Z and Z - [2002] FMCAfam 5

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Z & Z

[2002] FMCA fam 5

FAMILY LAW – Property settlement – loans/gifts from parents – film investment scheme – taxation liabilities – contingent debt – possible adjournment to crystalisation of debt.

Applicant:

T L Z

Respondent:

P A Z

File No:

ZB 3279 of 2000

Delivered on:

2 May 2002

Delivered at:

Brisbane

Hearing Date:

2 August 2001 and further written submissions on 5 April 2002

Judgment of:

Baumann FM

REPRESENTATION

Counsel for the Applicant:

Mr Jarrett

Solicitors for the Applicant:

Baker O’Brien & Toll

Counsel for the Respondent:

Mr Hodgson

Solicitors for the Respondent:

Sorensen & Brown

ORDERS

The Husband shall assign to the Wife, within 30 days, all his estate and interest in the property at 45A G Street, B on the basis that contemporaneously:-
(a)The Wife shall pay to the Husband the sum of $53,216.00;
(b)The Wife shall cause the current Home Mortgage (secured over the home and the M Street Unit) to be re-financed so as to relieve the Husband from any liability thereunder;
(c)The Husband shall cause the loans for the film investments to be re-financed so as to relieve the Wife of any liability thereunder.
The Husband shall abandon and relinquish any interest or claim in the Wife’s superannuation entitlement, motor vehicle, interest in the Unit at 10/5 M Street, B, furniture, chattels and other personalty in her possession and not otherwise dealt with by these orders.
The Wife shall abandon and relinquish any interest or claim in the Husband’s superannuation entitlement, motor bike, interest in the film investments (comprising the Bank guarantee), furniture, chattels and other personalty in his possession and not otherwise dealt with by these orders.
The Husband shall indemnify the Wife against any claims or demands made in respect of loans provided to him by the EC Z FAMILY TRUST or members of his family.
The parties shall share responsibility for the “taxation debt” in the proportions of 55% by the Husband and 45% by the Wife.
The term “taxation debt” shall, for the purposes of this order, mean the nett amount, if any, payable by the Husband to the Australian Taxation Office as a result of disallowed deductions, penalties and interest, for claims made by the Husband for his investment in the films “Critical Care”, “Tarzan and Jane” and “The Matrix”.
The interest of the Wife in the former matrimonial home shall be charged, as a second ranking encumbrance (after any indebtedness arising from the current loans and any necessary funds raised to meet the payment under clause 1(a) of this order), with her obligation to contribute to the nett taxation debt. If required by the Husband, the Wife shall sign all such documents as may be reasonably necessary to secure this obligation, such documents to be prepared and registered at the cost of the Husband.
The parties shall have liberty to apply to FM Baumann as to the form, enforcement or interpretation of this order.
All exhibits and subpoenaed documents shall…

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 Z and Z

Details

AGLC: Z and Z [2002] FMCAfam 5
Case: [2002] FMCAfam 5
Decision Date: 2 May 2002

CaseChat Overview and Summary

In the Family Court of Australia, the case of Z and Z addressed the property settlement and financial arrangements between the husband and wife following their divorce. The dispute primarily centred around the division of their assets, including real estate, personal property, superannuation, and various debts. The wife sought an equitable distribution of the assets, while the husband argued for a different allocation based on their respective contributions and needs.

The court had to determine the fair division of the matrimonial assets, including a property at 45A G Street, B, and an interest in a unit at 10/5 M Street, B. It also needed to address the refinancing of mortgages and loans, the allocation of personal property, and the division of superannuation entitlements. Furthermore, the court had to resolve the issue of the "taxation debt" arising from the husband's film investments and decide how this debt would be shared between the parties. The court considered the contributions of each party to the acquisition of the assets, their future needs, and the principles of fairness and justice.

The court ruled that the husband should transfer his interest in the property at 45A G Street, B to the wife in exchange for a payment of $53,216.00, the refinancing of the home mortgage, and the refinancing of loans related to the film investments. Both parties were ordered to relinquish claims on each other's personal property and superannuation. The husband was also required to indemnify the wife against claims related to loans from the EC Z FAMILY TRUST or family members. The court determined that the husband and wife should share the "taxation debt" in the proportions of 55% and 45%, respectively. The wife's interest in the former matrimonial home was charged to contribute to the nett taxation debt, with the husband bearing the cost of necessary documents. The parties retained the right to apply for further clarification or enforcement of the orders. All exhibits and subpoenaed documents were to be returned to the appropriate party within 60 days.

Orders

Orders of the court

The Husband shall assign to the Wife, within 30 days, all his estate and interest in the property at 45A G Street, B on the basis that contemporaneously:-

(a) The Wife shall pay to the Husband the sum of $53,216.00;

(b) The Wife shall cause the current Home Mortgage (secured over the home and the M Street Unit) to be re-financed so as to relieve the Husband from any liability thereunder;

(c) The Husband shall cause the loans for the film investments to be re-financed so as to relieve the Wife of any liability thereunder.

The Husband shall abandon and relinquish any interest or claim in the Wife’s superannuation entitlement, motor vehicle, interest in the Unit at 10/5 M Street, B, furniture, chattels and other personalty in her possession and not otherwise dealt with by these orders.

The Wife shall abandon and relinquish any interest or claim in the Husband’s superannuation entitlement, motor bike, interest in the film investments (comprising the Bank guarantee), furniture, chattels and other personalty in his possession and not otherwise dealt with by these orders.

The Husband shall indemnify the Wife against any claims or demands made in respect of loans provided to him by the EC Z FAMILY TRUST or members of his family.

The parties shall share responsibility for the “taxation debt” in the proportions of 55% by the Husband and 45% by the Wife.

The term “taxation debt” shall, for the purposes of this order, mean the nett amount, if any, payable by the Husband to the Australian Taxation Office as a result of disallowed deductions, penalties and interest, for claims made by the Husband for his investment in the films “Critical Care”, “Tarzan and Jane” and “The Matrix”.

The interest of the Wife in the former matrimonial home shall be charged, as a second ranking encumbrance (after any indebtedness arising from the current loans and any necessary funds raised to meet the payment under clause 1(a) of this order), with her obligation to contribute to the nett taxation debt. If required by the Husband, the Wife shall sign all such documents as may be reasonably necessary to secure this obligation, such documents to be prepared and registered at the cost of the Husband.

The parties shall have liberty to apply to FM Baumann as to the form, enforcement or interpretation of this order.

All exhibits and subpoenaed documents shall be returned to the appropriate party, at the expiration of 60 days.

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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