Crittenden & Crittenden (No 2)
[2022] FedCFamC1F 1012
Federal Circuit and Family Court of Australia
(DIVISION 1)
Crittenden & Crittenden (No 2) [2022] FedCFamC1F 1012
File number(s): SYC 5895 of 2015 Judgment of: BAUMANN J Date of judgment: 16 December 2022 Catchwords: FAMILY LAW – PROPERTY – Final property adjustment orders pronounced that achieve justice and equity for both parties Legislation: Family Law Act 1975 (Cth) Cases cited: Crittenden & Crittenden [2022] FedCFamC1F 892 Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 12 December 2022 Place: Brisbane Counsel for the Applicant: Mr Dura Solicitor for the Applicant: W. G. McNally Jones Staff Lawyers Solicitor for the Respondent: Manning Lawyers ORDERS
SYC 5895 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CRITTENDEN
Applicant
AND: MR CRITTENDEN
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
16 DECEMBER 2022
THE COURT ORDERS:
1.That on or before 28 February 2023, the husband is to sign all documents and do all acts and things necessary to transfer to the wife all his right, title and interest in the former matrimonial home known as and situate at C Street, Suburb B (“the Suburb B property”).
2.That simultaneous with the husband’s compliance with Order 1 above:
(a)the wife shall do all acts and things necessary to refinance the existing mortgage secured over the Suburb B property in favour of R Bank so as to discharge the husband’s liability for such mortgage and shall thereafter indemnify the husband keep him indemnified with respect to all outgoings associated with the Suburb B property; and
(b)shall pay to the husband the sum of $99,180 such sum be paid into Manning Lawyers Pty Ltd’s trust account or its nominee.
3.That in the event the wife does not comply with Order 2 above, the parties shall have liberty to apply for orders to sell the Suburb B property, with such application to be listed before the Honourable Justice Baumann.
4.That both parties be responsible for the payment of the outstanding GST liability relating to sale of the G Street property, together with any accrued interest, in the proportions of 50% to the wife and 50% to the husband, and each party shall indemnify the other party from any liability arising from their failure to pay their 50% share of the GST liability.
5.That other than as provided for by these Orders, the husband shall retain sole ownership, to the exclusion of the wife, to the following:
(a)The funds standing to his credit in any bank account in his name or to which he has an entitlement;
(b)All motor vehicles registered in his name, in his possession and/or to which he has an interest;
(c)His recreational vehicles and recreational equipment;
(d)All other items of personalty and household contents in his possession;
(e)His entitlements to any superannuation in his name; and
(f)His interest in any business.
6.That other than as provided for by these Orders, the wife shall retain sole ownership, to the exclusion of the husband, to the following:
(a)The funds standing to her credit in any bank account in his name or to which she has an entitlement;
(b)All motor vehicles registered in her name, in her possession and/or to which she has an interest;
(c)All other items of personalty and household contents in her possession; and
(d)Her entitlements to any superannuation in her name.
7.That the husband shall indemnify the wife with respect to any and all liabilities, whenever and however, arising from the entity known as N Pty Ltd trading as E Company and/or S Company and/or T Company and shall forever keep her indemnified.
8.That in the event either party fails, refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, that a Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute the deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crittenden & Crittenden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 18 November 2022, the Court published Reasons in this property case, but was unable to pronounce final orders until it received further submissions (see Crittenden & Crittenden [2022] FedCFamC1F 892 (“the Reasons”) at [88]). Some written submissions and oral submissions were received by 12 December 2022, the effect of which were that:
(a)the wife contends that:
(i)she should accept full responsibility for the agreed GST debt of $73,378 and provide an indemnity to the husband for that payment;
(ii)despite the draft orders providing for a settlement date of 31 January 2023, in oral submissions, the wife’s counsel Mr Dura submitted the settlement date should be 31 March 2023, because of the delays expected over the pending Christmas period; and
(iii)as a result of these submissions, the wife would pay the husband the sum of $73,497.
(b)the husband contends that:
(i)the GST debt, which is a joint debt, should be excluded from the pool of assets and liabilities, such that the wife make a payment to the husband of $110,186
(ii)each party should bear their 50% share of the GST liability; and
(iii)default provisions should be incorporated in the orders, for finality.
Discussion
The evidence at the final hearing demonstrated that both parties were more interested in engaging in disputes about vehicles and other equipment, than taking steps to clarify and crystallise the agreed liability for GST, arising from a sale of the jointly owned commercial property at Suburb H. I infer both parties must bear this criticism, perhaps a tactical endeavour, to ignore their taxation responsibilities now for over six years. It would have been both open, and in my view, sensible, before the proceeds of sale of the property were distributed (seemingly to pay legal expenses for this litigation), to retain sufficient monies in trust pending the crystallisation of the GST liability. Both parties chose not to do so.
In my assessment, neither party deserves to get a “windfall” if the debt is either not raised by the Australian Taxation Office, or different from the agreed quantum.
In the circumstances, and because of this uncertainty (entirely created by the actions – or inactions – of the parties and the evidence they choose to offer to the Court) I will readjust the pool by removing the GST debt as a liability. On an increased nett pool of $1,535,493 the husband’s 35% share amounts to $537,423. After allowing for the interests received or to be retained by him of $438,243 (see paragraph 86 of the Reasons), the wife will be required to make a payment to the husband of $99,180.
The orders will provide for payment by 28 February 2023. The order require the parties to bear 50% of any GST debt and to provide the other party with an indemnity to do so.
Mr Dura asserted, for the first time, that the funds to be paid by the wife to the husband be retained in trust pending the wife recovering alleged child support arrears. I do not intend to make such an order because:
(a)this matter was not argued at the hearing;
(b)in effect, any child support debt, being I understand collected by the Child Support Agency on behalf of the wife, is a Commonwealth debt which the Commonwealth has an obligation to recover or enforce. They have significant powers to do so, but have not, as I understand the evidence, done so to date; and
(c)there is no certificate of liability produced by the Child Support Registrar and I am not therefore satisfied what the debt might be and whether there are actions pending which challenged any debt or accrued penalties.
Mr Dura says that the wife’s recent discussions with the bank suggest she will be able to satisfy the payment to the husband, without the family home being sold. Whilst I have considered the submission of Mr Manning for the husband that to provide default provisions for a sale of the home is both usual and could save the parties the additional costs of returning to the Court for enforcement, or machinery orders, I hold a residual concern that the husband would be quick to take any opportunity to force the wife to sell the home, because of the level of acrimony which still exists between them.
In the, I assess, unlikely event the wife fails to make the payment to the husband as required under the orders by 28 February 2023, the parties will have liberty to apply to enforce the order, with such application to be listed before me.
The orders at the commencement of these Reasons achieve justice and equity for both parties.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 16 December 2022
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