FAMILY COURT OF AUSTRALIA
| SENIOR & ANDERSON | [2012] FamCA 540 |
| FAMILY LAW – PROPERTY - Division of property – Seventeen year marriage – No children – Both parties born overseas – Husband no history of employment – Initial financial contributions – Monies given to husband by his extended family prior to marriage – Investment and control of those monies by husband during marriage – Purchase of business – Purchase of two real properties – Standard of proof – Observation of the parties in giving their evidence – Inferences to be drawn from omission of evidence that could have been available – Previous Binding Financial Agreement that had been declared invalid – Payments made pursuant to that agreement – Other superannuation and assets of the parties to be divided – Consideration of a purported investment partnership contract and whether monies were held and invested pursuant to that document – Source and existence of overseas monies paid to the husband – Bank borrowings – Monies repatriated overseas – Previous endeavours to transfer ownership of real property – Prior settlement agreements – Partial property payment – Assessment of s 79(4) contributions – No s 75(2) adjustment – Consideration of just and equitable orders – Monetary value of orders. |
| Evidence Act 1995 (Cth), s 140(1), s 140(2) Family Law Act 1975 (Cth), s 75(2), s 79(1), s 79(2), s 79(4) |
| Bremner and Bremner (1995) FLC 92-560 Heydon JD, Cross on Evidence, 8th ed, Butterworths, Sydney, 2010 |
| APPLICANT: | Ms Senior |
| RESPONDENT: | Mr Anderson |
| FILE NUMBER: | MLC | 9546 | of | 2008 |
| DATE DELIVERED: | 16 July 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Young J |
| HEARING DATE: | 14,15, 19 and 29 June 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR Werner |
| SOLICITOR FOR THE… |
Continue reading Senior and Anderson
Sign in free to access the full text
- AGLC
- SENIOR & ANDERSON [2012] FamCA 540
- Case
- [2012] FamCA 540
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate distribution of the parties' consolidated pool of assets and liabilities, considering their initial contributions, the factors outlined in section 75(2) of the *Family Law Act 1975* (Cth), and the specific circumstances of the case, including overseas money, a retail business, and various properties. The court also had to address the wife's superannuation entitlements and a liability to a third party.
Young J applied principles relating to initial contributions and the statutory factors under section 75(2) to reach a determination. The court considered the husband's original Egyptian passport and overseas money, an investment partnership contract, a property known as "B Property" (a shop and residence), and another property referred to as "W Property". The court also took into account monies sent back to Egypt, an ANZ bank account, a liability to Mr Z, and the sale of Sydney Road. The court's reasoning led to a structured set of orders designed to achieve a partial property settlement.
The orders made included the transfer of "W Property" to the husband, the sale of "B Property" with specific conditions regarding agent selection, reserve price, and sale process, and the application of sale proceeds to various debts, HECS, and the wife's superannuation entitlements. The balance of the sale proceeds was to be divided, with the wife receiving 42% and the husband 58%, taking into account the value attributed to "W Property" retained by the husband. The wife was to retain her superannuation entitlements, a previously paid sum, and her flat in Egypt, while the husband was to be solely responsible for certain outgoings and indemnified against claims from his overseas family members. Both parties were to retain their existing furniture and chattels.
Orders
Orders of the court
REASONS FOR JUDGMENT
ISSUES
ORDERS SOUGHT
AFFIDAVITS RELIED UPON
BACKGROUND FACTS
PREVIOUS ORDERS
LITIGANT IN PERSON
STANDARD OF PROOF
OBSERVATION OF WITNESSES
FAMILY LAW ACT 1975 (CTH)
SECTION 75(2) FACTORS
ASSETS
LIABILITIES
SUPERANNUATION
PARTIAL PROPERTY SETTLEMENT
WIFE’S FLAT IN EGYPT
CONSOLIDATED POOL OF ASSETS
LEGAL PRINCIPLES - INITIAL CONTRIBUTIONS
INFERENCES
WIFE
HUSBAND
HUSBAND’S ORIGINAL EGYPTIAN PASSPORT
OVERSEAS MONEY
INVESTMENT PARTNERSHIP CONTRACT DATED 5 OCTOBER 1983
B PROPERTY (“THE SHOP”)
W PROPERTY
RETAIL BUSINESS IN C
MONIES SENT BACK TO EGYPT
ANZ BANK ACCOUNT
LIABILITY OF $75,583 TO MR Z
SIGNED TRANSFERS OF LAND
SALE OF SYDNEY ROAD
S 79(4) CONTRIBUTIONS
S 75(2) FACTORS
FOURTH STEP
MONETARY EFFECT OF THE ORDERS
STRUCTURE OF THE ORDERS
ORDERS
IT IS ORDERED:
1.
