BACKFORD & BANKS - [2014] FamCA 501

FAMILY COURT OF AUSTRALIA

BACKFORD & BANKS

[2014] FamCA 501

FAMILY LAW – PROPERTY SETTLEMENT – De facto relationship – Modest asset pool – Where there is a huge disparity between the parties’ respective interests in property and superannuation – Disparate initial contributions – Joint financial commitment – Wife primary homemaker and carer – Global approach – Superannuation interests treated notionally as property – Not a just and equitable result for the parties’ to retain their existing legal and equitable interests – Applicant entitled to 20 per cent of the assets and superannuation interests – Respondent entitled to 80 per cent

FAMILY LAW – PROPERTY SETTLEMENT – Jurisdiction – Relationship broke down after 1 March 2009 – Court has jurisdiction

Family Law Act 1975 (Cth) ss 4AA, 44, 90SF, 90SM, 106A

Bevan & Bevan [2013] FamCAFC 116
Docters van Leeuwen & Docters van Leeuwen (1990) FLC 92-148
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Jarrott & Jarrott [2012] FamCAFC 29
Magill v Magill (2006) 226 CLR 551
Mallett v Mallett (1984) 156 CLR 605
Marriage of Bell & Bell (1993) FLC 92-347
Marriage of Coghlan (2005) 33 Fam LR 414
Ogilvie v Adams [1981] VR 1041
ON v ON [2005] FamCA 1110
Pierce v Pierce (1999) FLC 92-844
Robb v Robb (1995) FLC 92-555; (1994) 18 Fam LR 489
Smith & Smith (1991) FLC 92-261; (1991) 15 Fam LR 206
Stanfordv Stanford (2012) FLC 93-518
Teal v Teal [2010] FamCAFC 120
Van der Linden & Kordell [2010] FamCAFC 157
Young v Queensland Trustees Ltd (1956) 99 CLR 560

APPLICANT:

Mr Backford

RESPONDENT:

Ms Banks

FILE NUMBER:

NCC

1506

2012

DATE DELIVERED:

14 July 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

30 June, 1 & 2 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr C Othen

SOLICITOR FOR THE APPLICANT:

Catherine Henry Partners

COUNSEL FOR THE RESPONDENT:

Mr I Duane

SOLICITOR FOR THE RESPONDENT:

Katie Smith Solicitor

Orders

The respondent shall pay to the applicant the sum of $178,997 within 8 weeks of the date of these orders.
Subject to compliance with Order 1 hereof, and in consideration of that payment, the respondent is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier … and Part Portion … Volume … Folio …, being the property more commonly known as … I Street, Town A, NSW (“the property”).
In default of compliance with Order 1 hereof, the parties shall do all such acts and things and sign all such documents as may be necessary to list the property for sale by public auction on the following terms.
For the purposes of implementation of Order 3 hereof:
(a)The solicitors acting for the respondent shall be the solicitors acting on the sale of the property;
(b)The property shall be listed for auction sale within 6 weeks of the date of these orders;
(c)The auctioneer, in the event of disagreement…

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 BACKFORD & BANKS

Details

AGLC: BACKFORD & BANKS [2014] FamCA 501
Case: [2014] FamCA 501
Decision Date: 14 July 2014

CaseChat Overview and Summary

This matter concerned a property settlement dispute between parties who had been in a de facto relationship. The court was required to determine the appropriate division of a modest asset pool, which included significant superannuation interests, where there was a substantial disparity between the parties' respective interests in property and superannuation. The court also confirmed its jurisdiction, as the relationship breakdown occurred after 1 March 2009.

The primary legal issues before the court were how to approach the division of assets and superannuation in circumstances of disparate initial contributions, the wife's role as the primary homemaker and carer, and the overall objective of achieving a just and equitable outcome for both parties. The court considered whether a global approach to the property settlement was appropriate, and how superannuation interests should be treated, including the notion of treating them as property for the purposes of division.

Austin J applied a global approach to the property settlement, treating the parties' superannuation interests notionally as property. The court found that it would not be a just and equitable result for the parties to retain their existing legal and equitable interests in the assets and superannuation. The court determined that the applicant was entitled to 20 per cent of the total asset and superannuation pool, while the respondent was entitled to the remaining 80 per cent.

The court ordered that the respondent pay the applicant the sum of $178,997 within eight weeks, in consideration of which the respondent would become the sole owner of the parties' jointly held property. Provisions were made for the sale of the property by public auction if the payment was not made. The applicant was declared the sole owner of his shareholding in Backford Pty Ltd, and the respondent the sole owner of her shareholding in C Pty Ltd. Each party was to retain other assets in their possession and be solely liable for associated debts. The Registrar of the Family Court was empowered to execute documents if a party failed to do so. Costs were reserved for 28 days, and all outstanding applications were dismissed.

Orders

Orders of the court

The respondent shall pay to the applicant the sum of $178,997 within 8 weeks of the date of these orders.

Subject to compliance with Order 1 hereof, and in consideration of that payment, the respondent is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier … and Part Portion … Volume … Folio …, being the property more commonly known as … I Street, Town A, NSW (“the property”).

In default of compliance with Order 1 hereof, the parties shall do all such acts and things and sign all such documents as may be necessary to list the property for sale by public auction on the following terms.

For the purposes of implementation of Order 3 hereof:

(a) The solicitors acting for the respondent shall be the solicitors acting on the sale of the property;

(b) The property shall be listed for auction sale within 6 weeks of the date of these orders;

(c) The auctioneer, in the event of disagreement between the parties, shall be the auctioneer chosen by ballot from the respective choices of the parties;

(d) The reserve price shall be as agreed between the parties, and in the event of disagreement between the parties, the reserve price nominated by the auctioneer;

(e) In the event the property is not sold by auction, or private negotiation within a further 7 days, then the property shall be submitted to successive auctions within further 6 weeks periods until sold, otherwise on the same terms and conditions as applied to the first auction; and

(f) The respondent is restrained from charging, mortgaging, or otherwise encumbering the property, other than for the sole purpose of raising funds to enable compliance with Order 1 hereof.

Upon completion of the sale of the property pursuant to Orders 3 and 4 hereof, the solicitors acting on the sale shall disburse the proceeds of sale as follows:

(a) Firstly, to pay all costs, commissions, and expenses of the sale and to pay any Council and water rates outstanding in respect of the property;

(b) Secondly, to pay to the solicitors acting for the applicant, 23.1 per cent of the balance then remaining; and

The applicant is declared the sole legal and beneficial owner (as between the parties) of his shareholding in Backford Pty Ltd.

The respondent is declared the sole legal and beneficial owner (as between the parties) of her shareholding in C Pty Ltd.

Unless otherwise provided:

(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder, investment accounts are deemed in the possession of the named investor, and superannuation entitlements are deemed in the possession of the superannuant; and

(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names, including any individual liability for capital gains tax arising out of the sale of the property pursuant to Orders 3 and 4 hereof.

In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act.

10.

Costs are reserved for 28 days.

11.

Any and all outstanding applications are dismissed.

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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