabilities attached to the business (business omitted) and (business omitted).

As described in the reasons for judgment, the husband is solely liable for the (omitted) Bank variable rate loan.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies or transfer of property due under these or any subsequent orders -

(a) each party is solely entitled, to the exclusion of the other, to all other property (including choses-in-action) in the possession of such party as at the date of these orders;

(b) monies standing to the credit of the parties in any bank account are to become the property of the party in whose name such bank account is held;

(d) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

All extant property applications are dismissed.

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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