Birk & Farwell (No 2) - [2021] FedCFamC2F 393

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Birk & Farwell (No 2) [2021] FedCFamC2F 393

File number: MLC 14486 of 2019

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 17 November 2021

Catchwords: FAMILY LAW – final property – disputes to be determined consistent with the scheme of the reasons – form of orders determined on the papers in chambers.

Legislation: Family Law Act 1975 (Cth).

Division: Division 2 Family Law

Number of paragraphs: 22

Date of last submissions: 15 November 2021

Date of hearing: On the papers in chambers

Place: Melbourne

Solicitor for the Applicant: Lopes Family Law

Solicitor for the Respondent: Westminster Lawyers Pty Ltd
ORDERS

MLC 14486 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BIRK

Applicant

AND:
MS FARWELL

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

17 NOVEMBER 2021

Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 26 November 2021
THE COURT ORDERS THAT:
1.That on or before 12 noon on Friday 17 December 2021 the respondent de facto wife (‘the Wife’) advise the applicant de facto husband (‘the Husband’), in writing or by email to his solicitors, whether or not she will pay out his interest in the former matrimonial home known as and situate at C Street, Suburb D ("the C Street, Suburb D Property").
2.In the event the Wife advises the Husband within the time and as provided at order 1 herein;
(a)that she will pay out his interest in the C Street, Suburb D Property; or
(b)that she has elected to sell the parcel of shares (described herein as “the Shares”); then
(c)the Wife forthwith sign and deliver to the Husband all documents necessary to transfer to the Husband all of her right title and interest in the following shares (“the Transfer of Shares”):
(i)4328 Company CC shares;
(ii)2708 Company KK Ordinary shares;
(iii)50 Company JJ shares;
(iv)121 Company FF shares;
(v)1735 Company GG shares; and
(vi)900 Company KK shares; and

the shares described at (i)-(vi) ~~(iv)~~ are herein described as “the Shares”.

3.That within 14 days of the Transfer of Shares the Husband sell all of the Shares and the net proceeds of the sale of these shares be forthwith distributed 41% to the Husband and 59% to the Wife.
4.That unless the provisions of order 6 herein apply, on or before 4.00 pm on Friday 14 January 2022 ("the Due Date") the Wife pay:
(a)the Husband the sum of $579,703 (“the Payment”) being, $585,056 less agreed adjustments ($4,957 being one half of private school fees agreed to be paid, and $396.36 being amounts agreed to be owing to Wife pursuant to interim financial Orders not yet discharged);
(b)pay to Mr Z the sum of $2,166 by way of costs associated with the subpoena;

5.That contemporaneously with the Payment:
(a)The Husband do all such acts and things and sign all such documents as may be required to transfer to 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 Birk & Farwell (No 2)

Details

AGLC: Birk & Farwell (No 2) [2021] FedCFamC2F 393
Case: [2021] FedCFamC2F 393
Decision Date

CaseChat Overview and Summary

In this matter, the Federal Circuit and Family Court of Australia, Division 2, heard the case between Mr Birk and Ms Farwell concerning final property settlement after their de facto relationship. The central issues revolved around the division of shares and the former matrimonial home, as well as the payment of outstanding debts and capital gains tax. The court was required to decide on the timelines for the Wife to either buy out the Husband's interest in the former matrimonial home or sell the shares and divide the proceeds, in line with the scheme determined in the earlier reasons. Additionally, the court had to resolve the dispute regarding the payment of any remaining arrears due under interim orders, the division of capital gains tax, and the allocation of superannuation interests.

Judge O'Shannessy commenced by acknowledging the extensive efforts made by both parties to reach an agreement on the form of the orders. The court determined that the Wife should have a period of 42 days from the date of the orders to decide whether she could buy out the Husband's interest in the former matrimonial home. If she could not, the shares would be sold, and the proceeds divided accordingly. The court balanced the Wife's desire to retain the shares with the need to ensure the Husband's interest was protected, and found that giving the Wife a period to decide was just and equitable. The court also ruled that any unresolved arrears under the interim orders would not be discharged by implication, emphasizing the need for evidence to determine such debts. Regarding the capital gains tax, the court adopted the Husband's proposed orders, finding no basis to differentiate between the tax liabilities of the parties. The court concluded that determining the form of the orders in chambers on the papers was in the interests of justice and dismissed the application for further written submissions.

The court's decision provided clear directives on the division of assets, the timelines for financial settlements, and the handling of tax liabilities, ensuring that both parties understood their obligations and rights moving forward.

Orders