CHARNICK & CORLES - [2018] FCCA 3862

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHARNICK & CORLES

[2018] FCCA 3862

Catchwords:
FAMILY LAW – Property – application for an adjustment of property, determination of asset pool as wife seeks exclusion of properties from the pool as she claims they are sacred lands and seeks to include alleged loans from her family – assessment of contributions and future needs.

FAMILY LAW – Spousal Maintenance – wife’s claim for periodic spousal maintenance dismissed.

Legislation:

Evidence Act 1995 (Cth) s.140

Family Law Act 1975 (Cth), ss.72, 75(2), 79

Cases cited:

Re F: Litigants in Person Guidelines (2001) FLC 93-072
Bell & Nahos [2016] FamCAFC 244
Jones & Dunkel (1959) 101 CLR 298
Stanford v Stanford [2012] HCA 52
In the Marriage of Hickey [2003] FamCA 395
In the Marriage of CK and I W Kennon (1997) 22 FamLR 1
Brown & Brown (2007) FLC 93-316

Applicant:

MR CHARNICK

Respondent:

MS CORLES

File Number:

MLC 10842 of 2016

Judgment of:

Judge Williams

Hearing dates:

22-24 August 2018;

29 October – 1 November 2018

Date of Last Submission:

1 November 2018

Delivered at:

Melbourne

Delivered on:

21 December 2018

REPRESENTATION

Counsel for the Applicant:

Ms A Carter

Solicitors for the Applicant:

Clancy and Triado

The Respondent:

In Person

ORDERS

The Husband pay to the Wife the sum of $22,500.00 (“the payment”) within 90 days of the date of this order.
That in the event that the whole of the payment has not been made by the date, then the Husband sign all documents and do all things necessary to forthwith sell the property situated at Property A (“Property A property”) and upon completion of the sale, the proceeds of the sale be applied:
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage and any other encumbrance affecting the real property;
(c)Thirdly, so much of the payment as is then outstanding together with interest thereon at the rate presented by the Family Law Rules adjusted monthly from the date, to the Wife;
(d)Fourthly, the balance to the husband;
That pending the payment or completion of the sale:
(a)The Husband have the sole right to occupy the Property A property and during such right of occupation the Husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the Property A property as they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party.
Subject to orders 1, 2 and 3 hereof , the husband:
(a)retain his right title and interest in the Property A property;
(b)contemporaneously with the payment referred to in paragraph 1 hereof”
(i)discharge the mortgage secured against the Property A property, so as to release the wife from all liability in relation thereto;
(ii)forthwith upon compliance with paragraph 4 (b)(i) hereof, provide evidence to the wife of a discharge of the mortgage;
(iii)withdraw any…

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 CHARNICK & CORLES

Details

AGLC: CHARNICK & CORLES [2018] FCCA 3862
Case: [2018] FCCA 3862
Decision Date: 21 December 2018

CaseChat Overview and Summary

In the matter of CHARNICK & CORLES, Judge Williams of the Family Court of Australia considered a property settlement dispute between a husband and wife. The wife sought an adjustment of property, requesting the exclusion of certain properties from the asset pool, which she claimed were sacred lands. She also sought to include alleged loans from her family in the asset pool. Additionally, the wife made a claim for periodic spousal maintenance.

The court was required to determine the extent of the parties' property interests, including whether the properties claimed by the wife as sacred lands should be excluded from the asset pool. It also needed to assess the wife's claims regarding alleged loans from her family and determine the appropriate division of the matrimonial assets and liabilities. Furthermore, the court had to consider the wife's claim for spousal maintenance.

Judge Williams reasoned that the orders made under section 79 of the *Family Law Act 1975* (Cth) would enable both parties to adequately maintain themselves. The court noted the husband's financial contribution to the support of his 15-year-old daughter. Regarding the wife's claim for a total and permanent disability insurance payout from her superannuation fund, the court found that while there was a prospect of a payment, it was unable to quantify the potential claim and that the wife had not voluntarily disclosed this outstanding claim. The court also considered that the wife's mother and/or sister had likely contributed funds to the wife during the relationship, but due to a lack of detailed evidence, definitive findings on these advances could not be made. The court acknowledged the wife's retention of two shipping containers and her continued use of the husband's ANZ credit card post-separation.

The court ordered the husband to pay the wife $22,500 within 90 days. In the event of non-payment, the husband was to sell a property identified as Property A, with the proceeds applied first to sale costs, then to discharge any mortgage, then to pay the outstanding amount to the wife, and finally the balance to the husband. Pending payment or sale, the husband was granted sole occupation of Property A, with responsibility for mortgage instalments, rates, and taxes. The court also allocated a base amount of $29,000 of the husband's interest in a superannuation fund to the wife, with specific provisions for future splittable payments. The wife's claim for spousal maintenance was dismissed. The orders further detailed the retention of various assets and liabilities by each party, including motor vehicles, bank accounts, and specific debts, and severed any joint tenancies.

Orders

Orders of the court

The Husband pay to the Wife the sum of $22,500.00 (“the payment”) within 90 days of the date of this order.

