Bowers & Bowers

Case [2023] FedCFamC2F 1546


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bowers & Bowers [2023] FedCFamC2F 1546  

File number(s): MLC 6143 of 2022
Judgment of: JUDGE J YOUNG
Date of judgment: 4 December 2023
Catchwords: FAMILY LAW – PROPERTY – long marriage – modest asset pool consisting of the former matrimonial home and proceeds of sale of investment property held in trust – consideration of husband’s contributions throughout relationship – consideration of add backs sought by wife and s 75(2)(o) factors.
Legislation:

Evidence Act 1995 s 140

Family Law Act 1975 (Cth) ss 4AB(1), 75(2), 79, Part VII

Cases cited:

Aleksovski & Aleksovski (1996) FLC 92-705

Babette & Falconer (2015) FamCAFC 124

Benson & Drury [2020] FamCAFC 303

Bevan & Bevan [2013] FamCAFC 116

Browne v Green (1999) FLC 92-873

C & C [1998] FamCA 143

Chang & Su [2002] FamCA 156

Dickons & Dickons [2012] FamCAFC 154

In the Marriage of Hickey [2003] FamCA 395

In the marriage of Mehmet (1986) 11 Fam LR 322

Jabour & Jabour [2019] FamCAFC 78

Kennon & Kennon (1997) FLC 92-757

Kowaliw & Kowaliw (1981) FLC ¶91-092

Norbis & Norbis [1986] HCA 17

AJO and GRO [2005] FamCA 195

Perrin & Perrin (No 2) [2018] FAMCAFC 122

Toft & Royce [2013] FamCA 372

Trevi & Trevi [2018] FamCAFC 173

Wallis & Manning (2017) FLC 93-759

Weir & Weir (1993) FLC 92-338

Division: Division 2 Family Law
Number of paragraphs: 118
Date of last submission/s: 4 September 2023
Date of hearing: 21, 22 and 25 August 2023
Place: Melbourne (via Videoconference)
Counsel for the Applicant: Ms Skinner
Solicitor for the Applicant: LN Christie & Co
Counsel for the Respondent: Ms Fraser
Solicitor for the Respondent: Maxwell Berghouse & Ives

ORDERS

MLC 6143 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR BOWERS

Applicant

AND:

MS BOWERS

Respondent

ORDER MADE BY:

JUDGE J YOUNG

DATE OF ORDER:

4 DECEMBER 2023

THE COURT ORDERS THAT:

1.Within 30 days of the date of these Orders, the net proceeds of sale of the Suburb C property in the sum of $462,338 currently held in a Commonwealth Bank of Australia Term Deposit account (Term Deposit number #...55) controlled by the Respondent’s solicitor Maxwell Berghouse & Ives Lawyers be distributed as follows:

(a)$300,103 to the nominated trust account for the applicant husband’s solicitors; and

(b)$162,235 to the nominated trust account for the respondent wife’s solicitors.

2.The applicant and respondent do all such acts and things and sign all documents necessary to transfer the D Company shares from the joint names of the parties to the sole name of the applicant as to 50% of the shares and to the sole name of the respondent as to 50% of the shares.

3.The applicant otherwise retain for his own benefit, to the exclusion of the respondent, all other assets in his sole name or possession and forever indemnify the respondent in relation to any liability arising from or associated with the following:

(a)His Motor Vehicle 1;

(b)Bank funds held in…

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Bowers & Bowers [2023] FedCFamC2F 1546
Case
[2023] FedCFamC2F 1546
Decision Date

CaseChat Overview and Summary

The case of Bowers & Bowers involved a dispute between the former spouses, Mr. Bowers and Ms. Bowers, over the distribution of assets following their separation. The primary issue was the allocation of the net proceeds from the sale of a property located in Suburb C, held in trust, and the division of other assets including shares, vehicles, and superannuation benefits. The Federal Circuit and Family Court of Australia (Division 2) had to determine how to distribute these assets in light of the parties' contributions and the statutory factors under the Family Law Act 1975.

The court examined the contributions made by both parties throughout their marriage, considering both financial and non-financial inputs. The wife sought to have certain add-backs included in her asset pool, which the court had to assess under section 75(2)(o) of the Family Law Act. This section requires the court to consider the conduct of the parties, particularly any misconduct that may affect the division of property. The court also had to balance the overall fairness of the outcome, ensuring that the distribution reflected the contributions of each party.

In its decision, the court ruled that the net proceeds from the sale of the Suburb C property should be divided equally between the parties' legal accounts. It further ordered the transfer of shares in D Company to the parties in equal proportions. The court also directed that each party retain their respective assets, indemnifying the other against liabilities associated with those assets. The order explicitly severed any joint tenancy and made each party solely liable for any liabilities associated with their respective assets.

The final orders provided for the specific distribution of the Suburb C property proceeds and shares, and detailed the retention of personal assets by each party, along with indemnification clauses. The court mandated that each party bear their own liabilities and that any joint tenancies be dissolved. This comprehensive approach ensured a clear division of assets while considering the contributions and conduct of both parties.

Orders

Orders of the court

MLC 6143 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR BOWERS

Applicant

AND:

MS BOWERS

Respondent

ORDER MADE BY:

JUDGE J YOUNG

DATE OF ORDER:

4 DECEMBER 2023

THE COURT ORDERS THAT:

1. Within 30 days of the date of these Orders, the net proceeds of sale of the Suburb C property in the sum of $462,338 currently held in a Commonwealth Bank of Australia Term Deposit account (Term Deposit number #...55) controlled by the Respondent’s solicitor Maxwell Berghouse & Ives Lawyers be distributed as follows:

(a) $300,103 to the nominated trust account for the applicant husband’s solicitors; and

(b) $162,235 to the nominated trust account for the respondent wife’s solicitors.

2. The applicant and respondent do all such acts and things and sign all documents necessary to transfer the D Company shares from the joint names of the parties to the sole name of the applicant as to 50% of the shares and to the sole name of the respondent as to 50% of the shares.

3. The applicant otherwise retain for his own benefit, to the exclusion of the respondent, all other assets in his sole name or possession and forever indemnify the respondent in relation to any liability arising from or associated with the following:

(a) His Motor Vehicle 1;

(b) Bank funds held in accounts in his individual name;

(c) Furniture currently in his possession;

(d) His superannuation benefits;

(e) Other money and assets in his possession.

4. The respondent otherwise retain for her own use and benefit, to the exclusion of the applicant, all other assets in her sole name or possession and forever indemnify the applicant in relation to any liability arising from or associate with the following:

(a) The real property situate and known as E Street, Suburb F, in the state of New South Wales, being the whole of the land comprised in certificate of title Lot … in deposited plan …;

(b) Her Motor Vehicle 2;

(c) Furniture currently in her possession;

(d) Her superannuation benefits;

(e) Other money and assets in her possession.

5. Unless otherwise specified in these Orders, and save for the purpose of enforcing 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) in the possession of such party as at the date of these Orders;

(b) Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;

(c) Insurance policies are to remain the sole property of the owner names thereon;

(d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these Orders; and

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

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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