Boseman and Boseman - [2020] FCCA 1470

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOSEMAN & BOSEMAN

[2020] FCCA 1470

Catchwords:
FAMILY LAW – PROPERTY – 22 year relationship/marriage – assessment of the husband’s claim that he should receive a substantial adjustment in his favour because of initial contributions, family gifts and an inheritance – where the wife raised a Kennon argument but where the evidence does not justify an adjustment in the wife’s favour because of the husband’s conduct – contributions to the non-superannuation pool assessed as 57.5% by the husband and 42.5% by the wife and to the superannuation pool as 50% by each – no s. 75(2) adjustment.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79

Cases cited:

Coghlan & Coghlan (2005) FLC 93-220

Kennon & Kennon (1997) FLC 92-657

Rosati & Rosati (1998) FLC 92-804

Stanford & Stanford (2012) FLC 93-495

Williams & Williams (1985) 10 FamLR 355

Applicant:

MS BOSEMAN

Respondent:

MR BOSEMAN

File Number:

NCC 1819 of 2019

Judgment of:

Judge Terry

Hearing date:

25, 26 & 27 May 2020

Date of Last Submission:

27 May 2020

Delivered at:

Newcastle

Delivered on:

7 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr Hogg

Solicitors for the Applicant:

Joplin Lawyers

Counsel for the Respondent:

Mr Duane

Solicitors for the Respondent:

Gillard Family Lawyers

ORDERS

Within 7 days of the date of this Order the parties shall do all acts and things and sign all documents necessary to disburse the net proceeds of sale of the real property known as and situate at A Road, Town B in the State of New South Wales currently held in the trust account of C conveyancers in the following manner and priority:
(a)To pay D Pty Ltd the following amounts:
i)$5,940.00 for the outstanding partnership invoice.
ii)$28,115.00 for outstanding BAS.
(b)To pay $784,413.08 to the wife.
(c)To pay $761,270.23 to the husband.
Within 28 days of the date of these Orders the parties shall do all acts and things and sign all documents necessary to dissolve the partnership known as Mr & Ms Boseman.
The wife shall at the request of the husband sign all documents required to transfer to the husband at his expense the whole of her right title and interest in Company E.
With respect to the interest of the member spouse MR BOSEMAN in the F Superannuation Fund (“the Plan”):
(a)As required by section 90XT (4) of the Family Law Act (1975) (“the Act”), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of the member spouse, Mr Boseman from the interest of the member spouse in the Plan, the non-member spouse. Ms Boseman is entitles to be paid by the trustee of the Plan (“the Trustee”) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $72,122.00 and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order.

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 Boseman and Boseman

Details

AGLC: BOSEMAN & BOSEMAN [2020] FCCA 1470
Case: [2020] FCCA 1470
Decision Date: 7 September 2020

CaseChat Overview and Summary

In the matter of Boseman and Boseman, heard by Judge Terry, the dispute concerned the division of property and dissolution of a partnership between a husband and wife. The court was required to make orders regarding the disbursement of proceeds from the sale of a property, the dissolution of their partnership, the transfer of interest in a company, and the division of superannuation entitlements.

The court determined the specific amounts to be paid to D Pty Ltd for outstanding partnership invoices and BAS, as well as the net proceeds to be distributed to the wife and husband from the sale of their jointly owned property. Further, the court ordered the dissolution of the partnership known as Mr & Ms Boseman and stipulated that the wife was to transfer her interest in Company E to the husband at his expense. Crucially, the court made orders concerning the husband's interest in the F Superannuation Fund, specifying how splittable payments would be made to the wife in accordance with the Family Law Act and Regulations.

The court's reasoning involved applying principles of property adjustment and partnership dissolution under the Family Law Act. The orders reflect a comprehensive division of assets and liabilities, with specific provisions for the distribution of sale proceeds, company shares, and superannuation. The court also clarified the possession and responsibility for various assets and liabilities, including bank accounts, insurance policies, superannuation, and shares, and established each party's sole responsibility for debts and liabilities standing in their respective names. The court also addressed the payment of Capital Gains Tax arising from the partnership profit.

Orders

Orders of the court

Within 7 days of the date of this Order the parties shall do all acts and things and sign all documents necessary to disburse the net proceeds of sale of the real property known as and situate at A Road, Town B in the State of New South Wales currently held in the trust account of C conveyancers in the following manner and priority:

(a) To pay D Pty Ltd the following amounts:

i) $5,940.00 for the outstanding partnership invoice.

ii) $28,115.00 for outstanding BAS.

(b) To pay $784,413.08 to the wife.

Within 28 days of the date of these Orders the parties shall do all acts and things and sign all documents necessary to dissolve the partnership known as Mr & Ms Boseman.

The wife shall at the request of the husband sign all documents required to transfer to the husband at his expense the whole of her right title and interest in Company E.

With respect to the interest of the member spouse MR BOSEMAN in the F Superannuation Fund (“the Plan”):

(a) As required by section 90XT (4) of the Family Law Act (1975) (“the Act”), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of the member spouse, Mr Boseman from the interest of the member spouse in the Plan, the non-member spouse. Ms Boseman is entitles to be paid by the trustee of the Plan (“the Trustee”) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $72,122.00 and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order.

(b) The Order has effect from the operative time and the operative time is the fourth business day following the date of service of these Orders upon the Trustee.

Except as otherwise provided for by these Orders, each party shall be solely entitled to the exclusion of the other to all 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:

(a) Bank, building society, credit union accounts and the like are deemed to be in the possession of the person whose name appears on the bank, building society or credit union’s records thereof.

(b) Insurance policies are deemed to be in the possession of the beneficiary thereof.

(c) 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.

(d) Shares, debentures, units in unit trusts and the like are deemed to be in the possession of the person in whose name they are registered.

Except as otherwise provided for by these Orders, each party is solely responsible for and shall indemnify and keep indemnified the other party against any obligation to pay any part of all debts and liabilities, including contingent liabilities, and including taxation liabilities (including capital gain tax liabilities) standing in their respective sole names at the date of these Orders, or payable by them from the date of these Orders.

For the avoidance of doubt each party shall pay the Capital Gains Tax arising from the partnership profit divided equally between the husband and the wife.

Each party shall sign any and all documents necessary to give effect to these Orders at the time expressly or implicitly required by these Orders or when reasonably required to do so by written notice received from the other party.

In the event that either party refuses or neglects to execute any deed or instrument required to be executed by these Orders within 14 days of a written request to do so, the Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act to execute such deed or instrument on behalf of such refusing or neglecting party and to do all acts necessary to give validity to the operation to the deed or instrument upon the Registrar being provided with verification of such refusal or neglect by way of affidavit.

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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