Rice and Rice and Ors

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FAMILY COURT OF AUSTRALIA

RICE & RICE AND ORS [2015] FamCA 85
FAMILY LAW – Nuptial Settlement under s 85A – Where husband and wife transfer farm to two daughters for the purposes of receiving a pension under a Commonwealth Government Scheme 16 years ago – Where such an arrangement needs to be an absolute gift – Whether it is possible to have a settlement where the transfer is made but with residential conditions akin to a life interest – The husband and wife continued to reside on the farm on the basis of an entitlement that they be able to do so for life – Where the wife no longer wishes to live on the farm as a result of a rift with the daughters and the breakdown of the marriage with the husband – Found that the conditional nature of the transfer amounted to a nuptial settlement – Provisions of s 79 then applied as against the daughters – The husband supported the daughters in denying the existence of a nuptial settlement but having a fall-back position of seeking similar payment himself if a settlement was found – Not just and equitable to make such an order in the unusual circumstances of the case.
Family Law Act 1975 (Cth)
Family Law Amendment Act 1983 (Cth)

Matrimonial Causes Act 1875 (Qld)
Matrimonial Causes Act 1959 (Cth)
Settled Land Act 1958 (Vic)

Associated Alloys Pty Ltd v. ACN 001 452 106 Pty Ltd (2000) 202 CLR 588
Bevan & Bevan [2013] FamCAFC 116
Black v Poole (1895) 16 A.L.T. 155
Brooks v Brooks [1996] AC 375
Brown v Heffer (1967) 116 CLR 344
Burke v Dawes (1938) 59 CLR 1
Charalambous v Charalambous [2004] All ER (D) 582 (Jul)
Commissioner of Stamp Duties (Qld) v Hopkins (1945) 71 CLR 351
Cook v Cook [1962] 2 All ER 262
Davidson v Armytage (1906) 4 CLR 205
Dewar and Dewar (1960) 106 CLR 170
Dunn v Carter [2004] NSWSC 862
Gill v Gill (1921) 21 SR (NSW) 400
Hewett v Court (1983) 149 CLR 639
In the Marriage of Healy (1977) FLC 90-295
In the Marriage of Howes (1981) FLC 91-044
Joss v Joss (1943) P 18
Kennon v Spry (2008) 238 CLR 366
Mackie & Mackie (1981) FLC 91-069
Omacini & Omacini (2005) FLC 93-218
Public Trustee (SA) and Keays (1985) FLC 91-651
Re Brace (deceased); Gurton v Clements [1954] 2 All ER 354
Re Hoppe; Hoppe v McDavitt [1961] VR 381
Re Jacobson, Deceased [1970] VR 180
Re Symon, Public Trustee v Symon [1944] SASR 102
Scott v Comptroller of Stamps [1967] VR 122
Secretary, Department of Social Security v James (1990) 20 ALD 5
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner v Steinbrenner [2008] FamCAFC 193
Young v Young (No 1) [1962] P 27

Underhill, A, The Law Relating to Trusts and Trustees, (Butterworth, 9th ed, 1939)
J D Heydon and M J Leeming (eds), Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006)

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Details
Case
[2015] FamCA 85
Decision Date

CaseChat Overview and Summary

In the matter of *Rice and Rice and Ors*, Cronin J considered a dispute between a wife and two other parties, Ms B Rice and Ms C Rice, concerning the payment of a sum of money and the disposition of real properties. The wife sought orders for payment and the sale of properties, while the other parties were involved in the financial and property aspects of the dispute.

The central legal issues before the Court were the quantum of the wife's entitlement and the mechanism for its satisfaction, including whether a specific sum was payable or if a percentage of net proceeds from the sale of real properties was to be awarded. The Court also had to determine the terms of possession and vacation of these properties and the dismissal of outstanding applications.

Cronin J ordered that Ms B Rice and Ms C Rice pay the wife the sum of $328,750 by a specified date. In default of this payment, the real properties known as "D" and "E" were to be sold. If a sale became necessary, the wife's entitlement was to be 25 per cent of the net proceeds of sale after deducting sale costs, adjustments for rates and taxes, and conveyancing costs, along with interest on the outstanding capital sum. Upon receipt of the payment, the wife was to vacate the properties, granting exclusive occupation to Ms B Rice and Ms C Rice respectively. The wife was also permitted to retain her bank accounts, motor vehicle, and personal items. All other extant applications seeking final orders were dismissed, save for issues of costs.

Orders

Orders of the court

1.

That by 4 pm on 21 May 2015, or such other time as is agreed, Ms B Rice and Ms C Rice pay to the wife the sum of $328,750.

2.

That in default of the payment of the sum referred to in paragraph 1 by the date there referred to, the real properties known as “D” and “E” be sold on terms and conditions to be agreed and in default of agreement, by order of the Court.

3.

That should it be necessary to sell the real properties referred to, the wife’s entitlement shall not be $328,750 but 25 per cent of the net proceeds of sale after payment of all estate agents’ sale costs and expenses, all adjustments for rates and taxes associated with the land at the settlement of the sale and all conveyancing costs associated with the sale together with interest on the ultimate outstanding capital sum at the rate prescribed under the Family Law Rules from 21 April 2015 until payment.

4.

Upon the receipt by the wife of the said sum, she shall vacate and give exclusive occupation of the said real properties to Ms B Rice and Ms C Rice respectively.

5.

That the wife otherwise retain to the exclusion of all other parties, any money standing to her name in any bank account, her motor vehicle and her personal items of property in the room occupied by her at property D.

6.

That save as to issues of costs, all extant applications (and responses) seeking final orders are dismissed.

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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