THAT the wife sign all documents and do all acts and things, at her expense, to transfer to the sole name of the husband all of her right, title and interest in and to the property situate at and known as W Property, in the State of Victoria (“W Property”) and contemporaneously provide in registerable form a discharge of the caveat that she caused to be lodged upon the title to that property.
2.
THAT the husband be solely responsible for the payment of all outstanding rates, taxes and outgoings of and associated with W Property and indemnify the wife in that regard.
3.
THAT the jointly owned shop and residence situate at and known as B Property in the State of Victoria (“B Property”) and its fixtures and fittings be offered for sale by the parties as follows:
(a) the wife is to instruct her solicitors to nominate in writing three (3) firms of real estate agents who operate in B and the husband is to select within fourteen (14) days therefrom one (1) firm of real estate agents and they are then to be jointly engaged by the parties for the purpose of the sale;
(b) the parties are to jointly negotiate and agree upon the fees and commission charged by the agent;
(c) the sale is to be by public auction, to be conducted on or before 1 November 2012 unless it is otherwise recommended by the real estate agent for a good reason that a different process of selling be undertaken and the parties both agree to and jointly accept that advice;
(d) the reserve price is to be no less than $850,000 unless otherwise recommended and mutually agreed;
(e) that if it is recommended by the real estate agent that monies are required to be spent on the repair, renovation or maintenance of this property then the parties are to negotiate and mutually agree to both the work and the quantum to be spent thereon (but it is not to exceed $25,000) and it is only for the purpose of achieving the best possible sale price;
(f) the sale is to be made subject to the current monthly leasing arrangement and the parties must first obtain the written consent and co-operation of the lessee;
(g) the sale is to be conducted on the basis of a cash contract and provide for a settlement period of no more than 120 days, unless otherwise mutually agreed;
(h) an independently appointed solicitor is to act for the parties on the conveyance and is to hold the net sale monies pending agreement between the parties, or court order, and then pay out to each of them the sum calculated and agreed upon pursuant to Order 4(f) hereof;
(i) the wife is to provide, at her expense, an executed document in registrable form to discharge the caveat lodged on title by her solicitors upon her instructions;
(j) otherwise the parties are to have the joint conduct of the sale;
(k) otherwise liberty is reserved to either party upon proper notice and documentation filed and served to apply as to any further term or necessary condition of such sale.
4.
THAT the proceeds of sale of B Property are to be applied in the following manner:
(a) in payment of all proper and agreed costs, charges and commissions of sale, including legal expenses;
(b) in discharge of all monies and interest owing to National Australia Bank pursuant to the registered mortgage;
(c) in repayment of any monies expended on the repair, renovation or maintenance of the property pending sale pursuant to Order 3(e) hereof;
(d) in repayment to the husband of a sum of $8,000 to discharge his HECS debt to the Commonwealth Government;
(e) in further repayment to the husband of a sum of $7,500 to be paid to him to offset the wife’s superannuation entitlements;
(f) the balance is then to be divided between the husband and wife (without regard to the wife retaining the assets in Order 6 hereof and the husband retaining the payment of $7,500) so as to effect an overall property division inclusive of the husband retaining W Property at a value of $640,000:
i. in favour of the wife as to 42%;
ii. in favour of the husband as to 58%.
5.
THAT the husband indemnify and keep indemnified the wife against any claim, financial demand or in legal proceedings which may be brought against her, jointly or severally, by any of the overseas family members of the husband’s family for monies had or received by them, or one of them, during their marriage.
6.
THAT the wife retain her superannuation entitlements of $21,500, the $28,000 sum previously paid to her by the husband and her flat in Egypt.
7.
THAT the husband and wife otherwise retain all furniture, chattels and personal effects that they each now have in their possession.
8.
THAT otherwise all extant applications be dismissed and the proceedings be removed from the docket of Young J.
9.
THAT, if after forty-five (45) days there are no further proceedings in this Court then all of the original exhibit documents, and in particular exhibit “W9” being the original but now cancelled Egyptian passport of the husband, are to be returned to the parties by the Court and the parties provide an appropriate receipt upon receiving all such exhibits.
IT IS CERTIFIED
10.
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.
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.