CANTWELL & CANTWELL - [2017] FamCA 117

FAMILY COURT OF AUSTRALIA

CANTWELL & CANTWELL

[2017] FamCA 117

FAMILY LAW – PROPERTY – final orders – where asset pool involves a complex structure of assets held in trusts – where parties are in agreeance of a 50 per cent division of assets – where the wife seeks to retain the main income-producing asset – where the husband opposes – where consideration is given to the length of the relationship and the contributions of each party – where it is ordered that each party retain one income-producing asset of similar value

FAMILY LAW – LEGAL FEES – where it can be assumed that the husband has paid part of his legal fees from joint resources – where the wife has outstanding legal fees – where an order is made that there should be a notational add back of each party’s legal fees

Family Law Act 1975 (Cth) s 75, 79

Agius & Agius (2010) FLC 93-442
Bevan & Bevan (2013) FLC 93-545
Biltoft & Biltoft (1995) FLC 92-614
Chorn & Hopkins (2004) FLC 93-204
Masoud & Masoud (2016) FLC 93-689
Ogilvie v Adams (1981) VR 1041
Prince & Prince (1984) FLC 91-501
Stanford & Stanford (2012) 247 CLR 108
Vass & Vass (2015) 53 Fam LR 373
Weir & Weir (1993) FLC 92-338

APPLICANT:

Ms Cantwell

RESPONDENT:

Mr Cantwell

FILE NUMBER:

ADC

1215

2014

DATE DELIVERED:

3 March 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

30 November 2015, 1, 2, 3, 4 December 2015, 23 February 2016 and 16 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Beachside Legal

COUNSEL FOR THE RESPONDENT:

Mr Richards

SOLICITOR FOR THE RESPONDENT:

David Burrell & Co

Orders

That by way of settlement of property or alteration of interests in property:-
(a)Within one hundred and twenty (120) days of the date of this order the husband do pay direct to the trust account of Beachside Legal for and on behalf of the wife the sum of nine hundred and twenty three thousand four hundred and thirty five dollars ($923,435).
(b)That the husband do forthwith appoint the wife as Appointor and Trustee of CC Trust (in lieu of the current trustee DD Pty Ltd);
(c)That immediately thereafter the husband do resign as Appointor of CC Trust;
(d)the wife do have as her sole property any interest of the husband of whatsoever nature in CC Trust, including his credit loan account in the sum of fifty four thousand eight hundred and fifty dollars ($54,850) and the credit loan account of the parties in the sum of seventy six thousand eight hundred and eleven dollars ($76,811).
(e)The husband do resign as Director of K Pty Ltd as trustee of Suburb CC Trust;
(f)Any credit loan account or other interest of the husband in Suburb CC Trust to hereafter vest in the wife;
(g)That by way of distribution in specie of the interest of the wife in Cantwell Family Trust the husband do cause…

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 CANTWELL & CANTWELL

Details

AGLC: CANTWELL & CANTWELL [2017] FamCA 117
Case: [2017] FamCA 117
Decision Date: 3 March 2017

CaseChat Overview and Summary

In the matter of *Cantwell & Cantwell*, Berman J of the Family Court of Australia considered a property settlement dispute between a husband and wife. The asset pool comprised a complex structure of assets held within various trusts. The parties had reached an agreement for a 50 per cent division of their assets, but disagreed on the retention of the main income-producing asset, with the wife seeking to retain it and the husband opposing this.

The court was required to determine how the parties' respective interests in the various trust assets should be divided, particularly concerning the main income-producing asset. Additionally, the court needed to address the issue of legal fees, considering that the husband had reportedly paid some of his legal costs from joint resources while the wife had outstanding legal fees.

Berman J reasoned that a 50 per cent division of assets was appropriate, taking into account the length of the relationship and the contributions of each party. To resolve the dispute over the income-producing asset, the court ordered that each party would retain one income-producing asset of similar value. Regarding legal fees, the court made a notational add-back order for each party's legal fees, acknowledging the husband's use of joint resources and the wife's outstanding fees. The court then made detailed orders for the transfer and vesting of various trust interests, properties, and company directorships between the parties, along with specific indemnities for debts and liabilities.

Orders

Orders of the court

That by way of settlement of property or alteration of interests in property:-

(a) Within one hundred and twenty (120) days of the date of this order the husband do pay direct to the trust account of Beachside Legal for and on behalf of the wife the sum of nine hundred and twenty three thousand four hundred and thirty five dollars ($923,435).