That in the event that the whole of the payment has not been made by the date, then the Husband sign all documents and do all things necessary to forthwith sell the property situated at Property A (“Property A property”) and upon completion of the sale, the proceeds of the sale be applied:

(a) First, to pay all costs, commissions and expenses of the sale;

(b) Secondly, to discharge the mortgage and any other encumbrance affecting the real property;

(c) Thirdly, so much of the payment as is then outstanding together with interest thereon at the rate presented by the Family Law Rules adjusted monthly from the date, to the Wife;

(d) Fourthly, the balance to the husband;

That pending the payment or completion of the sale:

(a) The Husband have the sole right to occupy the Property A property and during such right of occupation the Husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the Property A property as they fall due;

(b) The parties hold their respective interests in the real property upon trust pursuant to these orders; and

Subject to orders 1, 2 and 3 hereof , the husband:

(a) retain his right title and interest in the Property A property;

(b) contemporaneously with the payment referred to in paragraph 1 hereof”

(i) discharge the mortgage secured against the Property A property, so as to release the wife from all liability in relation thereto;

(ii) forthwith upon compliance with paragraph 4 (b)(i) hereof, provide evidence to the wife of a discharge of the mortgage;

(iii) withdraw any caveat he has lodged against the properties situated at Properties B1 and B2 and provide evidence to the wife of the lodgement of the Withdrawals of Caveats

The husband retain the following:

(i) his motor vehicle 1;

(ii) bank accounts in his sole name.

The husband be liable for and indemnify and keep indemnified the wife against all payments and liability, past present and future in respect to the following:

(i) the ANZ credit card in his name (ending # …);

(ii) his ANZ personal loan;

(iii) any loan owing to his parents.

The wife retain the following:

(i) her right title and interest in the properties situated at Properties B1 and B2;

(ii) the two shipping containers;

(iii) her motor vehicle 2;

(iv) bank accounts in her sole name;

(v) the chattels located at the Properties B1 and B2 properties.

The wife be liable for and indemnify and keep indemnified the husband against all payments and liability, past present and future in respect to the following:

(i) all amounts paid/advanced by Ms K or Ms L to discharge the mortgage to …Finance previously secured against the Property B1 property;

(ii) the other amounts which she claims are allegedly owing to either Ms K or Ms L.

The Court allocate, as required by s.90MT(4) of the Family Law Act 1975 (Cth), a base amount of $29,000.00 of the husband’s interest in Super Fund M as at the date of these Orders to the wife.

10.

Pursuant to s.90MT(1)(a) of the Family Law Act 1975 (Cth), whenever the Trustee of the fund makes a splittable payment out of the husband’s interest in the fund, the Trustee will:

(a) pay to the wife, or her administrators, executors, beneficiaries, heirs or assigns, to the extent permitted by law, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and

(b) make a corresponding reduction in the entitlement that the husband would have had in the fund but for these Orders.

11.

Paragraph 10 has effect from the operative time, and the operative time for the purpose of these Orders is 4 working days after the service of a sealed copy of these Orders on the trustee, with such service to be effected by the husband.

12.

The Trustee of the fund will do all such acts and things, and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law (Superannuation) Regulations 2001 (Cth), the Trustee can calculate the entitlement awarded to the wife in accordance with paragraph 11 of these Orders and pay the entitlement whenever the Trustee makes a splittable payment from the husband’s interest in the fund.

13.

The wife do all things necessary, including but not limited to, exercising her request pursuant to r.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in the wife’s name in the fund with the value of the transferable benefits calculated in accordance with r.7A.11 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).

14.

Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001 (Cth), any payment from the husband’s superannuation interest in the fund made after the Trustee has created a new interest in the wife’s name in the fund are not splittable payments.

15.

That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;

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

(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 pursuant to these orders;

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

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

I am satisfied that the orders I intend to make under s.79 enable both parties to adequately maintain themselves. (naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:(i) a party to the marriage; or(ii) a person who is a party to a de facto relationship with a party to the marriage; or(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and This is not a relevant consideration.(na) any child support under the Child Support (Assessment) Act 1989that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and The husband contributes to the financial support of the parties a 15 year old daughter. (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and The wife’s financial statement sworn 27 January 2017, at Part O states as follows:Expectation of a total and permanent disability insurance, Vic super payout in the sum of approximately $234,006, final payment to be determined. Counsel for the husband cross-examined the wife about the status of the claim. The wife’s evidence under cross-examination was as follows:i)application was still “on foot”;ii)she was unable to say when it was likely to be determined;iii)she continually asks Super Fund who are the underwriters of Vic Super when a determination will be made;iv)the application is for total and permanent disability pursuant to her superannuation scheme;v)the application was lodged in April 2017 and could take approximately two years to be assessed;vi)there was no mention in her affidavit because she was trying to seek money for her future support; it hadvii)she asserted that she had previously provided superannuation statements to the husband’s solicitors, however this was denied by the husband’s counsel. After hearing the wife’s evidence, I’m satisfied that:i)there is some prospect of her receiving a payment from her superannuation fund as a result of her total and permanent disability claim;ii)I am unable to quantify her potential claim;iii)the wife did not voluntarily disclose her outstanding claim. As previously referred to in these reasons, I consider it probable that the wife’s mother and/or sister has contributed funds to the wife during the relationship. As a result of the wife’s failure to adduce evidence as to calculations, advances, characterisation of advances and utilisation of funds, I am unable to make definitive findings. I do however, take into consideration that some funds have been advanced for the benefit of the wife. As previously referred to in these reasons, I find that the wife has retained both shipping containers for her use and I take that into consideration. Both parties agree that the wife continued to use the husband’s ANZ credit card post separation. She continued to use the credit card until June 2017, and to pay for her expenditure.