PEABODY & PEABODY

Case [2013] FCCA 1980


FEDERAL CIRCUIT COURT OF AUSTRALIA

PEABODY & PEABODY [2013] FCCA 1980
Catchwords:
FAMILY LAW – Property – 26 year marriage – credit issues – weight to be given to Husband’s initial contributions – partial property distribution added back – premature distribution of assets by Wife otherwise addressed under contributions – post-separation inheritance a financial resource – no adjustment for leave entitlements.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79

AJO & GRO (2005) FLC 93-218

Bevan & Bevan [2013] FamCAFC 116

Beatson & Beatson [2013] FamCA 655

Bonnici & Bonnici (1991) FLC 92 - 272

Burke & Burke (1993) FLC 92 – 356

Cabbell & Cabbell [2009] FamCAFC 205

C & C [1998] FamCA 143

CKC & RRC [2006] FamCA 1290

C & C (2000) FLC 93 - 220

Essex & Essex [2009] FamCAFC 236

Field & Basson [2013] FamCAFC 32

Gollings & Scott (2007) FLC 93-319

Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143

In the Marriage of Burke  (1981) FLC 91-055

Jarrott & Jarrott (No 2) [2012] FamCAFC 72

JEL & DDF (2001) FLC 93,075

Kowaliw & Kowaliw (1981) FLC 91-092

Kowalski and Kowalski (1993) FLC 92-342

NHC & RCH [2004] FamCA 633

Norbis and Norbis (1986) 161 CLR 513

Pierce & Pierce (1999) FLC 92-844

Stanford & Stanford [2012] HCA 52

Sippel & Sippel [2004] FamCA 201

Townsend & Townsend (1995) FLC 92-569

Trauman & Trauman [2013] FamCA 765

Wall & Wall (2002) FLC 93-110

Watson & Ling [2013] FamCA 57

Williams & Williams [2007] FamCA 313

Applicant: MS PEABODY
Respondent: MR PEABODY
File Number: SYC 3947 of 2011
Judgment of: Judge Sexton
Hearing dates: 22, 23, 24 April 2013
Date of Last Submission: 24 April 2013
Delivered at: Sydney
Delivered on: 28 November 2013

REPRESENTATION

Counsel for the Applicant: Mr Paul Sansom
Solicitors for the Applicant: Newnhams Solicitors
Counsel for the Respondent: Mr Julian Millar
Solicitors for the Respondent: Diamond Conway

THE COURT ORDERS THAT:

  1. Orders made on 22 October 2012 be discharged.

  2. By no later than 31 January 2014:

    (a)The Husband do all acts and things and sign all documents necessary to discharge the loans to the (omitted) Bank secured by way of mortgage on the property known as Property V in the State of New South Wales, being Folio Identifier (omitted) (the Property V property) being account numbers (omitted), (omitted) and (omitted) and otherwise indemnify and keep the Wife indemnified in relation to any liability arising as a result of those loans.     

    (b)The Declaration of Trust dated 2 May 2008, entered into between the parties in respect of the Property V property, be set aside. 

  3. The Wife retain all her right, title and interest in the Property V property to the exclusion of the Husband.

  4. The Husband retain all his right, title and interest in the property known as Property G, being Folio Identifier (omitted) (the Property G property) to the exclusion of the Wife.

  5. Simultaneously with Order (2) the Husband pay to the Wife by way of…

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AGLC
PEABODY & PEABODY [2013] FCCA 1980
Case
[2013] FCCA 1980
Decision Date

CaseChat Overview and Summary

In *Peabody & Peabody*, Sexton 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, including real estate, superannuation, shares, and other personal property.

The central legal issues before the court were the appropriate division of the parties' property and the discharge of certain financial liabilities. Specifically, the court needed to address the ownership and encumbrances on a property known as Property V, the setting aside of a declaration of trust in relation to that property, and the allocation of various other assets and debts between the parties. The court was also tasked with making orders regarding the parties' respective superannuation entitlements.

