BALSAM & LACKNER - [2020] FCCA 1115

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALSAM & LACKNER

[2020] FCCA 1115

Catchwords:
FAMILY LAW – Parenting and property dispute – parenting issues resolved by consent on first day of trial – 8 year old autistic child to live with the mother and spend one night per fortnight with father – major disputes as to values of property items – major disputes arising from husband’s dissipation of funds – difficulties arising from the diminution of the pool by husband – court attempting to produce just and equitable outcome given the scope of the pool.

Legislation:

Family Law Act 1975 (Cth), s.90SF

Cases cited:

Baglio v Baglio [2013] FamCA 105

Stanford v Stanford [2012] HCA 52

Vass & Vass [2015] FamCAFC 51

Applicant:

MS BALSAM

Respondent:

MR LACKNER

File Number:

DGC 2783 of 2019

Judgment of:

Judge Burchardt

Hearing dates:

15-16 April 2020, 20-21 April 2020

Date of Last Submission:

21 April 2020

Delivered at:

Dandenong

Delivered on:

15 May 2020

REPRESENTATION

Counsel for the Applicant:

Ms Byrnes

Solicitors for the Applicant:

Borchard & Moore

Counsel for the Respondent:

Ms Smallwood SC with Ms Wald

Solicitors for the Respondent:

Marsh & Maher Richmond Bennison

Counsel for the Independent Children's Lawyer:

Ms Mansfield

Solicitors for the Independent Children's Lawyer:

White Cleland

ORDERS

Amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 on 29 May 2020

The husband retain to the exclusion of the Wife the following property:
(a)The real property situated at A Street, Town B;
(b)The add-back of $217,000 for legal expenses;
(c)His Motor Vehicle 1;
(d)His Motor Vehicle 2;
(e)His Motorcycle;
(f)His Bitcoin collection;
(g)His 30 percent interest in C Pty Ltd;
(h)His 100 percent interest in Lackner Enterprises Pty Ltd;
(i)His 100 percent interest in E Pty Ltd;
(j)All funds in his bank account;
(k)His unclaimed superannuation interests;
(l)All personal effects and furniture in the husband’s possession; and
(m)The chattels given to him by this judgment.
The wife retain to the exclusion of the husband the following property:
(a)The Country F property;
(b)The proceeds of sale of the matrimonial home of approximately $160,000 less any applicable Capital Gains Tax;
(c)Her Motor Vehicle 3;
(d)The funds available from the Bank G Offset Account ending ...0 less the $10,000 allocated for Ms H;
(e)The funds in the J Pty Ltd bank account;
(f)All funds held in her bank accounts;
(g)Her superannuation interests with Super Fund K; and
(h)All personal effects and furniture in the wife’s possession after compliance with these orders.
The Husband remain solely liable for and indemnify the Wife against all credit card debts, personal loans and any other debts in his sole name or jointly with another person.
The wife remain solely liable for and indemnify the husband against all credit card debts, personal loans and any other debts in her sole name or jointly with another person, including the $1,800 debt in Country F.
The following Orders are binding on Super Fund L as the Trustee (“the Trustee”) of the Super Fund L (“the…

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 BALSAM & LACKNER

Details

AGLC: BALSAM & LACKNER [2020] FCCA 1115
Case: [2020] FCCA 1115
Decision Date: 15 May 2020

CaseChat Overview and Summary

In this matter before Judge Burchardt, the parties, Balsam and Lackner, presented a dispute concerning parenting arrangements for their eight-year-old autistic child and a significant division of their property. The parenting issues were resolved by consent on the first day of the trial, with the child to reside with the mother and spend one night per fortnight with the father. The primary disputes revolved around the valuation of various property items and the husband's dissipation of funds, which had diminished the available pool of assets.

The court was required to determine how to achieve a just and equitable outcome in the property division, given the reduced asset pool resulting from the husband's actions. This involved assessing the value of numerous assets, including real estate, vehicles, cryptocurrency, company interests, bank accounts, and superannuation, and allocating these between the parties. The court also had to consider the allocation of debts and legal expenses.

