FAMILY LAW – PROPERTY – Final property orders – Relatively short period of cohabitation and marriage – Where the wife seeks orders for a just and equitable distribution of property under s 79 of the Family Law Act 1975 (Cth) – Where the husband opposes any alteration of the parties’ respective property interests – Where the husband asserts that monies advanced to him by members of his family and family companies constitute liabilities to be included on the balance sheet – Whether the purported loans are legally enforceable – Where the husband seeks a declaration that real property owned solely by the wife is held on trust for the wife and the husband as tenants in common in unequal shares – Where the husband made contributions to the purchase of the real property when the parties were in a de facto relationship – Court finds that the husband has an equitable interest in the property – Orders made for distribution of property in favour of the husband – Order made declaring the wife as sole owner of real property in law and in equity.
[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.
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AGLC
ROY & YALDEN [2020] FamCA 1026
Case
[2020] FamCA 1026
Decision Date
CaseChat Overview and Summary
In the matter of *Roy & Yalden*, the wife sought final property orders for a just and equitable distribution of property under s 79 of the *Family Law Act 1975* (Cth), while the husband opposed any alteration of the parties' respective property interests. The husband also asserted that monies advanced to him by his family and family companies constituted enforceable liabilities, and sought a declaration that real property solely owned by the wife was held on trust for both parties as tenants in common in unequal shares, based on his contributions during their de facto relationship.
The court was required to determine whether the purported loans to the husband were legally enforceable liabilities and whether the husband possessed an equitable interest in the real property solely owned by the wife.
The court found that the husband had an equitable interest in the real property owned by the wife, acknowledging his contributions during the de facto relationship. The court ultimately made orders for the distribution of property, declaring the wife as the sole owner of the Suburb C property in law and equity, and the husband as the sole owner of the D Street property in law and equity. The husband was ordered to pay the wife a sum of $121,191 within 60 days, with provision for the sale of the D Street property to satisfy this payment if necessary. Each party was declared the sole owner of their respective superannuation and other property in their possession, ownership, and control, and each was to be solely responsible for their own outstanding mortgages and liabilities.
Orders
Orders of the court
1.
That within 60 days of the date of these Orders, Mr Yalden (“the husband”) pay to Ms Roy (“the wife”) the sum of $121,191.
2.
That the wife be declared the sole owner of the property known as B Street, Suburb C (“the Suburb C property”), in equity and law.
3.
That the husband be declared the sole owner of the property known as D Street, Suburb E (“the D Street property”) in equity and law.
4.
That both parties be declared the sole owners of any superannuation in their respective names.
5.
That if the husband fails to pay the sum of $121,191 to the wife within 60 days of the date of these Orders, in accordance with Order 1 herein, the husband will do all acts and things and sign all documents necessary to sell the property known as D Street, Suburb E and use the proceeds thereof to pay the wife.
6.
That each party shall be solely entitled, to the exclusion of the other, to all property and chattels of whatsoever nature and kind in their respective possession, ownership and control in equity or law.
7.
That the wife be solely responsible for meeting the outstanding mortgage in respect to the Suburb C property.
8.
That the husband be solely responsible for meeting the outstanding mortgage in respect to the D Street property.
9.
That each party indemnify the other from and against all actions, claims, suits and demands as may be made against them in relation to all liabilities in their own name.
These orders have been amended pursuant to rule 17.02 of the Family Law Rules 2004.
Note: The form of the order is subject to the entry of the order in the Court’s records.