Calder & Calder (No. 2) - [2014] FamCA 1106

FAMILY COURT OF AUSTRALIA

CALDER & CALDER (NO. 2)

[2014] FamCA 1106

FAMILY LAW – PROPERTY – Final Orders – marriage of 33 years duration – farming property – assets in excess of $13,000,000 – where husband made significant initial contribution – husband asserts acquisition of partnership property can be traced to his pre-marriage assets – contributions made by husband’s mother – where wife made significant homemaker contribution – wife asserts notional add backs in excess of $3,500,000 – adjustment in favour of the husband in recognition of initial contribution – orders made for a distribution of property 55/45 in favour of the husband with an equal division of partnership plant, livestock and equipment.

Family Law Act 1975 (Cth) s 75(2), 79

Bevan & Bevan (2013) FLC 93-545
Bremner & Bremner (1995) FLC 92-560
Brown & Brown (2005) 33 Fam LR 245
Bulleen & Bulleen (2010) 43 Fam LR 489
Chorn & Hopkins (2004) FLC 93-204
Farnell & Farnell (1996) FLC 92-681
Hickey & Hickey (2003) FLC 93-143
Kessey & Kessey (1994) FLC 92-495
Kowaliw & Kowaliw (1981) FLC 91-092
La Costa & La Costa (2008) 38 Fam LR 412; [2007] FamCA 1176
M & M [1988] FamCA 42
Money & Money (1994) FLC 92-485
Petruski & Balewa (2013) 49 Fam LR 116
Pierce & Pierce (1999) FLC 92-844
Quaresmini & Quaresmini [1999] FamCA 1314
Stanford v Stanford (2012) 247 CLR 108
Todd & Todd [2014] FamCA 101
Truman & Truman [2013] FamCA 765
Watson & Ling [2013] FamCA 57
Woolands & Todd (2005) FLC 93-217
Wunderwald & Wunderwald (1992) FLC 92-315

APPLICANT:

Ms Calder

RESPONDENT:

Mr Calder

FILE NUMBER:

MLC

9627

2009

DATE DELIVERED:

11 December 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Berman J

HEARING DATE:

26, 27, 28, 29 November 2013, 2,3, and 4 December 2013, 17 and 18 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Geddes QC with Mr Wilson

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr Brown QC with Ms Williams

SOLICITOR FOR THE RESPONDENT:

Nedovic Lawyers

Orders

In full and final settlement of any claim that either party may have against the other by way of settlement of property or variation of or alteration of their separate interests in property pursuant to Section 79 of the Family Law Act1975 (Cth):-
(a)That within sixty (60) days of the date of this order, the husband do pay or cause to be paid to the trust account of Kennedy Partners for and on behalf of the wife the sum of EIGHT HUNDRED AND TWENTY SIX THOUSAND FOUR HUNDRED AND EIGHTY FOUR DOLLARS ($826,484) (“the settlement of sum”);
(b)Contemporaneously with the payment of the said settlement sum, the husband and wife do all things necessary both personally and in their capacity as directors and shareholders of X Pty Ltd and Y Pty Ltd to transfer to the husband absolutely the wife’s right, title and interest in and to the farming property known as “Property A” situate at CH…

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 Calder & Calder (No. 2)

Details

AGLC: Calder & Calder (No. 2) [2014] FamCA 1106
Case: [2014] FamCA 1106
Decision Date: 11 December 2014

CaseChat Overview and Summary

This case concerned property settlement proceedings between a husband and wife, heard by Berman J in the Family Court of Australia. The parties had been married for 33 years and possessed assets exceeding $13,000,000, including a significant farming property. The dispute involved the husband's assertion of significant initial contributions traceable to pre-marriage assets and contributions from his mother, contrasted with the wife's substantial contributions as a homemaker and her claims for notional add-backs exceeding $3,500,000.

The court was required to determine the appropriate division of the parties' property under section 79 of the *Family Law Act 1975* (Cth). Key issues included assessing the weight to be given to the husband's initial contributions and the wife's homemaker contributions, and considering whether any notional add-backs were warranted. The court also had to consider the division of partnership assets, including plant, livestock, and equipment, and the overall adjustment of property interests in light of the parties' respective contributions and financial circumstances, as potentially informed by section 75(2) of the Act.

Berman J reasoned that while the husband had made significant initial contributions, the wife's contributions as a homemaker were also substantial and deserving of recognition. The court ultimately ordered a property distribution of 55% in favour of the husband and 45% in favour of the wife. This adjustment reflected a recognition of the husband's initial contributions, while still acknowledging the wife's significant role in the marriage. The court also ordered an equal division of the partnership's plant, livestock, and equipment. The final orders detailed the specific transfers of property, dissolution of partnerships and trusts, and financial settlements to give effect to this division.

