Ravens and Ravens - [2009] FMCAfam 350

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAVENS & RAVENS

[2009] FMCAfam 350

FAMILY LAW – Property – long term marriage – add backs – asset by asset or global approach – monies reasonably disposed of – post separation assets – goodwill – contributions – just and equitable.

Family Law Act 1975, ss.79, 79(4), 79(2)

C v C [2005] FLC 93-220
Norbis & Norbis [1986] FLC 91-712
Re NHC & RCH [2004] FLC 93-204
AJO v GRO [2005] FLC 93-218
C & C [1998] FamCA 143
Gollings and Scott [2007] FamCA 397
In the Marriage of Kowaliw (1981) FLC91-092

Applicant:

MS RAVENS

Respondent:

MR RAVENS

File Number:

HBC 1443 of 2007

Judgment of:

Baker FM

Hearing dates:

19 & 27 February, 19 March 2009

Date of Last Submission:

19 March 2009

Delivered at:

Hobart

Delivered on:

24 April 2009

REPRESENTATION

Counsel for the Applicant:

Mr Turnbull

Solicitors for the Applicant:

Ogilvie Jennings

Counsel for the Respondent:

Mr Bugg

Solicitors for the Respondent:

Dobson Mitchell & Allport

ORDERS

That the parties sell the property known as Property H in Tasmania contained in Certificate of Title Volume [6] Folio [3] (hereinafter referred to as “the former matrimonial home”).
(a)That prior to the listing of the former matrimonial home for sale and within 14 days of the date herein the Husband will:
(i)At his sole cost employ a professional gardening service to render the gardens and lawns at the former matrimonial home in tradesman-like manner to a fit state for sale, including but not limited to the removal of noxious weeds and grasses, pruning, mulching and mowing of lawns;
(ii)At the joint cost of the parties employ builders to carry out/complete in a tradesman-like manner to works marked with * in the Bound Builders report marked with the letter “A” and attached to the amended application filed 12 March 2009.
(b)The listing price of the former matrimonial home shall be as agreed between the wife and the husband and if there is no agreement value shall be as determined by a Valuer nominated by the President of the Real Estate Institute of Tasmania.
(c)The former matrimonial home shall be listed for sale by private treaty with an agent to be agreed and failing agreement as determined by the President of the Real Estate Institute of Tasmania.
(d)That the wife and the husband shall both forthwith do all acts and things and sign all necessary documents to effect the sale of the former matrimonial home.
That the proceeds of the sale of the property be distributed as follows:
(a)To discharge the mortgage and any other encumbrances affecting the property.
(b)To pay all Real Estate Agent’s costs, commissions and expenses of the sale of the property.
(c)To pay any Council and water rates outstanding in respect of the property.
(d)To pay the solicitor’s costs in relation to the sale of the property.
(e)The balance shall be paid to the wife.
That within 14 days of the date of the settlement of the sale of the former…

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 Ravens and Ravens

Details

AGLC: Ravens and Ravens [2009] FMCAfam 350
Case: [2009] FMCAfam 350
Decision Date: 24 April 2009

CaseChat Overview and Summary

In the Family Court of Australia, the case of Ravens and Ravens involved a dispute between the parties regarding the division of their assets and liabilities upon the termination of their marriage. The court was tasked with determining the appropriate distribution of property, debts, and superannuation entitlements. The central issue was the equitable division of the assets and liabilities of the parties, including the former matrimonial home, personal property, and superannuation funds. The court also had to consider the financial responsibilities and obligations of each party post-separation.

The court meticulously assessed the contributions of each party to the accumulation of the assets and the liabilities, taking into account factors such as the length of the marriage, the age and health of the parties, and their future earning capacities. In its reasoning, the court applied principles of fairness and equity, as mandated by the Family Law Act 1975. The court ordered the sale of the former matrimonial home and detailed the specific steps required for the sale, including the preparation of the property for sale, the listing process, and the distribution of the sale proceeds. It also allocated superannuation entitlements between the parties, ensuring compliance with the Family Law (Superannuation) Regulations 2001.

The outcome of the case included specific orders for the sale of the former matrimonial home, the division of personal property, and the allocation of financial responsibilities. The court also directed the transfer of certain assets between the parties and outlined the process for the distribution of the proceeds from the sale of the matrimonial home. Additionally, the court restrained the husband from accessing his superannuation until the wife’s entitlement was satisfied, and it mandated the transfer of certain superannuation benefits to the wife. The orders ensured a balanced and equitable distribution of the parties' assets and liabilities, reflecting the court's commitment to fairness and the best interests of the parties involved.

Orders

Orders of the court

That the parties sell the property known as Property H in Tasmania contained in Certificate of Title Volume [6] Folio [3] (hereinafter referred to as “the former matrimonial home”).

(a) That prior to the listing of the former matrimonial home for sale and within 14 days of the date herein the Husband will:

(i) At his sole cost employ a professional gardening service to render the gardens and lawns at the former matrimonial home in tradesman-like manner to a fit state for sale, including but not limited to the removal of noxious weeds and grasses, pruning, mulching and mowing of lawns;

(ii) At the joint cost of the parties employ builders to carry out/complete in a tradesman-like manner to works marked with * in the Bound Builders report marked with the letter “A” and attached to the amended application filed 12 March 2009.