The court's reasoning focused on distributing the remaining assets in a manner that reflected a fair division, taking into account the husband's dissipation of funds. The orders detail a comprehensive division of property, with the husband retaining specific assets such as the real property at A Street, various vehicles, his Bitcoin collection, company interests, bank accounts, and superannuation. The wife was ordered to retain the Country F property, proceeds from the sale of the matrimonial home, her motor vehicle, funds from specific bank accounts, and her superannuation interests. The orders also addressed the allocation of debts, with each party remaining solely liable for debts in their name or jointly, and included specific provisions for the division of superannuation interests.

Orders

Orders of the court

Amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 on 29 May 2020

The husband retain to the exclusion of the Wife the following property:

(a) The real property situated at A Street, Town B;

(b) The add-back of $217,000 for legal expenses;

(d) His Motor Vehicle 2;

(e) His Motorcycle;

(f) His Bitcoin collection;

(g) His 30 percent interest in C Pty Ltd;

(h) His 100 percent interest in Lackner Enterprises Pty Ltd;

(i) His 100 percent interest in E Pty Ltd;

(j) All funds in his bank account;

(k) His unclaimed superannuation interests;

(l) All personal effects and furniture in the husband’s possession; and

(m) The chattels given to him by this judgment.

The wife retain to the exclusion of the husband the following property:

(a) The Country F property;

(b) The proceeds of sale of the matrimonial home of approximately $160,000 less any applicable Capital Gains Tax;

(d) The funds available from the Bank G Offset Account ending ...0 less the $10,000 allocated for Ms H;

(e) The funds in the J Pty Ltd bank account;

(f) All funds held in her bank accounts;

(g) Her superannuation interests with Super Fund K; and

(h) All personal effects and furniture in the wife’s possession after compliance with these orders.

The Husband remain solely liable for and indemnify the Wife against all credit card debts, personal loans and any other debts in his sole name or jointly with another person.

The wife remain solely liable for and indemnify the husband against all credit card debts, personal loans and any other debts in her sole name or jointly with another person, including the $1,800 debt in Country F.

The following Orders are binding on Super Fund L as the Trustee (“the Trustee”) of the Super Fund L (“the Fund”):

(a) The base amount allocated to the Applicant out of the interest of the Respondent in the Fund is $21,566 (“the base amount”);

(b) Pursuant to section 90XT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the interest of the Respondent in the Fund, the Applicant is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount, and there be a corresponding reduction in entitlement of the Respondent;

(c) The operative time for this order is four (4) clear business days after the date of service of these Orders on the Trustee of the Fund;

(d) Until such time as the superannuation split to the Applicant pursuant to these Orders can be rolled over into a separate account to the Applicant:

(i) The Respondent will direct and authorise the Trustee of the Fund to communicate with the Applicant and/or any other person authorised by them in writing:

1. To answer any reasonable enquiries as may be made by her or on her behalf from time to time regarding her entitlement in the Fund; and

2. To give the Applicant and/or her authorised representative a copy of any notice of any application or request by the Respondent which seeks release of entitlements in the Fund in so far as that release may affect the Applicant’s entitlement in the Fund pursuant to these Orders; and

ii. The Respondent, his servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the Applicant, or her legal personal representative from receiving the benefits in the Fund to which they are entitled pursuant to these Orders;

(e) In the event that the superannuation split to the Applicant pursuant to these Orders can be rolled over into a separate account to the Applicant, each of the parties will do all such acts and things and execute all such documents as may be necessary to facilitate and implement that rollover;

(f) There be liberty to each party and the Trustee of the Fund to apply regarding the implementation of these Orders affecting the interests of the Applicant and Respondent in the Fund.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in the possession of such party as at the date of these orders including but not limited to any jewelry, furniture, furnishings, shares and motor vehicles;

(b) monies standing to the credit of the parties in any joint bank accounts are to be transferred to the wife and the parties do all acts and sign all documents necessary to close any such accounts;

(c) each party is solely liable for and indemnifies the other against any credit card debts, personal loans and debts of whatsoever nature and kind in that party’s name;

(d) insurance policies remain the sole property of the owner named therein;

(e) 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; and

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

The parties do all acts and things necessary to give effect to these orders.

The parties have liberty to apply in respect of compliance with these orders.

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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