FEDERAL CIRCUIT COURT OF AUSTRALIA
| NOLTE & AGUILAR | [2019] FCCA 1202 |
| Catchwords: FAMILY LAW – Property proceedings where 4 children have significant disabilities – contributions similar – s.75(2) factors more significant – relatively small pool of assets – Husband has significant earning capacity – Wife devoted to care of disabled children and not free to work – unusual facts. |
| Legislation: Family Law Act 1975 (Cth) ss.79(2), 79(4)(a), 79(4)(b), 79(4)(c), 79(4)(d), 79(4)(e), 75(2) |
| Cases cited: Jewel & Jewel [2013] FCWA 81 AJO v GRO (2005) FLC 93-218 |
| Applicant: | MS NOLTE |
| Respondent: | MR AGUILAR |
| File Number: | MLC 9472 of 2014 |
| Judgment of: | Judge Curtain |
| Hearing dates: | 24, 25 & 26 September 2018 |
| Date of Last Submission: | 20 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 10 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hancock |
| Solicitors for the Applicant: | Starnet Legal Pty Ltd |
| Counsel for the Respondent: | Dr Parker |
| Solicitors for the Respondent: | Amicus Lawyers |
ORDERS
That the wife pay to the husband the sum of $27,000 (“the payment”) within 120 days (“the date”).
That contemporaneously with the payment:
(a)The husband do all acts and things and sign all such documents as may be required to transfer to the wife at her expense all of his right, title and interest in the real property situate at and known as Property A (“the real property”); and
(b)The wife indemnify the husband against all payments and liabilities, all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
That in the event that the whole payment has not been made by the date then the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)First to pay all costs, commissions and expenses of the sale;
(b)Secondly to discharge encumbrances affecting the real property;
(c)Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 7.5 per centum per annum adjusted monthly from the date to the husband; and
(d)Fourthly the balance to the wife.
That pending the payment or completion of the sale:
(a)The wife has the sole right to occupy the real property and during such right of occupation the wife pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party, save the wife be permitted to borrow against the real property to pay the husband.
That the husband have the sole…
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- AGLC
- NOLTE & AGUILAR [2019] FCCA 1202
- Case
- [2019] FCCA 1202
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were to determine the respective contributions of the parties to the marriage and the acquisition, conservation, and improvement of the matrimonial property, and to consider the future needs and responsibilities of each party under section 75(2) of the *Family Law Act 1975* (Cth). The court was required to weigh these factors in light of the wife's primary role in caring for the disabled children, which significantly limited her capacity to engage in paid employment, against the husband's substantial earning capacity.
Judge Curtain reasoned that while the parties' direct contributions to the marriage and property were similar, the s.75(2) factors were of greater significance due to the wife's ongoing and substantial care responsibilities for the children. The court applied established principles of property adjustment in family law, acknowledging the unique challenges presented by the children's disabilities. The court ordered that the wife pay the husband $27,000 within 120 days. Contemporaneously with this payment, the husband was to transfer his interest in the real property to the wife at her expense, with the wife indemnifying him against all liabilities associated with the property. In the event the payment was not made, the real property was to be sold, with proceeds applied first to sale costs, then encumbrances, then the outstanding payment to the husband with interest, and finally any balance to the wife. The wife was granted sole occupation of the property pending payment or sale, responsible for outgoings. The court also made orders regarding motor vehicles, superannuation, and other personal property, severing any joint tenancies.
Orders
Orders of the court
1.
That the wife pay to the husband the sum of $27,000 (“the payment”) within 120 days (“the date”).
2.
That contemporaneously with the payment:
(a) The husband do all acts and things and sign all such documents as may be required to transfer to the wife at her expense all of his right, title and interest in the real property situate at and known as Property A (“the real property”); and
(b) The wife indemnify the husband against all payments and liabilities, all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
3.
That in the event that the whole payment has not been made by the date then the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)First to pay all costs, commissions and expenses of the sale;
(b) Secondly to discharge encumbrances affecting the real property;
(c) Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 7.5 per centum per annum adjusted monthly from the date to the husband; and
(d) Fourthly the balance to the wife.
4.
That pending the payment or completion of the sale:
(a) The wife has the sole right to occupy the real property and during such right of occupation the wife pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b) The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c) Neither party encumber the real property without the consent in writing of the other party, save the wife be permitted to borrow against the real property to pay the husband.
5.
That the husband have the sole interest in the Motor Vehicle B in his possession and the wife have the sole interest in her Motor Vehicle C in her possession.
6.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) Each party be 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 (the furniture, personal possessions, and the like chattels in the real property being deemed to be in the possession of the wife);
(b) The husband have the sole interest in the superannuation benefits belonging to or earned by him with Super Fund D;
(c) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
7.
That the Application of the wife and Response of the husband is otherwise 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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