BALL & VARSITY

Case [2010] FamCA 95


FAMILY COURT OF AUSTRALIA

BALL & VARSITY [2010] FamCA 95

FAMILY LAW – PROPERTY - Distribution of property between husband and wife - Contributions - Contributions during cohabitation were equal - Husband argued there should be an adjustment in his favour as a consequence of his greater initial contribution as well as greater post separation contributions, particularly as a parent - Husband failed to give full and frank disclosure of relevant financial matters  - Two younger children live with the husband, the oldest child lives between the two homes - Notional add backs - Treatment of paid legal fees - Orders made distributing the available assets 55 per cent to the husband and 45 per cent to the wife

Family Law Act 1975 (Cth) ss s 75(2), 79(2), 79(4)(a), (b), (c),
Child Support (Assessment) Act 1989
Evidence Act 1995 (Cth)
Family Law Rules 2004

Weir v Weir (1993) FLC 92-338
Black v Kellner (1992) FLC 92-287
Junti (1986) FLC 91-759
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595

Russell v Russell (1999) FLC 92-877
B and B [2000] FamCA 1301
Kowaliw v Kowaliw (1981) FLC 01-092
Townsend v Townsend  (1995) FLC 92-569
M & M [1998] FamCA 42
C & C [1998] FamCA 143
Chorn & Hopkins (2004) FLC 93-204

Biltoft v Biltoft (1995) FLC 92-614

Farmer and Bramley (2000) FLC 93-060
Antman (1980) FLC 92-800
Pierce (1999) FLC 92-844
Aleksovski (1996) FLC 92-705
Tomasetti (2000) FLC 93-023
Waters and Jurak (1995) FLC 92-635

APPLICANT: Ms Ball
RESPONDENT: Mr Varsity
FILE NUMBER: (P)NCC 1521 of 2007
DATE DELIVERED: 5 February 2010
(Corrigenda)
PLACE DELIVERED: Sydney
PLACE HEARD: Newcastle
JUDGMENT OF: The Hon. Justice Ryan
HEARING DATES: 8, 9 & 10 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick
SOLICITOR FOR THE APPLICANT: Boyd Olsen Lawyers
COUNSEL FOR THE RESPONDENT: Mr Schonell
SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

orders

  1. Within eight weeks the husband shall do all acts and things and execute all documents necessary to transfer to the wife all of his right, title and interest in the properties known as the N Business, T Street, N being the land in Folio Identifiers …, ..., … and the land situate and known as 3 T Street, N, being the land contained in Folio Identifier …. 

  2. Within eight weeks the husband shall do all acts and things and sign all documents necessary to transfer to the wife his right, title and interest in the business owned by the parties and trading as “The N Store” including the associated liquor license.

  3. Within eight weeks the husband shall pay to the wife $285,162.00.

  4. Unless the parties sell the F Farm property from which proceeds the wife is paid the adjusting amount, in the event that the husband fails to comply with Order 3 he shall pay interest to the wife on the balance outstanding calculated at the rate prescribed by the…

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AGLC
BALL & VARSITY [2010] FamCA 95
Case
[2010] FamCA 95
Decision Date

CaseChat Overview and Summary

In the matter of *Ball & Varsity*, Justice Ryan of the Family Court of Australia considered a property dispute between a husband and wife. The core of the disagreement revolved around the distribution of assets following their separation, with the husband seeking an adjustment in his favour due to his greater initial and post-separation contributions, particularly in his role as a parent. A significant factor in the proceedings was the husband's failure to provide full and frank disclosure of relevant financial matters.

The court was required to determine the appropriate division of the parties' property, taking into account their respective contributions, both during the cohabitation and after separation. Key issues included the treatment of notional add-backs and the allocation of legal fees paid. The court also had to consider the practical arrangements for the care of the parties' three children, two of whom resided primarily with the husband, while the eldest child divided their time between both parents.

Justice Ryan reasoned that while contributions during cohabitation were equal, the husband's arguments for a greater adjustment were not sufficiently compelling to outweigh other considerations. The court applied principles of property adjustment under the *Family Law Act 1975* (Cth), considering the financial and non-financial contributions of each party, as well as their future needs. The husband's lack of full financial disclosure was a material factor in the court's determination.

