Chalmers and Chalmers (No.2) - [2016] FCCA 2786

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHALMERS & CHALMERS (No.2)

[2016] FCCA 2786

Catchwords:
FAMILY LAW – Property – 15 year marriage – small pool – where the husband was unco-operative throughout the proceedings and failed to make adequate financial disclosure – where the orders sought by the wife deliver a result for her which is less than the Court might, left to its own devices, have ordered – where the Court is satisfied that there are good reasons for making the orders sought by the wife notwithstanding that this financially advantages the husband.

Legislation:

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

Cases cited:
Chalmers & Chalmers [2015] FCCA 2103
Stanford & Stanford (2012) FLC 93-518

Applicant:

MS CHALMERS

Respondent:

MR CHALMERS

File Number:

NCC 1484 of 2014

Judgment of:

Judge Terry

Hearing date:

19 May 2016

Date of Last Submission:

19 May 2016

Delivered at:

Newcastle

Delivered on:

2 November 2016

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

The parties shall do all acts and things and sign all documents required to authorise Bridge Street Lawyers to disburse the money held in trust from the sale of Property C as follows:
(i)$4,678.50 to the wife pursuant to Order 12(f) of the orders made on 7 August 2015;
(ii)$109,035.38 together with 65% of any amount over $124,786.90 to the wife by way of property settlement.
(iii)$11,073.02 together with 35% of any amount over $124,786.90 to the husband by way of property settlement.
As and from the date of these Orders if the wife is a partner of the business “(business omitted)” and/or “(business omitted)” that the wife transfer all her right, title and interest if any in the businesses to the husband.
As and from the date of these Orders the husband indemnify the wife and keep her indemnified with respect to the businesses known as “(business omitted)” and/or “(business omitted)” and shall indemnify the wife from any debts owing to the Australian Taxation Office on account of any unpaid partnership tax, GST or BAS and shall indemnify the wife from all or any liabilities with respect to any debtors of the business or any personal guarantees provided by the wife.
Each party is otherwise declared the owner of all property and superannuation in their possession or under their control.
Pursuant to s.106A of the Family Law Act in the event that either party fails, neglects or refuses to execute any deed, instrument or document to give validity and effect to these orders a Registrar of the Federal Circuit Court at Newcastle is appointed to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.

IT IS NOTED that publication of this judgment under the pseudonym Chalmers & Chalmers (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1484 of 2014

MS CHALMERS

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 Chalmers and Chalmers (No.2)

Details

AGLC: Chalmers and Chalmers (No.2) [2016] FCCA 2786
Case: [2016] FCCA 2786
Decision Date: 2 November 2016

CaseChat Overview and Summary

In Chalmers and Chalmers (No.2), Judge Terry of the Federal Circuit Court was required to make orders concerning the property settlement of the parties following their separation. The dispute involved the distribution of funds held in trust from the sale of a property, the division of interests in certain businesses, and the indemnification of one party from business-related liabilities.

The court was tasked with determining how the proceeds from the sale of Property C should be disbursed between the wife and the husband. Further issues included the transfer of interests in two specific businesses from the wife to the husband, and the extent to which the husband should indemnify the wife against existing and future liabilities associated with those businesses, including those owed to the Australian Taxation Office and arising from debtors or personal guarantees. The court also needed to address the ownership of all other property and superannuation held by each party.

The court ordered the disbursement of the trust funds from the sale of Property C, allocating specific amounts and percentages of any surplus to both the wife and the husband by way of property settlement. The wife was ordered to transfer her interest in the two businesses to the husband, who in turn was ordered to indemnify her against all debts and liabilities relating to those businesses, including tax obligations and personal guarantees. The court declared each party the owner of all other property and superannuation in their possession. Finally, pursuant to section 106A of the Family Law Act, a Registrar of the Federal Circuit Court was appointed to execute any necessary documents if either party failed to do so, to give effect to the orders.

Orders

Orders of the court

The parties shall do all acts and things and sign all documents required to authorise Bridge Street Lawyers to disburse the money held in trust from the sale of Property C as follows:

(i) $4,678.50 to the wife pursuant to Order 12(f) of the orders made on 7 August 2015;

(ii) $109,035.38 together with 65% of any amount over $124,786.90 to the wife by way of property settlement.

(iii) $11,073.02 together with 35% of any amount over $124,786.90 to the husband by way of property settlement.

As and from the date of these Orders if the wife is a partner of the business “(business omitted)” and/or “(business omitted)” that the wife transfer all her right, title and interest if any in the businesses to the husband.

As and from the date of these Orders the husband indemnify the wife and keep her indemnified with respect to the businesses known as “(business omitted)” and/or “(business omitted)” and shall indemnify the wife from any debts owing to the Australian Taxation Office on account of any unpaid partnership tax, GST or BAS and shall indemnify the wife from all or any liabilities with respect to any debtors of the business or any personal guarantees provided by the wife.

Each party is otherwise declared the owner of all property and superannuation in their possession or under their control.

Pursuant to s.106A of the Family Law Act in the event that either party fails, neglects or refuses to execute any deed, instrument or document to give validity and effect to these orders a Registrar of the Federal Circuit Court at Newcastle is appointed to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.

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.