Norman and Norman - [2009] FamCA 239

FAMILY COURT OF AUSTRALIA

NORMAN & NORMAN

[2009] FamCA 239

FAMILY LAW – PROPERTY – Alteration of property interests – Property acquired before marriage – Property acquired after separation – Contributions – Just and equitable

Family Law Act 1975 (Cth)

APPLICANT:

Ms Norman

RESPONDENT:

Mr Norman

FILE NUMBER:

CSC

985

2007

DATE DELIVERED:

25 March 2009

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Watts J

HEARING DATE:

24 – 25 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McPherson

SOLICITOR FOR THE APPLICANT:

Bruce K Gillan

COUNSEL FOR THE RESPONDENT:

Mr Fellows

SOLICITOR FOR THE RESPONDENT:

Williams Graham Carman

Orders

Order 3 made 26 May 2008 is discharged.
Pursuant to s. 79 of the Family Law Act an order be made in the terms of paragraphs 3 to 12 as set out below.
The husband will be declared to have sole right, title and interest in the following assets:-
3.1.P Street property
3.2.ANZ share trade account …
3.3.ANZ access savings account …
3.4.Subaru Forrester 2006
3.5.Catamaran
3.6.4m Quintrex boat and 25ph motor
3.7.Vemeer wood chipper
3.8.Box trailer
3.9.Husband’s superannuation – Q Super
3.10.Proceeds of sale of Telstra shares
3.11.Proceeds of sale of hovercraft
3.12.Proceeds of sale of Toyota Hilux utility.
The wife be declared to have sole right, title and interest in the following assets:-
4.1.R Street proeprty
4.2.NAB general savings a/c
4.3.NAB flexiDirect a/c …
4.4.Bendigo cash management a/c …
4.5.Suncorp term deposit a/c
4.6.Kia Grand Carnival 2007
4.7.Wife’s superannuation – Q Super.
The wife will have sole responsibility for the mortgage to the ANZ Bank in relation to the property at R Street.
On or before the 6^th May 2009:
6.1.the wife shall transfer to the husband all her right title and interest in the property at L Street being Lot … on Registered Plan …; and
6.2.simultaneously with such transfer the husband shall pay to the wife the sum of $228,763.00.
On or before 8^th April 2009 the husband and wife shall:
7.1.advise N Realty (“the agent”) that the agent is released from any obligation under clause 3 of the Order of this Court dated 26^th May 2008;
7.2.authorise the agent to pay to the trust account of the solicitors for the husband, Williams Graham & Carman such sum of money as they may be holding on behalf of the husband and wife (presently estimated to be $22,138).
On or before 8^th April 2009 the husband shall sign all such documents as may be prepared by the solicitors for the wife sufficient to transfer to the wife all of the husband’s right title and interest in:-
8.1.the following shares held solely by him

Number of shares

Telstra Corporation

             8190

Woolworths

             1526

BHP Billiton

               552

ANZ Bank

            5,429

Bluescope Ltd

               910

Suncorp Metway Ltd

             5235

8.2.the following shares held jointly with the wife:

Number of shares

Telstra Corporation

            2,000

Suncorp Metway Ltd

               550

Wesfarmers

                 97

ANZ Bank

               213

and the husband’s right title and interest in such dividends as may be due…

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 Norman and Norman

Details

AGLC: Norman and Norman [2009] FamCA 239
Case: [2009] FamCA 239
Decision Date: 25 March 2009

CaseChat Overview and Summary

In the matter of *Norman and Norman*, Watts J of the Family Court of Australia was required to determine property settlement orders between a husband and wife. The dispute concerned the division of various assets and liabilities held by the parties.

The court was tasked with determining how the parties' property and financial resources should be divided, including real estate, shares, vehicles, and superannuation interests. The court also had to consider the allocation of responsibility for existing debts and the potential sale of certain assets if specific payment obligations were not met.

