Raine and Raine - [2010] FamCA 107

FAMILY COURT OF AUSTRALIA

RAINE & RAINE

[2010] FamCA 107

FAMILY LAW – PROPERTY SETTLEMENT - Contributions - Gift by maternal grandmother to husband and children - Determination of children's interest - Creation of trust

Family Law Act 1975 (Cth)

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

APPLICANT:

Mr Raine

RESPONDENT:

Ms Raine

FILE NUMBER:

LNC

571

2009

DATE DELIVERED:

17 February 2010

PLACE DELIVERED:

Launceston

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

17 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Ms Trezise

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

No appearance

Orders

By way of an alteration of property interests the husband holds in trust for each of the children D Raine a 7/100^th share and for J Raine a 7/100^th share as tenants in common of property H being the land described in Certificate of Title Volume … Folio … (‘H property’) subject to the following terms of trust:-
a.This trust shall terminate upon both of the children attaining the age of 18 years or in the event of an intervening circumstance (such as the death or loss of capacity of one or other of the children) an alternate termination determined by a Court exercising jurisdiction under the Family Law Act 1975 (Cth). The date being the ‘termination date’.
b.Upon reaching the termination date the husband shall notify the children of their entitlements pursuant to this order and the husband may at his election either:-
i.Buy out the share of either or both children at a currant valuation by a valuer appointed for that purpose at the request of the husband or the children to the President of the Law Society of Tasmania, provided the purchase is completed within 6 months of the termination date, or
ii.Within the said 6 month period transfer the legal title of the child or children’s 7/100^th interest to such child.
c.The husband shall pay all rates and taxes on H property and keep it insured and in good condition pending the transfer or purchase within the 6 month period set out above.
d.The husband shall be entitled to use the whole of the property as security to raise funds to pay out the wife in respect of this order.
e.This order shall be binding upon any executors, administrators and trustees of the husband’s estate.
The husband shall pay to the wife the sum of $52,936.66 within 18 months from the date of this order.
At the same time as the husband pays to the wife the money in accordance with Order 2 above;
a.the wife transfer to the husband all that her right, title and interest in the H property, and
b.contemporaneously with the transfer referred to earlier the husband register a Discharge of Mortgage number … executed by an authorised office of ANZ Banking Group Ltd such as to release the wife from all liability pursuant to the said mortgage loan.
c.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 Raine and Raine

Details

AGLC: Raine and Raine [2010] FamCA 107
Case: [2010] FamCA 107
Decision Date: 17 February 2010

CaseChat Overview and Summary

In Raine and Raine, Benjamin J of the Family Court of Australia was required to determine the property interests of the parties following their separation. The dispute concerned the division of assets, including a property held as "H property," a sum of money, and various motor vehicles. The court's orders addressed the allocation of these assets and liabilities between the husband and wife.

The central legal issues before the court were how to equitably divide the matrimonial property, including the H property, and to make financial orders to facilitate this division. This involved determining the extent of each party's interest in the H property and how that interest would be managed or transferred, particularly in relation to the parties' children. The court also had to address the payment of a specific sum of money from the husband to the wife and the transfer of ownership of motor vehicles.

Benjamin J ordered that the husband hold a specified share of the H property in trust for the parties' two children, with the trust to terminate upon the children reaching the age of 18 or by court order in specific circumstances. The husband was given an election to either buy out the children's shares or transfer the legal title to them within six months of the termination date, and was responsible for maintaining the property in the interim. The husband was also ordered to pay the wife a sum of $52,936.66 within 18 months, at which point the wife would transfer her interest in the H property to the husband and be released from a mortgage liability. The orders also stipulated the transfer of ownership of specific vehicles and declared that each party had no further interest in property in the possession of the other, except as otherwise provided. The court also made provisions for the execution of documents by a Registrar in the event of a party's refusal and granted liberty to apply for 20 months for the implementation of the orders.

Orders

Orders of the court

By way of an alteration of property interests the husband holds in trust for each of the children D Raine a 7/100th share and for J Raine a 7/100th share as tenants in common of property H being the land described in Certificate of Title Volume … Folio … (‘H property’) subject to the following terms of trust:-

a. This trust shall terminate upon both of the children attaining the age of 18 years or in the event of an intervening circumstance (such as the death or loss of capacity of one or other of the children) an alternate termination determined by a Court exercising jurisdiction under the Family Law Act 1975 (Cth). The date being the ‘termination date’.

b. Upon reaching the termination date the husband shall notify the children of their entitlements pursuant to this order and the husband may at his election either:-

i. Buy out the share of either or both children at a currant valuation by a valuer appointed for that purpose at the request of the husband or the children to the President of the Law Society of Tasmania, provided the purchase is completed within 6 months of the termination date, or

ii. Within the said 6 month period transfer the legal title of the child or children’s 7/100th interest to such child.

c. The husband shall pay all rates and taxes on H property and keep it insured and in good condition pending the transfer or purchase within the 6 month period set out above.

d. The husband shall be entitled to use the whole of the property as security to raise funds to pay out the wife in respect of this order.

e. This order shall be binding upon any executors, administrators and trustees of the husband’s estate.

The husband shall pay to the wife the sum of $52,936.66 within 18 months from the date of this order.

At the same time as the husband pays to the wife the money in accordance with Order 2 above;

a. the wife transfer to the husband all that her right, title and interest in the H property, and

b. contemporaneously with the transfer referred to earlier the husband register a Discharge of Mortgage number … executed by an authorised office of ANZ Banking Group Ltd such as to release the wife from all liability pursuant to the said mortgage loan.

c. the husband pay and indemnify the wife from payment of all outgoings now or hereinafter falling due as capable of being charged against the title of the former matrimonial home including but not confined to rates and insurance premiums.

Within thirty (30) days of the date of this Order the wife sign all such documents as reasonably required by the husband or his lawyer to transfer to the husband her right, title and interest in the 1992 Mitsubishi utility motor vehicle registration number ….

Within thirty (30) days of the date of Order the husband sign all such documents as reasonably required by the wife or her lawyer to transfer to the wife her interest in the 2000 Toyota Camry wagon motor vehicle registration number ….

Except as otherwise provided in these orders each party is declared to have no further interest in the items of property in the possession the other.

Except as otherwise provided in these orders superannuation entitlements are deemed to be in the possession of the party in whose name it exists.

The parties must do all acts and execute all documents submitted by the other party to implement these orders.

In the event that a party refuses or neglects to sign a document pursuant to these orders then a Registrar of this Court is appointed to execute in the name of both or either party and do all acts and things necessary to give validity to any documents the wife or the husband is required to execute by these orders.

10.

Liberty is given to the parties to apply in respect of implementation of these Orders, such liberty to apply for 20 months from the date of this order.

11.

This case be removed from the list of cases requiring determination.

IT IS CERTIFIED

12.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

13.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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