Rains and Callia - [2010] FMCAfam 512

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAINS & CALLIA

[2010] FMCAfam 512

FAMILY LAW – Property – whether terms of settlement announced to court by counsel are binding on the parties.

Family Law Act 1975 (Cth), ss.75, 79, 86, 87
Matrimonial Causes Act 1971 (repealed)

Woodcock & Woodcock (1997) FLC 92-739
Woodland & Todd (2005) FLC 93-217
Z & Z [2006] FamCA 920
Naughton & Naughton (1983) FLC 91-327
Harvey v Phillips (1956) 95 CLR 235
Berriman v Pipeline Engineering Pty Ltd (1989) 52 SASR 324
Rex v Municipal Council of the Shire of Marong, Ex parte Filcock (1903) 29 VLR 355
Anderson v Anderson (1982) FLC 91-251
In the Marriage of Lonard (1976) 11 ALR 618
In the Marriage of M I and A Tynan (1992) 16 Fam LR 621
Robinson v Willis (1982) 8 Fam LR 131
In the Marriage of Langford and Coleman (1993) 16 Fam LR 228
Harris v Caladine (1991) FLC 92-217
Mallet v Mallet (1984) FLC 91-507

Applicant:

MS RAINS

Respondent:

MR CALLIA

File Number:

MLC 10737 of 2008

Judgment of:

Riley FM

Hearing date:

5 May 2010

Date of Last Submission:

5 May 2010

Delivered at:

Melbourne

Delivered on:

25 May 2010

REPRESENTATION

Counsel for the Applicant:

Ms Stoikovska

Solicitors for the Applicant:

Berger Kordos Lawyers

Counsel for the Respondent:

Mr Nicholson

Solicitors for the Respondent:

Marshalls & Dent

ORDERS

Within 60 days from the date of these orders (“the date”) the wife pay to the husband the sum of $355,000 (“the payment”)
Contemporaneously with the payment:
(a)the husband do all such acts and things and sign all documents as may be required to relinquish any right, title and interest he may have in the real property situate at and known as Property S, Victoria, in the State of Victoria, being the whole of the land more particularly described in certificate of title volume [omitted] (“the Property S property”) to the wife; and
(b)the husband do all such acts and things and sign all documents as may be required to withdraw caveat number [omitted] registered against the Property S property’s certificate of title.
The wife forthwith do all such acts and things and sign all documents as may be required to transfer to the husband (“the transfer”), at the husband’s expense, all of her right, title and interest in the real property situate at and known as Property B, in the State of Queensland, being the whole of the land more particularly described in certificate of title number [omitted] (“the Queensland property”).
Contemporaneously with the transfer the husband procure a discharge of the wife’s liability for the Westpac Bank mortgage (registration number [omitted]) registered against the Queensland property (“the Queensland mortgage”) and discharge or refinance the total debt secured by the Queensland mortgage into his sole name.
The Husband arrange for the discharge and/or refinance of the Queensland mortgage in accordance with order 4 hereof by no later than 3 December 2010.
Pending the wife’s compliance with orders 1 and 2 herein:
(a)the wife…

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 Rains and Callia

Details

AGLC: Rains and Callia [2010] FMCAfam 512
Case: [2010] FMCAfam 512
Decision Date: 25 May 2010

CaseChat Overview and Summary

In the matter of Rains and Callia, the parties were involved in a dispute primarily concerning the division of their property and financial obligations post-separation. The Family Court of Australia was tasked with determining how to distribute the assets and liabilities of the parties, given their separation and the implications for their respective financial and property rights.

The court was required to decide on the division of real property, financial accounts, and personal items, as well as the allocation of debts and liabilities. This involved assessing the contributions of each party to the acquisition of the assets, their respective needs, and the future financial implications for each party. The court also had to determine the conditions under which certain properties would be transferred or sold if the stipulated payments and obligations were not met within the specified timeframes.

The court's reasoning was grounded in the principles of fairness and the equitable division of property under the Family Law Act. It considered the contributions made by each party, both financial and non-financial, towards the accumulation of their assets. The court also took into account the future needs and obligations of each party, ensuring that the division of assets and liabilities would not unduly disadvantage either party. The orders reflect a balanced approach, aiming to provide immediate and future financial security for both parties.

The final orders detail specific timelines and conditions for the transfer of properties, the division of financial accounts, and the allocation of debts. The orders ensure that the wife pays a specified sum to the husband, and in return, the husband relinquishes his interest in certain properties and takes on specific debts. The court also outlined contingencies for the sale of properties if the stipulated payments were not made within the specified periods. Additionally, the orders address the division of personal items and financial accounts, ensuring that each party retains certain assets while also assuming specific financial responsibilities.

Orders

Orders of the court

Within 60 days from the date of these orders (“the date”) the wife pay to the husband the sum of $355,000 (“the payment”)

Contemporaneously with the payment:

(a) the husband do all such acts and things and sign all documents as may be required to relinquish any right, title and interest he may have in the real property situate at and known as Property S, Victoria, in the State of Victoria, being the whole of the land more particularly described in certificate of title volume [omitted] (“the Property S property”) to the wife; and

(b) the husband do all such acts and things and sign all documents as may be required to withdraw caveat number [omitted] registered against the Property S property’s certificate of title.