Sexton J applied the principles of the *Family Law Act 1975* (Cth), particularly sections 75 and 79, which govern the alteration of property interests. The court's reasoning involved a comprehensive assessment of the parties' financial circumstances and the equitable distribution of their combined assets and liabilities. The orders reflect a detailed division of property, including the discharge of specific loans, the transfer of property interests, and monetary payments between the parties.

The court made extensive orders to finalise the property settlement. These included discharging previous orders, requiring the husband to discharge loans secured against Property V and to indemnify the wife against any liability arising from those loans, and setting aside a declaration of trust concerning Property V. The wife was ordered to retain Property V, while the husband was to retain Property G. The husband was also ordered to pay a sum of money to the wife by way of property settlement. Further orders detailed the retention of various other assets, including shareholdings, vehicles, bank accounts, business interests, and superannuation entitlements, by each party. Specific directions were also given for the transfer of superannuation entitlements from a joint fund to the wife.

Orders

Orders of the court

1.

Orders made on 22 October 2012 be discharged.

2.

By no later than 31 January 2014:

(a) The Husband do all acts and things and sign all documents necessary to discharge the loans to the (omitted) Bank secured by way of mortgage on the property known as Property V in the State of New South Wales, being Folio Identifier (omitted) (the Property V property) being account numbers (omitted), (omitted) and (omitted) and otherwise indemnify and keep the Wife indemnified in relation to any liability arising as a result of those loans.

(b) The Declaration of Trust dated 2 May 2008, entered into between the parties in respect of the Property V property, be set aside.

3.

The Wife retain all her right, title and interest in the Property V property to the exclusion of the Husband.

4.

The Husband retain all his right, title and interest in the property known as Property G, being Folio Identifier (omitted) (the Property G property) to the exclusion of the Wife.

5.

Simultaneously with Order (2) the Husband pay to the Wife by way of property settlement the sum of $371,568.60.

6.

The Wife retain all her right, title and interest in the following, to the exclusion of the Husband:

(a) Shareholdings in (omitted), (omitted), and (omitted);

(b) Lexus (model omitted) motor vehicle (registration number (omitted));

(c) Proceeds of bank accounts in her name;

(d) Interest in Ms Peabody (omitted) business;

(e) Member entitlement in the Property V Superannuation Fund.

7.

The Husband retain all his right, title and interest in the following, to the exclusion of the Wife:

(a) Jaguar motor vehicle (registration number (omitted));

(b) (omitted) Motor Bike;

(c) The Leveraged Equities share portfolio;

(d) Shares in (omitted) Pty Ltd;

(e) Shares in (omitted) Pty Ltd;

(f) Interest in (omitted) business;

(g) His interest in his late Mother's Estate;

(h) His employment entitlements;

(i) Proceeds of bank accounts in his name;

(j) Member entitlements in the Mr Peabody Superannuation Fund;

(k) Member entitlements in the Peabody Superannuation Fund.

8.

Within 14 days, the parties, as Trustees of the Peabody Superannuation Fund do all such acts and things and sign all documents necessary to transfer to the Wife all her member entitlements in the Peabody Superannuation Fund, being a base amount of $938,358 so determined as at 28 February 2013.

9.

Within a further 7 days of the Trustees' compliance with Order (8), the Wife request the Superannuation Trustees to rollover the withdrawal benefit from the Wife's member spouse interest to a regulated superannuation fund, or an approved deposit fund, specified in the request, to be held for the benefit of the Wife and upon receiving such request the superannuation Trustee do all acts and sign all documents necessary to comply with the request.

10.

Upon compliance with Order (9), the Wife do all acts and things and sign all documents so as to remove herself as Trustee of the Peabody Superannuation Fund provided that the Husband hereby indemnifies the Wife and keeps her indemnified from any liability she may have now or in the future arising from her being a Trustee of the Peabody Superannuation Fund.

11.

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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