COLLINS & ANDREWS - [2013] FCCA 1488

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLLINS & ANDREWS

[2013] FCCA 1488

Catchwords:

FAMILY LAW – Property – where the liabilities exceed the property – just and equitable – contributions – unsecured creditors.

CHILD SUPPORT – Departure order – whether a lump sum or periodic payment is appropriate.

Legislation:

Family Law Act 1975, ss.79, 90SM, 90SF,

Child Support (Assessment)Act 1989, ss.117, 124

Bendeich & Bendeich (1993) FLC 92-355
Bevan & Bevan [2013] FamCAFC 116

Bilftoft & Bilftoft (1995) FLC 92 - 614

Browne & Green (1999) FLC 92-873

C & C (2005) FLC 93-220

Clives & Clives (2008) FLC 93-385

D & D [2005] FamCA 356

DH & RM [2004] FMCAfam 74

Dwyer v McGuire (1993)FLC 92-420

Kowaliw & Kowaliw (1981) FLC 91-902

Gyselman & Gyselman (1982) FLC 92-279

Af Petersens & Af Petersens (1981) FLC 91-095

Norbis & Norbis (1986) FLC 91-712

Pierce & Pierce (1999) FLC 92-844

Prpic & Prpic (1995) FLC 92-574

Stanford & Stanford (2012) FLC 93-518

Trustee of the Property of G Lemnos & Lemnos & Another (2009) FLC 93 – 394

Anthony Dickey, Family Law (5th ed, Lawbook Co., 2007)

Applicant:

MS COLLINS

Respondent:

MR ANDREWS

File Number:

HBC 887 of 2011

Judgment of:

Judge Baker

Hearing dates:

27 and 28 May 2013, 25 June 2013

Date of Last Submission:

27 September 2013

Delivered at:

Hobart

Delivered on:

8 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr Tresize

Solicitors for the Applicant:

M+K Dobson Mitchell & Allport

Counsel for the Respondent:

Mr Geason

Solicitors for the Respondent:

Butler Mcintyre & Butler

ORDERS

That within 120 days the Applicant transfer all her right, title and interest in the property situated at Property B to the Respondent (“the property”).
That contemporaneously with the transfer referred to in paragraph 1 the Respondent do all such acts and things to refinance the mortgage to (omitted) Bank secured over the property and indemnify the Applicant in respect of the mortgage.
That in the event that the Respondent fails to comply with paragraph 2, the parties do all acts and things and sign all documents necessary to effect a sale of the property:
(a)The listing price shall be agreed between the parties and failing agreement as determined by a valuer nominated by the President of the Real Estate Institute of Tasmania.
(b)The property shall be listed for sale by private treaty with an agent to be agreed and failing agreement as determined by a valuer nominated by the President of the Real Estate Institute of Tasmania.
The proceeds of sale be distributed as follows:
(a)To discharge the (omitted) Bank mortgage and any other encumbrances affecting the property;
(b)To pay all real estate agent’s costs, commissions and expenses of the sale of the property;
(c)To pay any council rates outstanding in respect of the property;
(d)To pay the solicitor’s costs in relation to the sale of the property;
(e)To pay the unsecured liabilities of (omitted) business and (omitted) business, proof of payment to be provided to the applicant within 7…

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 COLLINS & ANDREWS

Details

AGLC: COLLINS & ANDREWS [2013] FCCA 1488
Case: [2013] FCCA 1488
Decision Date: 8 November 2013

CaseChat Overview and Summary

In the matter of Collins & Andrews, heard before Judge Baker, the dispute concerned the division of property and liabilities between the parties, where it was acknowledged that the liabilities exceeded the available property. The court was also required to consider an application for a departure from an existing child support assessment.

The primary legal issues before the court were whether the proposed property settlement was just and equitable, considering the parties' contributions and the impact of unsecured creditors. Additionally, the court had to determine whether a lump sum or periodic payment was the appropriate method for the respondent to meet his child support obligations, following a departure from the existing assessment.

The court's reasoning focused on achieving a just and equitable outcome in the property division, acknowledging the significant unsecured liabilities of certain businesses. The orders reflect an attempt to address these liabilities by directing the sale of a property, with proceeds to be applied first to the mortgage, sale costs, and then to the unsecured creditors. The court also ordered a departure from the child support assessment, setting a new weekly amount per child, payable by the respondent in annual advance instalments.

The final orders mandated the transfer of a property from the applicant to the respondent, with provisions for refinancing or sale if refinancing failed. The proceeds of any sale were to be distributed to discharge the mortgage, sale expenses, and outstanding business liabilities. The parties were to relinquish certain interests in assets and superannuation, and each was to remain solely liable for their respective debts. The child support assessment was departed from, with the respondent ordered to pay a specified weekly amount per child in annual advance instalments.

Orders

Orders of the court

That within 120 days the Applicant transfer all her right, title and interest in the property situated at Property B to the Respondent (“the property”).

That contemporaneously with the transfer referred to in paragraph 1 the Respondent do all such acts and things to refinance the mortgage to (omitted) Bank secured over the property and indemnify the Applicant in respect of the mortgage.

That in the event that the Respondent fails to comply with paragraph 2, the parties do all acts and things and sign all documents necessary to effect a sale of the property:

(a) The listing price shall be agreed between the parties and failing agreement as determined by a valuer nominated by the President of the Real Estate Institute of Tasmania.

(b) The property shall be listed for sale by private treaty with an agent to be agreed and failing agreement as determined by a valuer nominated by the President of the Real Estate Institute of Tasmania.

The proceeds of sale be distributed as follows:

(a) To discharge the (omitted) Bank mortgage and any other encumbrances affecting the property;

(b) To pay all real estate agent’s costs, commissions and expenses of the sale of the property;

(d) To pay the solicitor’s costs in relation to the sale of the property;

(e) To pay the unsecured liabilities of (omitted) business and (omitted) business, proof of payment to be provided to the applicant within 7 days thereof.

Pending completion of the sale of the property, the respondent be solely responsible for the payment of the principal and interest instalments of the (omitted) Bank mortgage.

Pending completion of the sale of the property, the respondent be liable for and indemnify the applicant against all payments and liabilities in respect of the property including but not limited to all rates, taxes and outgoings of whatsoever nature and indemnify and keep the applicant indemnified in respect thereof.

The Respondent relinquish in favour of the Applicant any right, title or interest he may have in the following:

(a) The Applicant's (omitted) Fund superannuation entitlement;

(b) Any savings of the Applicant;

The Applicant relinquish in favour of the Respondent any right, title or interest she may have in the following:

(a) (omitted) Pty Ltd,

(b) (omitted) business

(d) Jetski

(e) Debtors

(f) Livestock

(g) Plant and equipment

(h) Any savings of the respondent

Unless otherwise specified in this order:

(a) Each party will be solely entitled to the exclusion of the other to all property in the possession and/or name of that party.

(b) Each party will be solely liable for and indemnify the other against any liability effecting or encumbering any form of property to which that party is entitled pursuant to this order.

10.

The existing child support assessment in relation to the two children X born (omitted) 2004 and Y born (omitted) 2006 be departed from.

11.

For the period 1 July 2013 to 30 June 2017 the child support payable by the respondent for the said children be set at $144.23 per week per child ($7,500.00 per annum).

12.

The respondent pay the child support in order 11 by annual payments in advance as follows:

(a) $15,000.00 on or before 90 days.

(b) $15,000.00 on 1 July 2014, 1 July 2015 and 1 July 2016.

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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