Thomson and Thomson - [2010] FamCA 226

FAMILY COURT OF AUSTRALIA

THOMSON & THOMSON

[2010] FamCA 226

FAMILY LAW – PROPERTY SETTLEMENT – determination of asset pool – where husband failed to make full and frank disclosure.

FAMILY LAW – PROPERTY SETTLEMENT – adjustment of property interests – where husband sought loading for his post separation contributions – held inappropriate to award any loading to the husband on account of contributions – no adjustment on consideration of s 75(2) factors – asset pool divided equally

Family Law Act 1975 (Cth) s 75(2), 79(2) & 79(4)(e)

Oriolo and Oriolo (1985) FLC 91-653
Weir and Weir (1993) FLC 92-338
Black and Kellner (1992) FLC 92-287
Chang v Su (2002) FLC 93-117
Kannis and Kannis [2002] FamCA 1150
Gould and Gould (2007) FLC 93-333
Jones v Dunkel (1959) 101 CLR 298
GWR & VAR [2006] FamCA 894

APPLICANT:

Ms Thomson

RESPONDENT:

Mr Thomson

FILE NUMBER:

ADC

2249

2007

DATE DELIVERED:

25 FEBRUARY 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

BURR J

HEARING DATE:

23 JUNE 2008, 3, 4, 5 JUNE 2009, 30 NOVEMBER 2009, 1, 2, 3 DECEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR BERMAN

SOLICITOR FOR THE APPLICANT:

DAVID BURRELL & CO

COUNSEL FOR THE RESPONDENT:

MS MOROSINI

SOLICITOR FOR THE RESPONDENT:

DI MOROSINI & CO

Orders

That in full and final settlement of all claims that either party may have against the other by way of settlement of property or variation of settlement of property:-
(a)    the moneys contained in L Real Estate accounts numbered …01 and …19 or otherwise held by L Real Estate on behalf of the parties be forthwith distributed as follows:-
(i)to Mr F, the sum of TWENTY THREE THOUSAND SEVEN HUNDRED AND TWENTY TWO DOLLARS [$23,722] payable to the trust account of Di Morosini & Co for and on behalf of Mr F;
(ii)to the wife, the sum of NINE HUNDRED AND NINETEEN THOUSAND FIVE HUNDRED AND NINETY ONE DOLLARS [$919,591];
(iii)to the husband, the sum of SIXTY TWO THOUSAND FIVE HUNDRED AND TWENTY DOLLARS [$62,520] payable to the trust account of Di Morosini & Co for and on behalf of the husband;
(iv)to each of the husband and the wife, one-half of any balance then remaining with each to be responsible for any taxation liability assessed as due and owing on their one-half share of any accrued interest received by them.
(b)    the husband’s estate and interest (if any) both at law and equity in the following be and the same is hereby vested in the wife:-
(i)the wife’s personal effects, clothing and jewellery;
(ii)the furniture and household effects in the wife’s possession;
(iii)B Pty Ltd plant and equipment;
(iv)B Pty Ltd (including other plant and equipment);
(v)U property;
(vi)D property;
(vii)save as otherwise specified in these Orders, any motor vehicle in the wife’s possession.
(c)    the wife’s estate and interest (if any) both at law and in equity in the following be and the same is hereby vested in the husband:-
(i)the Homestead block;
(ii)T property;
(iii)M…

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 Thomson and Thomson

Details

AGLC: Thomson and Thomson [2010] FamCA 226
Case: [2010] FamCA 226
Decision Date: 25 FEBRUARY 2010

CaseChat Overview and Summary

In the matter of Thomson and Thomson, Burr J of the Family Court of Australia made orders in full and final settlement of property and variation of property settlement claims between the parties. The dispute concerned the division of various assets, including real estate, company interests, vehicles, shares, superannuation, farming equipment, livestock, and crops, as well as the distribution of funds held by L Real Estate.

The court was required to determine the specific distribution of financial assets and the vesting of various tangible and intangible assets between the husband and wife. This included allocating responsibility for outstanding mortgage and loan instalments, rates, taxes, and other outgoings related to the properties and entities each party was to retain. Furthermore, the court needed to address the discharge of future debts and liabilities and the execution of necessary documentation to give effect to the settlement.

