ATHERTON & ATHERTON - [2015] FCCA 1448

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATHERTON & ATHERTON

[2015] FCCA 1448

Catchwords:
FAMILY LAW – Property – weight to be given to initial contributions – dispute over valuation of (omitted) business – whether or not recurring income or total income should be taken into account – whether or not husband was effective owner of the (omitted) business or only a third part owner – main asset is the business – property settlement by way of instalments.

Legislation:

Family Law Act 1975, ss.79(1), 79(2), 79(4), 75(2)

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Stanford & Stanford [2012] HCA 52
Watson & Ling (2013) 49 Fam LR 303
Pierce v Pierce (1998) FLC 92-844
Williams & Williams [2007] FamCA 313
C & C (2005) FLC 93-220
Nettle v Nettle [2009] FamCAFC 185
Rosati v Rosati (1998) FLC 92-804
Lenehan v Lenehan (1987) FLC 91-814

Applicant:

MS ATHERTON

Respondent:

MR ATHERTON

File Number:

MLC 5270 of 2013

Judgment of:

Judge Harland

Hearing dates:

9 & 10 April 2015

Date of Last Submission:

10 April 2015

Delivered at:

Melbourne

Delivered on:

1 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Hall

Solicitors for the Applicant:

Croxford Partners

The Respondent appearing in person

ORDERS

That the wife be declared the sole legal and equitable owner of the following:
(a)Her car;
(b)The amount including any interest in the trust account of Middlemass Solicitors Bendigo;
(c)Her superannuation;
(d)The amount in her account in the vicinity of $96,000;
(e)Chattels in her possession except the diamond engagement ring which is the subject of Orders by Consent.
That the husband be declared the sole legal and equitable owner of the following:
(a)His car;
(b)His superannuation;
(c)(omitted) Pty Ltd;
(d)Chattels in his possession.
That the husband indemnifies the wife against all payments and liability of any kind, including but not limited to any taxation, penalties, interest of any other charge arising out of the period of the relationship regarding any entity that the husband retains, including but not limited to (omitted) Pty Ltd.
That the husband shall pay the wife the sum of $155,000, such sum to be paid by installments of not less than $2,000 per month commencing the 20^th day of June 2015 with the right to repay part or the balance in lump sum in full or in part at any time, provided that the full amount shall have been paid on or before the 20^th day of November 2021;
The husband shall pay interest in accordance with the Federal Circuit Rules 2001 (Cth) on any amount overdue from the date due until paid in full;
That the husband within 7 days of the date of these orders do all things, and sign and lodge at his expense all necessary documents so as to remove the wife from all positions in any company or trust in which he or the wife has any interest or but for these orders would have any interest including but not limited to her being a director, secretary…

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 ATHERTON & ATHERTON

Details

AGLC: ATHERTON & ATHERTON [2015] FCCA 1448
Case: [2015] FCCA 1448
Decision Date: 1 June 2015

CaseChat Overview and Summary

This matter concerned property settlement proceedings between a husband and wife, heard in the Federal Circuit Court of Australia by Judge Harland. The dispute involved the division of various assets and liabilities between the parties.

The court was required to determine the ownership of specific assets, including cars, superannuation entitlements, bank accounts, chattels, and a shareholding in a company. The court also had to consider the husband's liability for debts and tax obligations arising during the relationship, and the terms of payment for a lump sum awarded to the wife. Furthermore, the court needed to address the removal of the wife from directorships and other positions in companies or trusts associated with the husband.

Judge Harland ordered that the wife be declared the sole legal and equitable owner of her car, superannuation, a specific bank account balance, and chattels in her possession, excluding a diamond engagement ring. The husband was declared the sole owner of his car, superannuation, a company, and chattels in his possession. The husband was ordered to indemnify the wife against all liabilities related to entities he retained, and to pay the wife a sum of $155,000 by instalments, with interest on any overdue amounts. The husband was also directed to take all necessary steps to remove the wife from any company or trust positions within seven days. The wife was to transfer her shareholding in a specific company to the husband upon full payment of the $155,000 and any accrued interest. Each party was to be solely liable for liabilities encumbering property awarded to them, and the Registrar was authorised to execute documents if a party failed to do so, pursuant to section 106A of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

That the wife be declared the sole legal and equitable owner of the following:

(a) Her car;

(b) The amount including any interest in the trust account of Middlemass Solicitors Bendigo;

(d) The amount in her account in the vicinity of $96,000;

(e) Chattels in her possession except the diamond engagement ring which is the subject of Orders by Consent.

That the husband be declared the sole legal and equitable owner of the following:

(a) His car;

(b) His superannuation;

(d) Chattels in his possession.

That the husband indemnifies the wife against all payments and liability of any kind, including but not limited to any taxation, penalties, interest of any other charge arising out of the period of the relationship regarding any entity that the husband retains, including but not limited to (omitted) Pty Ltd.

That the husband shall pay the wife the sum of $155,000, such sum to be paid by installments of not less than $2,000 per month commencing the 20th day of June 2015 with the right to repay part or the balance in lump sum in full or in part at any time, provided that the full amount shall have been paid on or before the 20th day of November 2021;

The husband shall pay interest in accordance with the Federal Circuit Rules 2001 (Cth) on any amount overdue from the date due until paid in full;

That the husband within 7 days of the date of these orders do all things, and sign and lodge at his expense all necessary documents so as to remove the wife from all positions in any company or trust in which he or the wife has any interest or but for these orders would have any interest including but not limited to her being a director, secretary or public officer, trustee or otherwise.

The wife shall transfer to the husband or his nominee all of her shareholding in (omitted) Pty Ltd once the husband shall have paid the said sum in paragraph 4 hereof together with any interest due in full.

That each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

That the parties do all such acts and things and sign all such documents and the wife provide bank account details for payment by monthly credit the sum in paragraph 4 hereof.

10.

That unless otherwise specified in these orders each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person who appears on the bank's record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the condition for payments out of such entitlements.

11.

That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act 1975 that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.

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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