FAMILY COURT OF AUSTRALIA
| ZAMMIT & ZAMMIT AND ANOR | [2020] FamCA 867 |
| FAMILY LAW – PROPERTY – Applications by husband and wife for alteration of property interests – cohabitation period of 10 years – where there were short periods of separation during the marriage – two children of the marriage – where Second Respondent seeks property orders on the basis of her claims in equity – Second Respondent asserted husband acted in breach of trust by utilising monies held on trust for the benefit of her and her husband – Second Respondent asserted husband acted in breach of his fiduciary duties in utilising monies in her account under a power of attorney – consideration of whether monies were gifted to the husband by his father and the Second Respondent – where the evidence does not establish a trust – where husband transferred his one half interest in property to the Second Respondent – where husband divested funds prior to final separation – assessment of contributions – husband made greater initial contributions – contributions by wife as homemaker and parent – wife remains as primary carer of the children – orders made. |
| Family Law Act 1975 (Cth) ss 75(2), 79 |
| Barnell & Barnell (2020) FLC 93-961 Bell & Nahos [2016] FamCAFC 244 Black & Kellner (1992) FLC 92-28 Chang & Su (2002) FLC 93-118 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 Gelley & Gelley (No.2) (1992) FLC 92-291 In the Marriage of Giunti (1986) FLC 91-759 In the Marriage of Weir (1993) FLC 92-338 Jabour & Jabour (2019) FLC 93-898 Korda v Australian Executor Trustees (SA) Limited (2015) 255 CLR 62 Mallett & Mallett (1984) 56 CLR 605 Re Helen Kaye Herdegen and Kenneth John Herdegen v Commissioner of Taxation (1988) 84 ALR 271 Stanford & Stanford (2012) 247 CLR 108 Trevi & Trevi (2018) FLC 93-858 Vass & Vass [2015] FamCAFC 51 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 |
| APPLICANT: | Mr Zammit |
| FIRST RESPONDENT: | Ms Zammit |
| SECOND RESPONDENT: | Ms B Zammit |
| FILE NUMBER: | MLC | 10480 | of | 2016 |
| DATE DELIVERED: | 16 October 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Hartnett J |
| HEARING DATES: | 26, 27 & 28 May 2020 |
| POST-HEARING WRITTEN SUBMISSIONS: | 19 June 2020 by the Second Respondent; 10 July 2020 by the First Respondent; |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Arnold |
| SOLICITOR FOR THE APPLICANT: | Collins House Legal |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Puckey |
| SOLICITOR FOR THE FIRST RESPONDENT: | Pearsons Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT: | Dr Smith |
| SOLICITOR FOR THE SECOND RESPONDENT: | DSA Law |
Orders by the Court
Within 60 days of the date of these orders the Applicant husband (‘the husband’) shall sign all such documents and do all such things as required to transfer to the First Respondent wife (‘the wife’) at her expense all his right, title and interest in the property situate at and known as 2 E Street, Suburb F in the State of Victoria being the real property…
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- Case
- [2020] FamCA 867
- Decision Date
CaseChat Overview and Summary
The court found that the evidence did not establish a trust in relation to the monies in question. It proceeded to assess the parties' contributions, noting the husband's greater initial contributions and the wife's contributions as homemaker and parent, particularly as the primary carer of the children. The court considered the husband's transfer of his interest in one property to the wife and his divestment of funds prior to the final separation.
Ultimately, the court made orders for the division of property. These included the transfer of the husband's interest in the "2 E Street property" and the "1 E Street property" to the wife, and the wife's interest in the "G Street property" to the husband, with a balancing payment to be made. In the alternative, the G Street property could be sold, with proceeds distributed to achieve an overall 42% division for the wife and 58% for the husband. The husband retained his interest in a property in Country K and several vehicles, along with a business. The parties were to retain their respective superannuation entitlements and other personal property, with the husband indemnifying the wife for liabilities related to his business.
Orders
Orders of the court
Orders by the Court
1. Within 60 days of the date of these orders the Applicant husband (‘the husband’) shall sign all such documents and do all such things as required to transfer to the First Respondent wife (‘the wife’) at her expense all his right, title and interest in the property situate at and known as 2 E Street, Suburb F in the State of Victoria being the real property described in Certificate of Title Volume ... Folio … (‘the 2 E Street property’) and the wife indemnify the husband against all payments and liability pursuant to any mortgage registered against the 2 E Street property and all apportionable rates, taxes and outgoings of or with respect to the 2 E Street property of whatsoever nature and kind.
