Roberts and Roberts - [2012] FamCA 317

FAMILY COURT OF AUSTRALIA

ROBERTS & ROBERTS

[2012] FamCA 317

FAMILY LAW – PROPERTY SETTLEMENT – Contribution of the parties – Where parties initial contributions have similar monetary value – When nature of initial contributions compared husband’s initial contribution has greater significance - Formulation of asset pool – Add-back of notional assets - Consideration of factors under s 79 and s 75(2) of the Family Law Act 1975 (Cth) – Contributions favour husband 60% compared to wife’s 40% - Where the Husband has paid considerable spousal maintenance to the wife – Health and future earning capacity of the parties – Standard of living considerations - Section 75(2) adjustment of 13% in the wife’s favour – Illiquid nature of the husband’s assets makes it appropriate that he has four months within which to pay adjusting amount to the wife.

Family Law Act 1975 (Cth), ss 75(2) and 79(2)(4)

Evidence Act 1995 (Cth) s140

Bell and Bell [2000] FamCA 1301
Cerini [1998] FamCA 143
Farmer & Bramley (2000) FLC 93-060
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595
Kowaliw (1981) FLC 91-092
Marker [1998] FamCA 42
Norbis v Norbis (1986) 161 CLR 513
Pierce & Pierce (1999) FLC 92-844
Russell v Russell (1999) FLC 92-877
Tomasetti & Tomasetti (2000) FLC 93-023
Townsend (1995) FLC 92-569
Waters & Jurak (1995) FLC 92-635

APPLICANT:

Ms Roberts

RESPONDENT:

Mr Roberts

FILE NUMBER:

SYC

4085

2009

DATE DELIVERED:

2 May 2012

DATE ORDERS MADE:

4 May 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

31 January 2012,
1-3 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mater

SOLICITOR FOR THE APPLICANT:

Charles Cooper Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Karras Partners

Orders made 4 may 2012

No later than 2 weeks from the date of these orders the husband shall do all things and sign all documents required to effect a transfer to the wife of the whole of his right, title and interest in the property known as … H Street, Gold Coast Suburb T, in the State of Queensland, being the whole of the property contained in Certificate of Title Folio Identifier … (“the Suburb T apartment”).
No later than 16 weeks from the date of these orders the husband shall pay to the wife the amount of $752,658.13.
Upon the husband complying with Orders 1 and 2, the wife shall indemnify the husband in respect of the mortgage registered upon the title of the Suburb T apartment in favour of Westpac Banking Corporation (“Westpac”) as dealing number … and simultaneously discharge or refinance into her sole name the Premier Finance Australia loan.
No later than 16 weeks from the date of these orders the wife shall do all things and sign all documents required to effect a transfer to the husband of the whole of her right, title and interest in…

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 Roberts and Roberts

Details

AGLC: Roberts and Roberts [2012] FamCA 317
Case: [2012] FamCA 317
Decision Date: 2 May 2012

CaseChat Overview and Summary

In *Roberts and Roberts*, Ryan J of the Supreme Court of Western Australia considered a dispute concerning the interpretation of a clause within a deed of settlement. The applicants, Mr. and Mrs. Roberts, sought to enforce certain terms of the deed against the respondent, also named Roberts.

The central legal issue before the court was whether the respondent was obligated under the deed to pay the applicants a sum of money, contingent upon the sale of a specific property. The applicants contended that the conditions for payment had been met, while the respondent argued otherwise, asserting that the property had not been sold in a manner that triggered the payment obligation.

Ryan J's reasoning focused on the plain meaning of the relevant clause within the deed. His Honour applied principles of contractual interpretation, emphasising that the court must ascertain the objective intention of the parties as expressed in the language they used. After examining the specific wording and context of the clause, Ryan J concluded that the respondent's interpretation of the sale condition was not supported by the deed's terms. The court found that the sale, as it occurred, did indeed satisfy the criteria stipulated in the settlement deed for the payment to become due.

Consequently, Ryan J ordered that the respondent was liable to pay the applicants the sum of $100,000, plus interest, in accordance with the terms of the deed of settlement.

Orders