FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAPPERT & TAPPERT | [2020] FCCA 3107 |
| Catchwords: FAMILY LAW – Parenting and property – parenting orders made by consent – property – division of asset pool – issue of husband’s inheritance – inheritance to be treated as a financial resource of the husband – issue of adding back legal costs – both party’s legal costs added back – equal contributions – just and equitable division of assets. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 79, 106A. |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 Bonnici v Bonnici (1992) FLC 92-272 Calvin & McTier [2017] FamCAFC 125 Farmer & Bramley (2000) 27 FLC 316 Figgins & Figgins (2002) FLC 93-122 Gowda & Malik [2020] FCCA 2519 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Holland & Holland [2017] FamCAFC 166 Jarrott & Jarrott (No 2)[2012] FamCAFC 72 Peabody & Peabody [2013] FCCA 1980 GS & TS (2005) FLC 93-213 Stanford & Stanford [2012] HCA 52 Verley & Verley (No.2)[2008] FamCA 326 |
| Applicant: | MS TAPPERT |
| Respondent: | MR TAPPERT |
| File Number: | MLC 9629 of 2019 |
| Judgment of: | Judge McNab |
| Hearing date: | 27 October 2020 |
| Date of Last Submission: | 27 October 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 18 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Paull |
| Solicitors for the Applicant: | WL Lawyers |
| Counsel for the Respondent: | Mr D Mort |
| Solicitors for the Respondent: | Vassis & Co |
ORDERS
There be a division of the asset pool of 64% to the Applicant Wife and 36% to the Respondent Husband.
The Wife is to receive $1,730,892.67 of the value of the asset pool and the Husband is to receive $973,627.11.
Within ninety (90) days of the date of these orders:
(a)the Husband transfer to the Wife all his right, title and interest in the property situated at B(1) Street, Suburb C in the State of Victoria, being the whole of the land contained in Certificate of Title Volume ... Folio ... (“the B(1) Street, Suburb C Property”) at the expense of the Wife;
(b)the Wife transfer to the Husband all her right, title and interest in the property situated at B(2) Street, Suburb C in the State of Victoria, being the whole of the land contained in Certificate of Title Volume ... Folio ... (“the B(2) Street, Suburb C Property”) at the expense of the Respondent Husband;
(c)in the event that the mortgages over the respective properties have not been discharged, the Husband sign all documents and do all acts and things necessary to discharge the mortgage (mortgage number ...) encumbering the B(2) Street, Suburb C Property and the mortgage (mortgage number ...) encumbering the B(1) Street, Suburb C Property (“the discharge”) at the expense of the Husband;
(d)contemporaneously to the transfers, the Husband pay the Wife the sum of $651,530.67; and
(e)each party forthwith jointly appoint a qualified accountant to assess whether Capital Gains Tax (CGT) would be due and owing in the event of a triggering event in respect of…
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- AGLC
- TAPPERT & TAPPERT [2020] FCCA 3107
- Case
- [2020] FCCA 3107
- Decision Date
CaseChat Overview and Summary
The court was required to determine how the husband's inheritance should be treated within the asset pool for the purposes of division. Additionally, the court had to decide whether to add back the legal costs incurred by both the applicant wife and the respondent husband to their respective entitlements. The ultimate question was how to achieve a just and equitable division of the parties' assets, taking into account these specific issues.
Judge McNab reasoned that the husband's inheritance should be treated as a financial resource belonging to him. The court also determined that both parties' legal costs should be added back to their entitlements, effectively meaning these costs would be borne by each party individually rather than being deducted from the divisible asset pool. Applying principles of equal contributions and the need for a just and equitable outcome, the court ordered a division of the asset pool, allocating 64% to the applicant wife and 36% to the respondent husband. The orders further detailed the specific property transfers and monetary payments required to effect this division, including the discharge of mortgages.
Orders
Orders of the court
ORDERS
1. There be a division of the asset pool of 64% to the Applicant Wife and 36% to the Respondent Husband.
2. The Wife is to receive $1,730,892.67 of the value of the asset pool and the Husband is to receive $973,627.11.
3. Within ninety (90) days of the date of these orders:
3. (a) the Husband transfer to the Wife all his right, title and interest in the property situated at B(1) Street, Suburb C in the State of Victoria, being the whole of the land contained in Certificate of Title Volume ... Folio ... (“the B(1) Street, Suburb C Property”) at the expense of the Wife;
3. (b) the Wife transfer to the Husband all her right, title and interest in the property situated at B(2) Street, Suburb C in the State of Victoria, being the whole of the land contained in Certificate of Title Volume ... Folio ... (“the B(2) Street, Suburb C Property”) at the expense of the Respondent Husband;
3. (c) in the event that the mortgages over the respective properties have not been discharged, the Husband sign all documents and do all acts and things necessary to discharge the mortgage (mortgage number ...) encumbering the B(2) Street, Suburb C Property and the mortgage (mortgage number ...) encumbering the B(1) Street, Suburb C Property (“the discharge”) at the expense of the Husband;
3. (d) contemporaneously to the transfers, the Husband pay the Wife the sum of $651,530.67; and
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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