CHARLES & CHARLES - [2013] FamCA 842

FAMILY COURT OF AUSTRALIA

CHARLES & CHARLES

[2013] FamCA 842

FAMILY LAW – PROPERTY SETTLEMENT – Earlier binding financial agreement set aside by consent – significant time since separation – husband retaining post separation control of the majority of the parties’ assets and financial resources – substantial agreement as to the asset pool for division – legal costs paid to be added back to asset pool for adjustment purposes - determination as to contributions at separation – determination as to contributions post-separation to date of hearing.

FAMILY LAW – SPOUSAL MAINTENANCE – Application for periodic order by the wife – consideration of principles to be applied – having regard to orders as to property application dismissed.

Family Law Act 1975 (Cth) ss 75(2), 79, 90C

Stanford v Stanford [2012] HCA 52
Bevan & Bevan [2013] FamCAFC 116
Omacini & Omacini [2005] FamCA 195
Gollings & Scott [2007] FamCA 398
C & C (1998) FamCA 143

APPLICANT:

Ms Charles

RESPONDENT:

Mr Charles

FILE NUMBER:

SYC

5072

2008

DATE DELIVERED:

30 October 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Foster J

HEARING DATE:

9, 10, 11 and 12 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr White SC

SOLICITOR FOR THE APPLICANT:

Michael Conley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Williams

SOLICITOR FOR THE RESPONDENT:

Meyer Partners Family Lawyers

Amended pursuant to rule 17.02 of the Family Law Rules 2004

Orders

That within two months from this date the husband do all things necessary and sign all necessary documents so as to cause N Pty Ltd as trustee of the Charles Family Trust to transfer to the wife the real estate properties situate at Suburb L, Suburb W and Suburb B (“the trust properties”) unencumbered and that the husband indemnify the wife from all or any liability for income tax as a consequence of the transfer of the said properties to her either by way of personal income tax or capital gains tax provided always that in respect to the said transfers the wife shall pay any stamp duty payable to effect such transfers.
That pending the transfers provided for in the previous order the husband is restrained from doing any act or thing to interfere with the peaceful use and enjoyment and occupation by the wife of the property at Suburb L.
That the husband forthwith do all necessary things to cause N Pty Ltd as trustee of the Charles Family Trust to assign all of its right title and interest in the furniture furnishings and contents contained in the property at Suburb L to the wife.
That as and from the date of these orders the husband indemnify and keep indemnified the wife from all or any liability to or claim of whatsoever kind and whatsoever nature that may be made against her by the Charles Family Trust or its trustee including any liability that may accrue to the wife by reason of her having been a beneficiary of the said trust.
That a base amount…

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 CHARLES & CHARLES

Details

AGLC: CHARLES & CHARLES [2013] FamCA 842
Case: [2013] FamCA 842
Decision Date: 30 October 2013

CaseChat Overview and Summary

In the matter of *Charles & Charles*, Foster J considered a property settlement dispute between a husband and wife. The parties had previously entered into a binding financial agreement which was later set aside by consent. A significant period had elapsed since the parties' separation, during which the husband retained control over the majority of the couple's assets and financial resources. While there was substantial agreement regarding the asset pool to be divided, the court was required to determine issues relating to contributions made by each party both at the time of separation and up to the date of the hearing, and whether legal costs incurred should be added back to the asset pool for adjustment purposes. The wife also sought periodic spousal maintenance.

The court was required to determine the appropriate division of the parties' assets, taking into account their respective contributions, both before and after separation. A key issue was the treatment of legal costs paid by the husband, specifically whether these should be added back to the asset pool for the purpose of equitable distribution. Furthermore, the court had to consider the wife's application for spousal maintenance in light of the property settlement orders to be made.

Foster J reasoned that the husband's retention of post-separation control over the majority of assets necessitated a careful consideration of contributions made by both parties throughout the period since separation. The court applied principles of property adjustment under the *Family Law Act 1975* to achieve a just and equitable outcome. The application for spousal maintenance was dismissed, with the court finding that the property settlement orders would adequately address the wife's financial needs. The court ordered the transfer of specific real estate properties held by a trust to the wife, along with furniture and furnishings, and allocated a base amount from the husband's superannuation fund to the wife. The husband was also ordered to pay a significant sum of money to the wife in instalments. The court declared that all other property had been divided between the parties and dismissed all applications before the court, save for the issue of costs.

Orders

Orders of the court

1. That within two months from this date the husband do all things necessary and sign all necessary documents so as to cause N Pty Ltd as trustee of the Charles Family Trust to transfer to the wife the real estate properties situate at Suburb L, Suburb W and Suburb B (“the trust properties”) unencumbered and that the husband indemnify the wife from all or any liability for income tax as a consequence of the transfer of the said properties to her either by way of personal income tax or capital gains tax provided always that in respect to the said transfers the wife shall pay any stamp duty payable to effect such transfers.

2. That pending the transfers provided for in the previous order the husband is restrained from doing any act or thing to interfere with the peaceful use and enjoyment and occupation by the wife of the property at Suburb L.

3. That the husband forthwith do all necessary things to cause N Pty Ltd as trustee of the Charles Family Trust to assign all of its right title and interest in the furniture furnishings and contents contained in the property at Suburb L to the wife.

4. That as and from the date of these orders the husband indemnify and keep indemnified the wife from all or any liability to or claim of whatsoever kind and whatsoever nature that may be made against her by the Charles Family Trust or its trustee including any liability that may accrue to the wife by reason of her having been a beneficiary of the said trust.

5. That a base amount of $250 000 is allocated to the wife out of the husband’s interest in the AMP Flexible Lifetime Superannuation Fund (“the Fund”).

6. That in accordance with section 90MT(1)(a) of the Family Law Act 1975:

a) The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount referred to above; and

b) The husband’s entitlement (and the entitlement of such other person to whom splittable payments may be made) to payments out of the husband’s interest in the Fund is correspondingly reduced.

7. That the trustee of the Fund shall do all acts and things and sign all such documents as may be necessary to:

a) Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement of the wife created by the previous Order; and

b) Pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the Fund; and

c) That this order has effect from the operative time and the operative time is 4 business days from the date of service of sealed orders on the trustee and the trustee shall be at liberty to apply to the Court in relation to these orders within that 4-day period.

8. That the husband pay to the wife the sum of $605 951 as follows:

a) The sum of $250 000 within 14 days from the date of these orders;

b) The further sum of $183 426.50 within three months from the date of these orders; and

c) The further sum of $172 524.50 within six months from the date of these orders;

and in default of payment by the due dates the due sums shall accrue interest at the rate prescribed from time to time by the Family Law Rules from the due date until date of payment of the sum due and any interest accrued thereon to the wife.

9. That the application by the wife for spousal maintenance be dismissed.

10. The Court otherwise declares that the parties have divided between themselves in specie all their other property including real property, superannuation, their furniture and furnishings, their jewellery and other personal effects, chattels, cash on hand and including their cash at bank and that they have no right title or interest in or to any such items presently in the possession of or under the control of the other.

11. That save for the issue as to costs otherwise all applications before the Court be dismissed.

12. Liberty to apply in relation to implementation of these orders.

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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