Watts J made orders pursuant to section 79 of the *Family Law Act 1975* (Cth). The court declared that the husband would have sole right, title, and interest in a specified list of assets, including the P Street property, various bank accounts, vehicles, and his superannuation. Conversely, the wife was declared to have sole right, title, and interest in a different set of assets, including the R Street property, other bank accounts, a vehicle, and her superannuation. The wife was made solely responsible for the mortgage on the R Street property. The orders also stipulated that the wife would transfer her interest in the L Street property to the husband in exchange for a payment of $228,763.00. Provisions were made for the release of an agent and the distribution of funds held by the agent. The husband was ordered to transfer certain shares to the wife, and provisions were made for the accounting of any dividends received after a specified date. The husband was also ordered to provide the wife with a specific cheque. In the event the payment for the L Street property was not made, the property was to be sold, with the net proceeds distributed with a 62% share to the husband and 38% to the wife after costs. Each party was to be solely entitled to other property in their possession, and each was to indemnify the other for associated debts. The Registrar was appointed to execute documents if a party refused to do so. The wife was granted leave to make a partial application for costs concerning parenting matters, but her application for costs in relation to parenting was dismissed.

Orders

Orders of the court

Order 3 made 26 May 2008 is discharged.

Pursuant to s. 79 of the Family Law Act an order be made in the terms of paragraphs 3 to 12 as set out below.

The husband will be declared to have sole right, title and interest in the following assets:-

3.1. P Street property

3.2. ANZ share trade account …

3.3. ANZ access savings account …

3.4. Subaru Forrester 2006

3.5. Catamaran

3.6. 4m Quintrex boat and 25ph motor

3.7. Vemeer wood chipper

3.8. Box trailer

3.9. Husband’s superannuation – Q Super

3.10. Proceeds of sale of Telstra shares

3.11. Proceeds of sale of hovercraft

3.12. Proceeds of sale of Toyota Hilux utility.

The wife be declared to have sole right, title and interest in the following assets:-

4.1. R Street proeprty

4.2. NAB general savings a/c

4.3. NAB flexiDirect a/c …

4.4. Bendigo cash management a/c …

4.5. Suncorp term deposit a/c

4.6. Kia Grand Carnival 2007

4.7. Wife’s superannuation – Q Super.

The wife will have sole responsibility for the mortgage to the ANZ Bank in relation to the property at R Street.

On or before the 6th May 2009:

6.1. the wife shall transfer to the husband all her right title and interest in the property at L Street being Lot … on Registered Plan …; and

6.2. simultaneously with such transfer the husband shall pay to the wife the sum of $228,763.00.

On or before 8th April 2009 the husband and wife shall:

7.1. advise N Realty (“the agent”) that the agent is released from any obligation under clause 3 of the Order of this Court dated 26th May 2008;

7.2. authorise the agent to pay to the trust account of the solicitors for the husband, Williams Graham & Carman such sum of money as they may be holding on behalf of the husband and wife (presently estimated to be $22,138).

On or before 8th April 2009 the husband shall sign all such documents as may be prepared by the solicitors for the wife sufficient to transfer to the wife all of the husband’s right title and interest in:-

8.1. the following shares held solely by him

Number of shares

Telstra Corporation

8190

Woolworths

1526

BHP Billiton

552

ANZ Bank

5,429

Bluescope Ltd

910

Suncorp Metway Ltd

5235

8.2. the following shares held jointly with the wife:

Number of shares

Telstra Corporation

2,000

Suncorp Metway Ltd

550

Wesfarmers

ANZ Bank

213

and the husband’s right title and interest in such dividends as may be due and unpaid by the above-named companies as at 25th March 2009.

In the event that the husband receives, on or after 25th March 2009, any dividend from the companies named in paragraph 8 he shall forthwith account for the same to the wife.

10.

The husband shall forthwith hand to the wife National Australia Bank Cheque 58619 5887 dated 26/2/09 for an amount of $3,019.87.

11.

In the event that the amount in paragraph 6.2 is not paid within the time set out in that paragraph, both parties shall do all things and sign all necessary documents to sell by private treaty the property at L Street at a price to be agreed upon between the parties and failing agreement at a price to be determined by Heron Todd White and that the net proceeds of sale be distributed in the following way:-

11.1. Payment of the costs of sale including agent’s fees and legal expenses.

11.2. Payment to the wife of 38 percent of the net proceeds of sale.

11.3. Payment to the husband of 62 percent of the net proceeds of sale.

12.

Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.

13.

If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Cairns Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

COSTS

14.

The wife be granted leave to make a partial application for costs in relation to the parenting aspects of the matter.

15.

The wife’s application for costs in relation to parenting be dismissed.

Notation

16.

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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