Burr J ordered the immediate distribution of moneys held by L Real Estate, with specific sums allocated to Mr F (presumably a third party or a pseudonym for one of the parties), the wife, and the husband, and the remaining balance to be divided equally. The orders then meticulously detailed the vesting of numerous assets, including properties, company interests, vehicles, and personal effects, in either the husband or the wife. Each party was also ordered to be responsible for and indemnify the other against any liabilities associated with the assets they retained, and to discharge their own future debts. The court also appointed a Registrar to execute any necessary documents if a party refused or neglected to do so within seven days.

Orders

Orders of the court

That in full and final settlement of all claims that either party may have against the other by way of settlement of property or variation of settlement of property:-

(a) the moneys contained in L Real Estate accounts numbered …01 and …19 or otherwise held by L Real Estate on behalf of the parties be forthwith distributed as follows:-

(i) to Mr F, the sum of TWENTY THREE THOUSAND SEVEN HUNDRED AND TWENTY TWO DOLLARS [$23,722] payable to the trust account of Di Morosini & Co for and on behalf of Mr F;

(ii) to the wife, the sum of NINE HUNDRED AND NINETEEN THOUSAND FIVE HUNDRED AND NINETY ONE DOLLARS [$919,591];

(iii) to the husband, the sum of SIXTY TWO THOUSAND FIVE HUNDRED AND TWENTY DOLLARS [$62,520] payable to the trust account of Di Morosini & Co for and on behalf of the husband;

(iv) to each of the husband and the wife, one-half of any balance then remaining with each to be responsible for any taxation liability assessed as due and owing on their one-half share of any accrued interest received by them.

(b) the husband’s estate and interest (if any) both at law and equity in the following be and the same is hereby vested in the wife:-

(i) the wife’s personal effects, clothing and jewellery;

(ii) the furniture and household effects in the wife’s possession;

(iii) B Pty Ltd plant and equipment;

(iv) B Pty Ltd (including other plant and equipment);

(v) U property;

(vi) D property;

(vii) save as otherwise specified in these Orders, any motor vehicle in the wife’s possession.

(c) the wife’s estate and interest (if any) both at law and in equity in the following be and the same is hereby vested in the husband:-

(i) the Homestead block;

(ii) T property;

(iii) M Pty Ltd;

(iv) M Pty Ltd plant and equipment;

(v) M land;

(vi) 2005 Chrysler PT Cruiser motor vehicle;

(vii) Ford F250 Dual Cab motor vehicle;

(viii) AWB shares and Incitec Pivot shares;

(ix) the husband’s MLC superannuation benefits and entitlements;

(x) farming plant and equipment;

(xi) 3 stone rollers;

(xii) 40’ x 9” Vennings Auger Self Propelled;

(xiii) Road roller;

(xiv) Hyster forklift;

(xv) Shearer Harrow;

(xvi) John Deere 440 tractor;

(xvii) Hay insurance proceeds;

(xviii) Livestock;

(xix) Crops

(d) the husband do pay or cause to be paid to the exoneration of the wife:-

(i) all mortgage and loan instalments (if any), rates and taxes and other outgoings in relation to any of the properties to be retained by the husband including (but without limiting the generality thereof):-

(A) the Homestead block;

(B) T property;

(D) M Pty Ltd;

to the exoneration of the wife and do indemnify the wife against any liability in relation to any such payment;

(e) The wife do pay or cause to be paid to the exoneration of the husband:-

(i) all mortgage and loan instalments (if any), rates and taxes and other outgoings in relation to any of the properties to be retained by the wife including (but without limiting the generality thereof):-

(A) U property;

(B) D property;

to the exoneration of the husband and do indemnify the husband against any liability in relation to such payment.

(f) Henceforth each party shall discharge without calling upon the other to contribute thereto the debts and liabilities contracted by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.

(g) Each party do all such acts and things and sign all such documents as are necessary to give effect to the terms of these Orders, with the costs associated with the transfer of any property to be met by the transferee provided that if the parties or either of them shall refuse or neglect to execute such documentation pursuant to the terms of these Orders within seven [7] days after the same shall have been tendered to him or her by or on behalf of the other party for that purpose then and in such case a Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.

That all applications be removed from the pending list.

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.