(b) The listing price of the former matrimonial home shall be as agreed between the wife and the husband and if there is no agreement value shall be as determined by a Valuer nominated by the President of the Real Estate Institute of Tasmania.

(c) The former matrimonial home shall be listed for sale by private treaty with an agent to be agreed and failing agreement as determined by the President of the Real Estate Institute of Tasmania.

(d) That the wife and the husband shall both forthwith do all acts and things and sign all necessary documents to effect the sale of the former matrimonial home.

That the proceeds of the sale of the property be distributed as follows:

(a) To discharge the mortgage and any other encumbrances affecting the property.

(b) To pay all Real Estate Agent’s costs, commissions and expenses of the sale of the property.

(d) To pay the solicitor’s costs in relation to the sale of the property.

(e) The balance shall be paid to the wife.

That within 14 days of the date of the settlement of the sale of the former matrimonial home, the husband shall pay to the wife such sum which will result in the wife receiving 50% of the non-superannuation asset pool.

That pending completion of the sale of the former matrimonial home the husband shall be solely responsible for the payments of principal and interest to the Mortgagee in respect of Mortgage No: [B] and shall make all payments in relation to it.

That pending completion of the sale of the former matrimonial home the husband will be liable for and indemnify the wife against all payments and liabilities in respect of the former matrimonial home including but not limited to all rates, taxes and outgoings of whatsoever nature and kind and indemnify and keep indemnified the wife in relation to any claims, suit, action, demand or liability which may arise against her in relation thereto.

That the husband shall forthwith transfer and/or relinquish in favour of the wife any right, title and interest he may have in the following:

(a) Any monies, savings at bank or investments in the sole name of the wife;

(b) Any furniture or chattels in the possession of the wife;

(d) Any entitlement of the wife to superannuation whether by way of lump sum, pension or otherwise;

(e) The Amway licence in the wife’s possession; the Queen sized bed, 51cm TV, treadmill, Bunk x 1, book case, digital camera, dining table, dining chairs, shoe stand, ½ the books, ½ the camping gear, Engle fridge, plough, iron pots.

to the intent that the wife shall be the sole and absolute legal and beneficial owner thereof or beneficially entitled thereto as the case may be.

That the wife shall forthwith transfer and/or relinquish in favour of the husband any right, title and interest she may have in the following:

(a) Any monies, savings at bank or investments in the sole name of the husband;

(b) Any furniture or chattels in the possession of the husband with the exception of those items to be retained by the wife at order 6(e) herein;

(d) The trailer in the husband’s possession;

(e) The caravan in the husband’s possession;

(f) The tools in the husband’s possession;

(g) The boat in the husband’s possession;

(h) The Commonwealth Bank of Australia shares;

(i) The husband’s long service leave entitlements with [B] Pty Ltd;

(j) The husband’s shareholding in [C] Pty Ltd.

to the intent that the husband shall be the sole and absolute legal and beneficial owner thereof or beneficially entitled thereto as the case may be.

That the parties make such transfers as are necessary to ensure that the Carbon Energy CNX shares, the Arana Therapeutics AAH shares, the Virotec shares and the Dominion shares are divided equally.

That the wife be solely responsible for the payment of the GE Money loan number [2] and shall indemnify and keep indemnified the husband in respect of same.

10.

That the wife be solely responsible for the payment of Centrelink debt and shall indemnify and keep indemnified the husband in respect of same.

11.

That the wife be solely responsible for the payment of the ANZ Visa credit card number [4] and shall indemnify and keep indemnified the husband in respect of same.

12.

That the husband be solely responsible for any tax liability he has and shall indemnify and keep the wife indemnified in respect of same.

13.

That within 30 (thirty) days of the date of these orders the parties do all such things and execute all such documents to result in the A.S.G. account operated for the benefit of [Y] be redeemed and paid to [Y].

14.

That within 30 (thirty) days of the date of these orders the parties do all such things and execute all such documents to result on the A.S.G account operated for the benefit of [X] be redeemed and paid to [X].

15.

That each of the parties do all such acts and things and execute all such documents as they shall be required to do and execute to give effect to the terms of this order.

16.

That the Court allocate, pursuant to s.90MT(4) of the Family Law Act 1975, a base amount of $34,481.00 to the wife out of the Husband’s interest in the Aviva Navigator Superplan.

17.

That pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s interest in the Aviva Navigator Superplan the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount of $34,481.00 and there be a corresponding reduction in the entitlement that the husband would have had in the said Aviva Navigator Superplan but for this order.

18.

That the Trustee of the Aviva Navigation Superplan and the husband shall do all such acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, the Trustees shall calculate the entitlement of and make payment to the wife in accordance with order 16 of these orders.

19.

That pending service on the Trustee of the Aviva Navigation Superplan of the orders herein, the husband be restrained from withdrawing, encumbering or seeking to have vested in him, his superannuation entitlements with the Aviva Navigator Superplan.

20.

That the wife do all such things necessary, including but not limited to exercising her request pursuant to Regulation 7A.06(01) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the benefit out of the husband’s interest in the Aviva Navigator Superplan to a superannuation fund of the wife’s choosing in accordance with Regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

21.

That having been accorded procedural fairness, these orders bind the Trustee of the Aviva Navigation Superplan to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

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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