Dewell and Harris & Anor - [2016] FamCA 938

FAMILY COURT OF AUSTRALIA

DEWELL & HARRIS AND ANOR

[2016] FamCA 938

FAMILY LAW – PROPERTY - Application by the wife for property settlement –Where the husband engaged in calculated non-disclosure – Where the husband found to be an unreliable witness – Where the wife will receive 52.5 per cent of the net assets – Where the parties’ superannuation entitlements considered as assets given the age of the parties.

FAMILY LAW – TRUSTS – Where the husband’s father was joined as the second respondent – Where the second respondent owns a Unit Trust – Where both the husband and his father were directors of the Trustee company prior to the commencement of the trial – Where the husband has engaged in extensive dealings with the Trust and his personal finances have become intermingled with those of the Trust – Where the Trust and the Trustee company are found to be financial resources of the husband.

Family Law Act 1975 (Cth) s 75(2), 79(2)
Limitation Act 1969 (NSW) s 14(1)

Stephens v Stephens & Anor (2007) FLC 93-336
Young v Queensland Trustees Ltd (1956) 99 CLR 560
Ogilvie v Adams [1981] VR 1041

APPLICANT:

Ms Dewell

RESPONDENT:

Mr Harris

2^ND RESPONDENT

Mr A Harris

FILE NUMBER:

SYC

5809

2011

DATE DELIVERED:

4 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

10, 11, 12, 13 and 14 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Horton Rhodes Legal

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Schonell

SOLICITOR FOR THE 2^ND RESPONDENT:

Milevski Family Lawyers

Orders

IT IS ORDERED

That within fourteen days the husband shall vacate the property at B Street, Suburb C, and thereafter the wife shall be responsible for all rates, charges and taxes relating to the use and occupation of the property.
That within 90 days of the date of these Orders, the husband shall:
(a)Transfer to the wife all of his right, title and interest in the property at B Street, Suburb C (“the Suburb C property”) being the land in Folio Identifier …, free of encumbrance.
(b) Pay to the wife the sum of $2,132,078.
That pending compliance with Order (2), the husband shall be restrained from further encumbering or charging the Suburb C property.
That the husband’s superannuation interests with BT Investor SuperWrap Plan pursuant to membership number … (“the Plan”) shall be split to create a superannuation interest for the wife as follows:
(a)Pursuant to section 90MT(2) of the Family Law Act 1975 (Cth) (“the Act”) and Regulation 27 of the Family Law (Superannuation) Regulations (“the Regulations”) the Court determines that the amount in relation to the husband’s superannuation in the Plan is $2,672,825.
(b)Pursuant to Section 90MT(4) of the Act the Court allocates a base amount to the wife in respect of the husband’s superannuation interests in the Plan of $1,100,000.
(c)Pursuant to section 90MT(1)(a)…

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 Dewell and Harris & Anor

Details

AGLC: Dewell and Harris & Anor [2016] FamCA 938
Case: [2016] FamCA 938
Decision Date: 4 November 2016

CaseChat Overview and Summary

In the Family Court of Australia, Rees J considered an application by a wife for property settlement against her husband and his father, who was joined as the second respondent. The dispute centred on the division of the parties' assets, including a Unit Trust owned by the husband's father, with which the husband had extensively intermingled his personal finances. The wife alleged calculated non-disclosure by the husband, who was found to be an unreliable witness.

The court was required to determine the extent of the husband's financial resources, particularly in relation to the Unit Trust and the Trustee company, and to consider how the parties' superannuation entitlements should be treated as assets for the purposes of property settlement, given their ages. The court also had to address the division of the matrimonial home and other significant assets.

Rees J reasoned that the husband's extensive dealings with the Unit Trust and the intermingling of his finances with those of the Trust meant that the Trust and its Trustee company constituted financial resources of the husband. The court found that the husband had engaged in calculated non-disclosure and was an unreliable witness. Applying principles of family law property division, the court determined that the wife should receive 52.5 per cent of the net assets.

The court ordered that the husband vacate the matrimonial home within fourteen days and transfer his interest in the property to the wife within 90 days, along with a payment of $2,132,078. The husband's superannuation interests were to be split, with the wife allocated a base amount of $1,100,000. The second respondent was declared the owner of a specific painting, and other personal property was to be retained by the respective parties, with the wife retaining two artworks and the husband retaining all other artworks, tools, and equipment.

Orders

Orders of the court

IT IS ORDERED

That within fourteen days the husband shall vacate the property at B Street, Suburb C, and thereafter the wife shall be responsible for all rates, charges and taxes relating to the use and occupation of the property.

That within 90 days of the date of these Orders, the husband shall:

(a) Transfer to the wife all of his right, title and interest in the property at B Street, Suburb C (“the Suburb C property”) being the land in Folio Identifier …, free of encumbrance.

(b) Pay to the wife the sum of $2,132,078.

That pending compliance with Order (2), the husband shall be restrained from further encumbering or charging the Suburb C property.

That the husband’s superannuation interests with BT Investor SuperWrap Plan pursuant to membership number … (“the Plan”) shall be split to create a superannuation interest for the wife as follows:

(a) Pursuant to section 90MT(2) of the Family Law Act 1975 (Cth) (“the Act”) and Regulation 27 of the Family Law (Superannuation) Regulations (“the Regulations”) the Court determines that the amount in relation to the husband’s superannuation in the Plan is $2,672,825.

(b) Pursuant to Section 90MT(4) of the Act the Court allocates a base amount to the wife in respect of the husband’s superannuation interests in the Plan of $1,100,000.

(c) Pursuant to section 90MT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the husband’s superannuation in the Plan the wife is entitled to be paid an amount calculated in accordance with the Regulations where the base amount is $1,100,000 and there is a corresponding reduction in the entitlement of the husband at the time of the splittable payment.

(d) That the operative time for payment under this Order is four business days after service of this Order.

(e) That the Trustee of the Plan shall do all acts and things and sign all documents required to calculate the entitlement and make payment to the wife pursuant to these Orders.

(f) That having been accorded procedural fairness in relation to the making of this Order, this Order binds the Trustee of the Plan.

That the second respondent is declared to be the owner of the painting by Artist PP.

That the wife retain the two Artist D artworks and that the husband retain all other artworks in addition to his tools and equipment located at the Suburb C property.

That other than as provided by these Orders, each party shall retain all property, both real and personal in his or her possession at the date hereof.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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