Week 12 - Questions & Problem Questions(1)
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Western Sydney University *
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3023
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Law
Date
May 25, 2024
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docx
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12. Property Proceedings: the Exercise of Discretion and Specific Issues
Objectives
In this class we will consider:
Review of the 5 step process for the division of property and the exercise of discretion
Consider specific issues that arise in property division cases, including
o
3rd party property
o
Apportioning losses & liabilities
o
Pre and post separation contributions
o
High assets/special skill contribution
o
Superannuation
o
Relevance of violence in property matters
o
Setting aside Court Orders- s79A FLA
Reading Riethmuller: 27.10 - 27.250; 28.40 - 28.120; 30.10 - 30.170; 30.210 - 30.300
Question
1.
What is the five-step process affirmed in the landmark case of Stanford & Stanford 2012
?
2.
What is the importance of the case of Ascott Investments
and its relationship to third parties to family law property proceedings?
3.
How does the Court consider expenditure on legal fees in the context of minimising the property pool? How does the case of Omancini 2005 assist with this issue?
4.
When looking at cases of a party ‘wasting’ or ‘destroying’ assets, what is the lead case and how does it inform the Court on what factors to consider?
5.
What are the grounds for reopening final property orders? What section of the Family Law Act applies?
Problem
Cam Merch and Jules Robin met in 1994 and married in May 1997 when she was 24 and he was 28. They moved in together when they married. Jules was working as a secretary for a small law firm when she met Cam. She had no assets at the time, but was an exchange student from Cape Town who was
completing her first year of an English course at the University of Sydney, after having obtained a law degree at the University of Cape Town in 1993. Cam was quite taken with Jules' Afrikaans accent when they met. In 1998, after becoming fluent in English, Jules secured employment as a solicitor at MSQ's Sydney office. MSQ is a large international corporate law firm based in South Africa, and with her new proficiency in English, she was able to work with the firm's large mining clients. Jules managed to work herself through the ranks of MSQ to become a Partner specialising in corporate law.
She resigned from the firm after the birth of their second child in 2005, finding the demands of a busy corporate practice and children too difficult. She was earning $250,000 a year at the time of her resignation. On resignation, Jules had accumulated
$1.2 million in superannuation with Solicitor-Super. After her resignation, Jules continued to provide advice to Cam in relation to corporate legal matters, and was his confidante in personal and business matters. At the time of the marriage, Cam had $100,000 equity in a property he had inherited and he used this as seed capital to start a telecommunications business. Shortly after they were married, Jules persuaded two media law colleagues at MSQ, James Hacker and Lachlan Turdoch, to invest with Cam in what became a large telecommunications company, Wrong-Tel. The firm was a limited liability company with Cam as director and James and Lachlan as non-executive directors. The company was valued at $68 million in late 2010, and Cam owned 100 of the company shares, then worth $3 million. Cam was paid an annual executive salary of $1.4 million.
Cam has no superannuation, but he accumulated considerable personal wealth, including the following:
Three (3) yacht cruisers valued at $1 million, $500,000, and $2.5 million respectively;
Two (2) cars, a Rolls Royce and Bentley valued at $850,000 and $450,000 respectively;
A country property in Bowral in the Southern Highlands, valued at $12.2 million which is rented out sporadically by a property management company, with a mortgage of $2 million;
The matrimonial home at Point Piper valued at $15.4 million, which is encumbered by a mortgage of $5.6 million, held with Macquarie Bank;
The furniture in the matrimonial home is valued at $100,000.
A Comsec Share Portfolio valued at $4.3 million.
The matrimonial home is in joint names at Joint Tenants, along with the mortgage in joint names. The Point Piper property was purchased in 2012, using funds saved by both Jules and Cam. Cam bought the Bowral property in 2015 for $5.5 million after receiving a dividend from WrongTel, valued at $3 million. The Bowral property is in Cam’s sole name, for tax purposes. The value of the Bowral property has increased substantially after the property was rezoned in 2017 for the Government's new high-speed rail network, and
as the property lies in the proposed corridor, will be the subject of a possible compulsory acquisition. Jules and Cam have two (2) children: Nick (13 y/o) and Cyrell (9 y/o).
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