Ogden and Ogden - [2010] FMCAfam 865

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OGDEN & OGDEN

[2010] FMCAfam 865

FAMILY LAW – Property – long marriage – whether wife’s interest in Family Trust forms part of the property pool – analysis of Kennon v Spry and subsequent authorities – wife’s interest in Family Trust found to constitute “property” as defined under the Family Law Act 1975 – determined that an asset by asset approach be taken to enable a just and equitable distribution of the parties’ assets.

Family Law Act 1975, ss.4(1), 75, 79, 106B
Social Security Act 1991

Hayne and Hayne (1977) FLC 90-265
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
In the Marriage of Kelly (No.2) (1981) 7 Fam LR 762
Garrett and Garrett (1984) FLC 91-539
In the Marriage of Ashton(1986) 11 Fam LR 457
Norbis v Norbis (1986) FLC 91-712
Davidson & Davidson (1990) 14 Fam LR 817
In Marriage of Goodwin (1990) 101 FLR 386
Harris & Harris (1991) 15 Fam LR 26
M v M [1998] FamCA 42
C & C [1998] FamCA 143
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Re NHC & RHC (2004) FLC 93-204
M and M [2006] FamCA 913
Kennon v Spry (2008) FLC93-388
Kennon v Spry [2008] HCA 56

Applicant:

MS OGDEN

Respondent:

MR OGDEN

File Number:

MLC 9621 of 2009

Judgment of:

Bender FM

Hearing date:

11 August 2010

Date of Last Submission:

11 August 2010

Delivered at:

Melbourne

Delivered on:

5 November 2010

REPRESENTATION

Counsel for the Applicant:

Ms Williams

Solicitors for the Applicant:

Wisewould Mahony Lawyers

Counsel for the Respondent:

Self-represented

Solicitors for the Respondent:

Self-represented

ORDERS

The parties forthwith place on the market for sale the property situate at and known as Suburb B, being the land more particularly described in Certificate of Title Volume [omitted] (“the Suburb B sale”).
The Suburb B sale shall be conducted by a real estate agent agreed between the parties and failing agreement as is nominated by the President of the Real Estate Institute of Victoria and on such terms and conditions and at such reserve price as is agreed between the parties and failing agreement as determined by the selling agent.
The parties forthwith place on the market for sale the property situate at and known as Suburb A, being the land more particularly described in Certificate of Title Volume [omitted] (“the Suburb A sale”).
The Suburb A sale shall be conducted by a real estate agent agreed between the parties and failing agreement as is nominated by the President of the Real Estate Institute of Victoria and on such terms and conditions and at such reserve price as is agreed between the parties and failing agreement as determined by the selling agent.
On or before 30 November 2010, the wife shall notify the husband in writing of her intention to either appoint or not appoint a separate Trustee in respect to Class B of the P Trust pursuant to Clause 21(vi) of the…

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 Ogden and Ogden

Details

AGLC: Ogden and Ogden [2010] FMCAfam 865
Case: [2010] FMCAfam 865
Decision Date: 5 November 2010

CaseChat Overview and Summary

The case of Ogden and Ogden was heard in the Family Court of Australia. The dispute between the parties centred on the division of their assets, including two properties (Suburb A and Suburb B) and a trust fund (P Trust). The court was required to determine the terms under which these assets would be sold and how the proceeds would be distributed. Additionally, the court had to decide on the appointment of a trustee for a portion of the trust fund and the division of personal chattels.

The primary legal issues before the court involved the interpretation and enforcement of a property settlement agreement, the division of real and personal property, and the management of trust funds. Specifically, the court needed to decide how the properties should be marketed and sold, the terms of the sale, and the distribution of the sale proceeds. The court also had to consider the wife's intention to appoint a separate trustee for a portion of the trust fund and the implications of such an appointment on the distribution of the trust assets. Furthermore, the division of personal chattels and the consequences for non-compliance with the court's orders were examined.