(b) That the husband do forthwith appoint the wife as Appointor and Trustee of CC Trust (in lieu of the current trustee DD Pty Ltd);

(d) the wife do have as her sole property any interest of the husband of whatsoever nature in CC Trust, including his credit loan account in the sum of fifty four thousand eight hundred and fifty dollars ($54,850) and the credit loan account of the parties in the sum of seventy six thousand eight hundred and eleven dollars ($76,811).

(e) The husband do resign as Director of K Pty Ltd as trustee of Suburb CC Trust;

(f) Any credit loan account or other interest of the husband in Suburb CC Trust to hereafter vest in the wife;

(g) That by way of distribution in specie of the interest of the wife in Cantwell Family Trust the husband do cause the Trustee to transfer to the wife freehold and unencumbered the property commonly known as I Street, Suburb G;

(h) That by way of distribution in specie of the interests of the wife in H Trust the husband do cause its interest in H Trust and EE Syndicate (being the portion of the leasehold interest of D Street, E Town) to be transferred to the wife;

(i) Contemporaneously with the transfer referred to in 1(g) and (h) above and the payment of the sum due to her by way of settlement of property, the wife do cause mortgage number …60 to Bendigo and Adelaide Bank Limited to be discharged and the wife do thereafter indemnify the husband and the Trust in respect of any sum due to Mr EE and Ms EE;

(j) Any interest of the husband in the speed boat, motor and trailer to hereafter vest in the wife and where necessary the husband to execute all documents in order to give effect thereto;

(k) The wife do have as her sole property and free from any claim, right or entitlement of the husband the following:-

(i) Any interest of the husband in L Pty Ltd;

(ii) Any interest of the husband in FF Pty Ltd;

(iii) Any interest of the husband in GG Trust;

(iv) The wife’s savings;

(v) All chattels and other personalty presently in the possession of the wife;

(l) The husband do cause HH Pty Ltd as trustee of Mr & Ms Cantwell Superannuation Fund (“the fund”) to rollover to a fund of the wife’s choosing her 50 per cent interest in the fund on the basis that the wife shall not be forced to receive an in specie distribution as may represent her rollover entitlement;

(m) The husband do indemnify the wife and keep her forever indemnified in respect to:-

(i) All debts and liabilities of the husband;

(ii) All debts and liabilities of:-

· R Pty Ltd

· II Trust

· H Pty Ltd

· JJ Pty Ltd

· H Trust

· H Trust & Cantwell Family Trust Partnership

· H Trust & QQ Partnership

· Cantwell Suburb B Trust

· Suburb KK Trust

· Suburb KK Pty Ltd

· Suburb C Syndicate No 2

· LL Pty Ltd

· Suburb MM Trust

· Suburb MM Pty Ltd

· Suburb W Syndicate No 1

· Suburb W Syndicate No 2

· OO Pty Ltd

· Suburb B Property Syndicate

· Cantwell Family Trust

and any claim they may have against the wife

(iii) All or any income tax assessable in the wife’s hands of 2015 and 2016 financial years arising from Trust income distributions SAVE AND EXCEPT for dividends received by L Pty Ltd from Suburb CC Trust:

(n) The wife do indemnify the husband and keep him forever indemnified in respect to:-

(i) All debts and liabilities of the wife;

(ii) All debts and liabilities of:-

· GG Trust;

· FF Pty Ltd;

· L Pty Ltd

· H Trust & EE Partnership

and any other claim they may have against the other.

That in default of payment of the settlement sum either in whole or in part and in circumstances where the default shall remain outstanding for a period greater than thirty (30 days) then the parties shall do all things necessary to cause the husband’s interest in S Suburb B, held in the S Suburb B Trust, to be placed on the market for sale upon such terms and conditions as the parties may agree but in default of agreement as may be ordered by this Honourable Court and that following the sale of the said business interest and the payment out of the necessary costs of sale and the discharge of any liability pertaining thereto, the wife shall receive the settlement sum or so much of the settlement sum as shall remain outstanding together with default interest at the rate of ten (10) per cent per annum and the husband shall be entitled to the balance remaining.

That a Registrar of this Honourable Court shall have power pursuant to s 106A of the Family Law Act 1975 (Cth) to sign all such documents as may be required to give effect to these orders in circumstances where upon proof by affidavit a party has refused or neglected to sign such documents as may be presented to him or her and that such refusal or neglect has continued for a period longer than seven (7) days after the said documents were presented.

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

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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