Orders

Orders of the court

In full and final settlement of any claim that either party may have against the other by way of settlement of property or variation of or alteration of their separate interests in property pursuant to Section 79 of the Family Law Act 1975 (Cth):-

(a) That within sixty (60) days of the date of this order, the husband do pay or cause to be paid to the trust account of Kennedy Partners for and on behalf of the wife the sum of EIGHT HUNDRED AND TWENTY SIX THOUSAND FOUR HUNDRED AND EIGHTY FOUR DOLLARS ($826,484) (“the settlement of sum”);

(b) Contemporaneously with the payment of the said settlement sum, the husband and wife do all things necessary both personally and in their capacity as directors and shareholders of X Pty Ltd and Y Pty Ltd to transfer to the husband absolutely the wife’s right, title and interest in and to the farming property known as “Property A” situate at CH in the State of Victoria;

(i) cause the Calder Partnership 2008 (trading as Calder and Co), the Calder Farming Trust and the Calder Family Trust (“the farming partnership”) to be dissolved as at 31 December 2014 NOTING that the farming partnership livestock, plant and equipment is already divided pursuant to these orders AND that each of the parties entitlement to income from the farming partnership shall conclude as at the date of dissolution;

(ii) Transfer to the husband absolutely all livestock owned by the farming partnership and all other livestock currently located at Property A and/or the husband’s mother’s land and/or Property G;

(iii) Transfer to the husband absolutely all plant and equipment owned by the farming partnership and all other plant and equipment currently located at Property A and/or the husband’s mother’s land and/or Property G;

(iv) Transfer to the wife absolutely all livestock owned by the farming partnership and all other livestock currently located at Property C;

(v) Transfer to the wife absolutely all plant and equipment owned by the farming partnership and all other plant and equipment currently located at Property C;

(vi) Forthwith instruct the accountant for Calder and Co farming partnership to prepare and lodge taxation returns for the partnership for the financial years 2013, 2014 and for 2015 as at 31 December 2014;

(d) For the purposes of these orders the parties do all things necessary and sign all such documents required to make an election pursuant to Section 70 of the Income Tax Assessment Act 1997 (Cth);

(e) That the parties do all that is required to give effect to paragraphs 6 (a) and 6 (b) of the orders made 16 August 2013 in relation to the J Superannuation Fund, but that thereafter each of the parties will retain all superannuation benefit in the J Superannuation Fund belonging to each of them or to which they are entitled;

(f) That the husband do all things necessary to provide a release of the wife from all or any liability in respect of the mortgage in favour of the National Australia Bank (“NAB”) which encumbers Property A and which secures the loan facility for the balance of the purchase price of Property A together with the purchase of plant and equipment and the overdraft facility of the farming partnership and to indemnify the wife against all liability arising from any encumbrance affecting the plant and equipment as transferred to the husband pursuant to these orders;

(g) That the wife do all things necessary to transfer to the husband in accordance with his direction, all shareholding in Y Pty Ltd, X Pty Ltd and DS (1) Limited, including but not limited to:-

(i) Resigning as a director from all offices held by her in the companies;

(ii) Relinquish any power she may have pursuant to the Deeds of Settlement of the Calder Farming Trust and Calder Family Trust;

(iii) Relinquish any rights or entitlements which she may have in relation to the companies and the trusts including any monies standing to her credit in the accounts of the companies or the trusts;

(iv) Assign to the husband all her right, title and interest in the farming partnership.

(h) That the parties do all things necessary to request the trustees to vest the J Trust and to distribute equally between the husband and the wife all funds in any bank account standing to the credit of the trust;

(i) That each of the husband and the wife be responsible for and indemnify the other in relation to their personal income tax liabilities for the financial years ended 2012, 2013, 2014 and 2015 and subsequent years and to do all things necessary to prepare and lodge their respective income tax returns at their separate expense;

(j) That the wife be liable for and indemnify the husband against all liabilities incurred by her either personally or in the name of F Pty Ltd of any nature whatsoever arising from the wife’s ownership and/or occupation of Property C;

(k) That each party otherwise retain to the exclusion of the other party all real and personal assets in their respective ownership, possession and control;

(l) That each party shall be otherwise solely responsible for all of their individual personal liabilities and liabilities encumbering any property which they retain or is to be received by them and indemnify the other in relation to such liabilities;

(m) That each party will do all such things and sign all such documents as may be required to give effect to these orders PROVIDED THAT if the parties or either of them shall refuse or neglect to execute any transfer or other documentation pursuant to the terms of these orders within seven (7) days after the same shall have been tendered to him or her by or on behalf of the other party for that purpose THEN and in such case a Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his/her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as may be necessary to give full force and effect thereto.

(n) The proceedings be certified fit for counsel and senior counsel.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.