Weinhopf and Weinhopf - [2009] FamCA 1084

FAMILY COURT OF AUSTRALIA

WEINHOPF & WEINHOPF

[2009] FamCA 1084

FAMILY LAW – PROPERTY – s 79 – Contributions to the marital pool – International property – Add backs – Discretionary considerations – s 75(2) considerations

Family Law Act 1975 (Cth)

Bremner & Bremner (1994) 18 Fam LR 407
Cahill & Cahill (2006) FLC 92-253
C v C [1998] FamCA 143
Chorn & Hopkins [2004] FLC 93-204
Clauson & Clauson (1995) FLC 92-595
Coghlan & Coghlan (2005) FLC 93-220
D & D (Full Court, unreported, 30 April 1992)
G & G (1984) FLC 91-582
Gosper & Gosper (1987) FLC 91-818
Gutherie & Gutherie (1995) FLC 92-647

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

In the Marriage of Best (1993) FLC 92-418
In the Marriage of Bonnici (1991) 15 FamLR 138
In the Marriage of Money (1994) FLC 92-485
In the marriage of Norbis (1984) FLC 910543
In the Marriage of Pierce (1998) 24 Fam LR 377
Mallet & Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
Pellegrino v Pellegrino (1997) FLC 92-789
Townsend & Townsend (1995) FLC 92-569

APPLICANT HUSBAND:

Mr Weinhopf

RESPONDENT WIFE:

Ms Weinhopf

FILE NUMBER:

BRC

3730

2008

DATE DELIVERED:

17 November 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

19 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Forrest

SOLICITOR FOR THE APPLICANT:

Hall Payne Lawyers of Brisbane

COUNSEL FOR THE RESPONDENT:

Mr Byrne

SOLICITOR FOR THE RESPONDENT:

Simonidis Shoebridge Lawyers of Brisbane

Orders

As and by way of settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth) (as amended):

The husband shall do all such things, pay all such monies and sign all such documents as might be necessary to:
(a)Transfer to the wife within 30 days of the date of these orders any right, title, claim or interest he has, or may have, in and to the real property being H property in the State of Queensland;
(b)Transfer to the wife within 30 days of the date of these orders, the Ford Fairmont and Daewoo motor vehicles;
(c)Forthwith abandon any right, title claim or interest he has, or may have, in and to the funds standing to the credit of the wife at the Westpac bank, R branch and to any and all property of whatever type or description owned by, or in the name of, the wife situated at the date of these Orders outside of Australia to the intent that all shall vest absolutely in the wife;
(d)Forthwith abandon any right, title claim or interest he has, or may have, in and to any and all superannuation interests of the wife to the intent that same shall vest absolutely in the wife;
(e)Forthwith abandon any right, title claim or interest he has, or may have, in and to any and all furniture and other chattels, not otherwise the subject of specific order, currently owned by, or otherwise in the possession…

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.

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Details

Case: [2009] FamCA 1084
Decision Date: 17 November 2009

CaseChat Overview and Summary

In *Weinhopf and Weinhopf*, Murphy J made orders for the settlement of property pursuant to s 79 of the *Family Law Act 1975* (Cth). The dispute concerned the division of various assets between the husband and wife.

The court was required to determine how the parties' property, including real estate, motor vehicles, bank funds, overseas assets, superannuation interests, and chattels, should be divided between them.

Murphy J's reasoning led to a comprehensive property settlement. The orders stipulated that the husband was to transfer his interest in a Queensland property, a Ford Fairmont, and a Daewoo motor vehicle to the wife, and abandon any claim to her overseas assets, Westpac bank funds, and superannuation. Conversely, the wife was to transfer her interest in a Queensland property and a Toyota Troupe Carrier to the husband, and abandon any claim to his overseas assets, Westpac bank funds, and superannuation. The orders also addressed the division of furniture and other chattels not specifically mentioned.

Orders

Orders of the court

As and by way of settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth) (as amended):

The husband shall do all such things, pay all such monies and sign all such documents as might be necessary to:

(a) Transfer to the wife within 30 days of the date of these orders any right, title, claim or interest he has, or may have, in and to the real property being H property in the State of Queensland;

(b) Transfer to the wife within 30 days of the date of these orders, the Ford Fairmont and Daewoo motor vehicles;

(c) Forthwith abandon any right, title claim or interest he has, or may have, in and to the funds standing to the credit of the wife at the Westpac bank, R branch and to any and all property of whatever type or description owned by, or in the name of, the wife situated at the date of these Orders outside of Australia to the intent that all shall vest absolutely in the wife;

(d) Forthwith abandon any right, title claim or interest he has, or may have, in and to any and all superannuation interests of the wife to the intent that same shall vest absolutely in the wife;

(e) Forthwith abandon any right, title claim or interest he has, or may have, in and to any and all furniture and other chattels, not otherwise the subject of specific order, currently owned by, or otherwise in the possession of the wife, to the intent that same shall vest absolutely in the wife .

The wife shall do all such things, pay all such monies and sign all such documents as might be necessary to:

(a) Transfer to the husband within 30 days of the date of these orders any right, title, claim or interest she has, or may have, in and to the real property situated O in the State of Queensland;

(b) Transfer to the husband within 30 days of the date of these orders the Toyota Troupe Carrier motor vehicle;

(c) Forthwith abandon any right, title claim or interest she has, or may have, in and to the funds standing to the credit of the husband at the Westpac bank, R branch, and to any and all property of whatever type or description owned by or in the name of the husband situated at the date of these Orders outside of Australia to the intent that all shall vest absolutely in the husband;

(d) Forthwith abandon any right, title claim or interest she has, or may have, in and to any and all superannuation interests of the husband to the intent that same shall vest absolutely in the husband;

(e) Forthwith abandon any right, title claim or interest he has, or may have, in and to any furniture and other chattels, not otherwise the subject of specific order, currently owned by, or otherwise in the possession of the husband, not otherwise the subject of specific order, to the intent that same shall vest absolutely in the husband.

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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