NOLTE & AGUILAR - [2019] FCCA 1202

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
Sebastian & Sebastian (No.5) [2013] Fam CA 191
Baglio & Baglio [2013] Fam CA 105
Waters & Jurek (1995) FLC 92-635
Clauson v Clauson [1995] FLC 92-595
Vass & Vass [2015] Fam CAFC 51
Trevi v Trevi [2018] Fam FAFC 173
Fleck v Fleck [2014] FCCA 2595
Bucknell v Bucknell [2009] Fam CAFC 177

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…

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

AGLC: NOLTE & AGUILAR [2019] FCCA 1202
Case: [2019] FCCA 1202
Decision Date: 10 May 2019

CaseChat Overview and Summary

In property proceedings before Judge Curtain, the court considered the division of a relatively small asset pool between a husband and wife. The central dispute revolved around the appropriate allocation of property, particularly given the unusual circumstances of the case, which involved four children with significant disabilities.

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

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 interest in the Motor Vehicle B in his possession and the wife have the sole interest in her Motor Vehicle C in her possession.

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.

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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