The wife forthwith do all such acts and things and sign all documents as may be required to transfer to the husband (“the transfer”), at the husband’s expense, all of her right, title and interest in the real property situate at and known as Property B, in the State of Queensland, being the whole of the land more particularly described in certificate of title number [omitted] (“the Queensland property”).

Contemporaneously with the transfer the husband procure a discharge of the wife’s liability for the Westpac Bank mortgage (registration number [omitted]) registered against the Queensland property (“the Queensland mortgage”) and discharge or refinance the total debt secured by the Queensland mortgage into his sole name.

The Husband arrange for the discharge and/or refinance of the Queensland mortgage in accordance with order 4 hereof by no later than 3 December 2010.

Pending the wife’s compliance with orders 1 and 2 herein:

(a) the wife have the sole right to occupy the Property S property and that during such right of occupation the wife shall pay all rates and taxes and like apportionable outgoings of the Property S property as and when they fall due;

(b) the parties hold their respective interests in the Property S property upon trust pursuant to these orders; and

(c) neither party otherwise encumber the Property S property without the prior written consent of the other party save to give effect to these orders.

Pending the husband’s compliance with order 4 herein;

(a) the husband shall indemnify, and keep the wife indemnified;

(i) in respect of all liability she may have for the Queensland mortgage; and

(ii) in respect of all rates, taxes and other outgoings of or with respect to the Queensland property of whatsoever nature and kind;

(b) the husband shall be solely responsible for paying all installments pursuant to the Queensland mortgage and all rates and taxes and like apportionable outgoings of the Queensland property as and when they fall due;

(c) the husband shall have the sole right to receive any rental income received from the Queensland property as and from 3 December 2009;

(d) the parties shall hold their respective interests in the Queensland property upon trust pursuant to these orders; and

(e) neither party shall otherwise encumber the Queensland property without the prior written consent of the other party save to give effect to these orders.

For the purposes of the completion of the parties personal income tax returns for the financial years up to and including the financial year ended 30 June 2010;

(a) all rental income received from the Queensland property up to

3 December 2009 is to be divided equally between the parties; and

(b) all rental income received from the Queensland property as and from 4 December 2009 shall be deemed to be the sole income of the husband.

In the event that the whole of the payment has not been made by the date pursuant to order 1 herein, then the Property S property shall be forthwith sold (“the first sale”) and the proceeds of the first sale applied as follows:

(a) firstly, to pay all costs, commission and expenses of the first sale;

(b) secondly, to discharge any encumbrance affecting the Property S property;

(c) thirdly, so much of the payment as is then outstanding together with interest thereon at the rate prescribed by Rule 17.03 of the Family Law Rules 2004 adjusted monthly from the date to the husband; and

(d) fourthly, the balance to the wife.

10.

In the event that the husband is unable to discharge or refinance the Queensland mortgage into his sole name pursuant to order 4 herein on or before 3 December 2010, then the Queensland property shall be forthwith sold (“the second sale”) and the proceeds of the second sale shall be applied as follows:

(a) firstly, to pay all costs, commission and expenses of the second sale;

(b) secondly, to discharge the Queensland mortgage and any encumbrance affecting the Queensland property; and

11.

The Husband shall forthwith do all such acts and things and sign all documents as may be required to relinquish and forgo any interest he has in the parties’ joint Westpac Bank life insurance policy (policy number [omitted]) and transfer that insurance policy into the wife’s sole name.

12.

The parties shall forthwith do all such acts and things and sign all documents as may be required to close the joint Westpac Bank bonus saver account in the name of the husband and the wife as trustees for [X], [Y] and [Z] (account number [omitted]).

13.

The wife shall forthwith do all such acts and things and sign all documents as may be required to relinquish and forego any interest she has in the parties’ joint Westpac Bank Term Deposit Account (account number [omitted]) and transfer that Term Deposit Account into the husband’s sole name.

14.

The wife shall retain, to the exclusion of the husband, her interest in her [B] Investment (investor number [omitted]).

15.

The wife shall retain, to the exclusion of the husband, the unencumbered 2004 Toyota Prado motor vehicle (registration number [omitted]) registered in her sole name.

16.

The wife shall do all such acts and things and sign all such documents as may be required to transfer to the husband the unencumbered 1998 Saab 9000 motor vehicle (registration number [omitted]) registered in her sole name.

17.

The husband be responsible for and indemnify the wife in relation to his Westpac Bank MasterCard credit card account and Westpac Bank Personal Loan.

18.

The wife be responsible for and indemnify the husband in relation to her Westpac Bank Altitude Gold Visa Credit Card Account.

19.

Unless otherwise specified in these orders and except for the purpose of enforcing the payment of any money due under these or subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders;

(b) money standing to the credit of the parties in any bank account is to become the property of the owner named in the bank account;

(c) all insurance policies and/or life insurance policies are to become the sole property of the owner of the policy named therein;

(d) each party retain for their sole use and benefit any superannuation benefits accrued in their sole names;

(e) 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

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.