The court ruled that the properties should be placed on the market for sale by a real estate agent agreed upon by the parties, or as nominated by the President of the Real Estate Institute of Victoria if the parties could not agree. The sale terms and conditions, including the reserve price, were to be determined by mutual agreement or by the selling agent in case of disagreement. The court further ordered the distribution of the sale proceeds, taking into account the wife's decision on appointing a separate trustee for a portion of the trust fund. If the wife appointed a separate trustee, the court specified the distribution of the trust fund assets and the sale proceeds. If no separate trustee was appointed, the wife retained her interest in the trust fund, and the sale proceeds were to be distributed differently. The personal chattels were to be divided equally by agreement, or by taking turns to choose items if an agreement could not be reached. The court also appointed a Registrar to enforce the orders in case of non-compliance and ordered the defaulting party to compensate the other party for any costs and damages incurred.

The final orders mandated the sale of the properties and the distribution of the proceeds based on the wife's decision regarding the appointment of a separate trustee. The court also outlined the process for dividing personal chattels and provided mechanisms for enforcing compliance with the orders.

Orders

Orders of the court

The parties forthwith place on the market for sale the property situate at and known as Suburb B, being the land more particularly described in Certificate of Title Volume [omitted] (“the Suburb B sale”).

The Suburb B sale shall be conducted by a real estate agent agreed between the parties and failing agreement as is nominated by the President of the Real Estate Institute of Victoria and on such terms and conditions and at such reserve price as is agreed between the parties and failing agreement as determined by the selling agent.

The parties forthwith place on the market for sale the property situate at and known as Suburb A, being the land more particularly described in Certificate of Title Volume [omitted] (“the Suburb A sale”).

The Suburb A sale shall be conducted by a real estate agent agreed between the parties and failing agreement as is nominated by the President of the Real Estate Institute of Victoria and on such terms and conditions and at such reserve price as is agreed between the parties and failing agreement as determined by the selling agent.

On or before 30 November 2010, the wife shall notify the husband in writing of her intention to either appoint or not appoint a separate Trustee in respect to Class B of the P Trust pursuant to Clause 21(vi) of the P Trust Deed.

In the event the wife advises the husband of her intention to appoint a separate Trustee for Class B of the P Trust pursuant to Clause 21(vi) of the P Trust Deed:

(a) The wife shall ensure such separate Trustee as appointed is herself or a company in which she has control (“the New Trustee”);

(b) Upon the Trustee of the P Trust transferring to the New Trustee the portion of the Trust Fund to which Class B is entitled, the wife shall cause such New Trustee to distribute to the husband an amount equal to 10 per cent of the value of the portion so transferred;

(d) Upon settlement of the Suburb B sale, the proceeds shall be distributed as follows:

(i) Payment of all costs and commissions of the sale;

(ii) Discharge of the mortgage to the Bank B;

(iii) Discharge of the Bank B overdraft;

(iv) Payment of the husband’s Mastercard to a maximum of $20,000.00; and

(v) The balance divided equally between the parties;

(e) Upon settlement of the Suburb A sale, the proceeds shall be distributed as follows:

(i) Payment of all costs and commissions of the sale;

(ii) Payment of the husband’s debt to Centrelink of $52,220.00; and

(iii) The balance divided equally between the parties.

In the event the wife advises the husband of her intention not to appoint a separate Trustee for Class B of the P Trust pursuant to Clause 21(vi) of the P Trust Deed:

(a) Upon settlement of the Suburb B sale, the proceeds shall be distributed as follows:

(i) Payment of all costs and commissions of the sale;

(ii) Discharge of the mortgage to Bank B;

(iii) Discharge of the Bank B overdraft;

(iv) Payment of the husband’s Mastercard to a maximum of $20,000.00; and

(v) The balance divided equally between the parties;

(b) Upon settlement of the Suburb A sale, the proceeds shall be distributed as follows:

(i) Payment of all costs and commissions of the sale;

(ii) The payment of the husband’s debt to Centrelink in the sum of $52,220.00

(iii) The amount of $58,314.90 to the husband; and

(iv) The balance divided equally between the parties;

The parties’ chattels shall be divided equally between them by agreement and failing agreement on the basis that each party shall take it in turn to choose an item of furniture and personalty.

The parties have liberty to apply on short notice in relation to the Suburb B sale or the Suburb A sale.

10.

In the event either party refuses or neglects to comply with any provision of this order:

(a) a Registrar of the Federal Magistrates Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these orders; and

(b) the defaulting party is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this order and providing his/her damages.

11.

For the purpose of order 10 herein, an affidavit setting out the defaulting party’s failure to comply with the orders shall be sufficient evidence of neglect and default.

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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