2. Within 60 days of the date of these orders the husband shall sign all such documents and do all such things as required to transfer to the wife at her expense all his right, title and interest in the property situate at and known as 1 E Street, Suburb F in the State of Victoria being the real property described in Certificate of Title Volume ... Folio ... (‘the 1 E Street property’) and the wife indemnify the husband against all apportionable rates, taxes and outgoings of or with respect to the 1 E Street property of whatsoever nature and kind.
3. Within 60 days of the date of these orders the wife shall sign all such documents and do all such things as required to transfer to the husband at his expense all her right, title and interest in the property situate at and known as G Street, Suburb H in the State of Victoria being the real property described in Certificate of Title Volume ... Folio ... (‘the G Street property’) and the husband indemnify the wife against all payments and liability pursuant to any mortgage registered against the G Street property and against all apportionable rates, taxes and outgoings of or with respect to the G Street property of whatsoever nature and kind.
4. Contemporaneously with the transfer of the G Street property to the husband in accordance with order 3 herein, the husband pay to the wife the sum of $193,431.08 (‘the payment’) with such payment to be made to the wife’s solicitors for payment out to the wife.
5. In the event that the payment has not been made pursuant to order 4 herein then the wife may elect to seek a transfer of the husband’s interest in the G Street property to her. Such election shall be in writing and within 7 days of the payment being due pursuant to these orders.
6. In the event the wife makes an election as provided for in order 5 herein then within 7 days of that election:-
6. (a) the husband do all such acts and things and sign all such documents as may be required to transfer to the wife at the expense of the wife all of his right, title and interest in the G Street property; and
6. (b) the wife indemnify the husband against all payments, liabilities, and instalments pursuant to any mortgage and all rates, taxes and like apportionable outgoings over the G Street property; and
6. (c) the wife have the sole right to occupy the G Street property.
7. Contemporaneously with the transfer of the G Street property to the wife in accordance with order 6 herein, the wife pay to the husband the sum of $359,568.92 (‘the second payment’) with such payment to be made to the husband’s solicitors for payment out to the husband.
8. In the event that the wife makes no election as set out in order 5 herein or fails to make the second payment in accordance with order 7 herein then the husband and wife shall sign all documents and do all things necessary to forthwith place the G Street property on the market for sale altogether out of the Court (‘the G Street property sale’) and upon completion of the sale, the proceeds of the sale be applied as follows:-
8. (a) first, to pay all costs, commissions and expenses of the G Street property sale;
8. (b) second, to discharge the mortgage and any other encumbrance affecting the G Street property; and
8. (c) the balance to the parties in the following shares:-
8. (i) a payment to the wife to effect an overall 42 percent division of the assets of the parties as set out in the reasons published by the Court as to the making of these orders, such payment to be made to the wife’s solicitors for payment out to the wife; and
8. (ii) a payment to the husband to effect an overall 58 percent division of the assets of the parties as set out in the reasons published by the Court as to the making of these orders, such payment to be made to the husband’s solicitors for payment out to the husband.
9. The husband retain all his right, title and interest in the property situate in Country K.
10. Each party shall be solely entitled, to the exclusion of the other parties, to all other real estate, whether in Australia or overseas, in the name or possession of the party.
11. If required, the parties shall do all acts and sign all documents to give effect to these orders.
12. Each party shall be solely liable and/or indemnify the other parties against any liability encumbering any item of property to which that party becomes entitled to pursuant to these orders.
13. Any joint tenancy of the parties in any real or personal property or estate is hereby expressly severed.
14. The wife shall be entitled to hold the children’s passports and birth certificates, together with all funds and documents held presently together at the property situate at and known as J Street, Suburb F in the State of Victoria (‘the J Street property’) as well as the two EUR500 notes which have been held for X and Y and that the husband will facilitate the provision of same at his earliest convenience.
Orders by Consent
15. The husband shall have sole right to the exclusion of the wife to the funds formerly held in his Commonwealth Bank Account Australian dollar savings account wheresoever the said funds are presently located and in the event any such funds continue to exist.
16. The wife shall have no claim to the J Street property held in the name of the Second Respondent.
17. The husband retain the Motor Vehicle 1.
18. The husband retain the work truck.
19. The husband retain the Motor Vehicle 2.
20. The husband retain all rights to the business known as P Company and all assets of the said business.
21. The husband indemnify the wife for all past, present and future liabilities of P Company and the partnership known as ‘Zammit & Zammit’ trading as P Company.
22. The parties shall retain the superannuation entitlements held in their respective names and each party shall forgo any claim or claims he or she may have to any superannuation benefit earned by or belonging to any other party.
23. The parties shall be solely entitled to the exclusion of the other to all personal property including but not limited to choses-in-action in the name or possession of the party.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zammit & Zammit has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
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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