Ultimately, the court ordered a distribution of the available assets, with the husband to receive 55 per cent and the wife 45 per cent. This was to be achieved through the transfer of specific properties and businesses to the wife, a monetary payment from the husband to the wife, and the division of other joint funds and assets. Provisions were also made for the potential sale of a farm property if the husband failed to comply with the monetary payment order.

Orders

Orders of the court

1.

Within eight weeks the husband shall do all acts and things and execute all documents necessary to transfer to the wife all of his right, title and interest in the properties known as the N Business, T Street, N being the land in Folio Identifiers …, ..., … and the land situate and known as 3 T Street, N, being the land contained in Folio Identifier ….

2.

Within eight weeks the husband shall do all acts and things and sign all documents necessary to transfer to the wife his right, title and interest in the business owned by the parties and trading as “The N Store” including the associated liquor license.

3.

Within eight weeks the husband shall pay to the wife $285,162.00.

4.

Unless the parties sell the F Farm property from which proceeds the wife is paid the adjusting amount, in the event that the husband fails to comply with Order 3 he shall pay interest to the wife on the balance outstanding calculated at the rate prescribed by the Family Law Rules.

5.

Simultaneously with the husband’s compliance with Order (3) above the wife shall do all acts and things and execute all documents to transfer to the husband all of her right, title and interest in the property known as F Farm being the land contained in Folio Identifier ….

6.

That those business partnerships between the husband and the wife which have not already been dissolved are dissolved as at the date of these orders.

7.

That in default of the husband complying with Orders (3) and (4) or either of them the parties shall do all acts and things and sign all documents necessary to list the property situate at and known as F Farm for sale by private treaty and the following provisions apply:

6.1 The price be as agreed and failing agreement as determined by a valuer nominated by the President of the Institute of Valuers, the cost to be borne equally by the parties;

6.2 The agent be as agreed or as determined by the President of the Real Estate Institute of New South Wales, the cost to be borne equally by the parties;

6.3 The solicitor for the husband have conduct of the sale on behalf of the parties;

6.4 The property be listed by private treaty for a period of four months.

6.5 If the property is not sold during the four months referred to in Order 6.4 the property be listed for sale by public auction within a further eight weeks, the reserve price at such auction to be as agreed and failing agreement determined in accordance with Order 6.1 herein;

6.6 If the property is not sold at auction in accordance with the provisions of Order 6.5 the property be listed for sale by private treaty at an agreed price or failing agreement realised in accordance with further order.

6.7 That on the settlement of the sale of the property the net proceeds be paid as follows:

6.7.1 in payment of real estate agent’s commission and legal costs of sale;

6.7.2 in discharge of the mortgage secured on the property;

6.7.3 in payment of rate adjustment;

6.7.4 45 per cent to the wife plus the equivalent of any rate adjustment made in favour of the vendor and the amount if any paid pursuant to Order 6.7.3 less the sum of $74,752.00 which shall be paid to the husband, and

6.7.5 to the husband the balance.

8.

Unless otherwise specified in these orders each party is 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 purposes bank accounts are deemed to be in the possession of the person whose name appears on the banks records 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 conditions for payment out of such entitlements.

9.

That the parties shall sign all documents necessary to instruct Merrick Spicer Solicitors to distribute funds held by them on trust for the parties in the proportion of 55 per cent to the husband and the balance to the wife.

10.

That the parties shall sign all documents necessary to instruct the Commonwealth Bank to distribute joint funds held by them in the account ending with 994 in the proportion of 45 per cent to the wife, $3,500 to D’s orthodontist and the balance to the husband.

11.

In the event that either party refuses or neglects to execute any deed or instrument in order to give validity and operation to these orders then a Registrar of this Court is appointed pursuant to s 106A of the Family Law Act 1975 to execute such document or documents on behalf of the defaulting party and to do all acts and things to give validity thereto.

12.

Subject to any application for costs 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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