Dickson and Dickson - [2011] FMCAfam 533

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DICKSON & DICKSON

[2011] FMCAfam 533

FAMILY LAW – Property.

Family Law Act 1975, s.79.

Applicant:

MS DICKSON

Respondent:

MR DICKSON

File Number:

BRC 10882 of 2008

Judgment of:

Howard FM

Hearing date:

31 March 2011

Date of Last Submission:

31 March 2011

Delivered at:

Brisbane

Delivered on:

31 March 2011

REPRESENTATION

Solicitors for the Applicant:

Hopgood Ganim

Solicitors for the Respondent:

Macdonnells Law

ORDERS

That the parties within fourteen days of the date of this Order forward to the Court Orders to reflect the Reasons for Judgment delivered on 21 December 2010 and 31 March 2011.

IT IS NOTED that publication of this judgment under the pseudonym Dickson & Dickson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 10882 of 2008

MS DICKSON

Applicant

And

MR DICKSON

Respondent

REASONS FOR JUDGMENT

The final hearing in respect of these property settlement proceedings took place over four days in April and July 2010. The date of the final submission sent to the Court was 8 November 2010. The judgment was delivered on 21 December 2010, but with an order that the parties, within 28 days, submit draft orders to reflect the Reasons for Judgment.
A number of matters and a number of events occurred after those Reasons were handed down, and not the least of which was the Brisbane flood that had some impact upon the parties, in that the legal firm representing the wife was affected, but also the former matrimonial home, it seems, was, whilst it wasn’t flooded, it was somewhat isolated. In any event, the parties have reached substantial agreement in relation to the form of orders in an overall respect, but there remain some areas of contention.
Before I move on to those, there were two pool items that the parties agree should be amended under the slip rule, including an amount in relation to the Dickson entities and an add-back concerning money spent by the husband. The last mentioned item should be added back into the pool because, for want of a better phrase, it was “inappropriate spending”, and the husband accepts that position. So those two items will be addressed under the slip rule, and the order that the parties forward to the Court should reflect that.
There are three issues – three other issues – that the parties currently disagree on. The first issue is the question of superannuation. In paragraph 86 of the Reasons for Judgment, the Court noted that both parties in this case have proceeded on the basis that the total net pool should include superannuation.
There is, therefore, effectively no separate consideration of the superannuation issues, either in respect of the pool item superannuation, or in respect of the contributions. In the submissions that were made by the parties, they included submissions on the pool. There does not seem to have been any disagreement as to the total superannuation. The husband’s superannuation was included in the pool in the amount of $412,731, and the wife’s superannuation was included in the sum of $234,150 - giving a total superannuation of 646,881. The other paragraph in the Reasons for Judgment that actually does refer to the superannuation is paragraph 108 under the heading of Justice And Equity. That paragraph states:
“108.To my mind an order that provides for the wife to receive 55% of the net assets (including 55% of the net superannuation) and for the husband to receive 45% of the net assets and 45% of the superannuation, is, in the circumstances, just and equitable.”
Mr Wilson, the solicitor appearing on behalf of the wife, has made a submission that it was not the intention of the Court for there to be any split in the superannuation, and the wife’s submission essentially is that the husband should keep his superannuation and the wife should keep hers - and the non-superannuation assets should then be apportioned in accordance with the division that is proposed or outlined in the Reasons. Looking closely there at paragraph 108, it does seem to me, though, that it was the Court’s intention there – as expressed in that paragraph perhaps not as eloquently as it might have been – but it seems to me that the intention is clear enough, that there was to be a split, and that the wife, to start with, would get 55 per cent of the – essentially, 55 per cent of the non-superannuation pool and 55 per cent of the superannuation.
Insofar as the husband is concerned he is to get 45 per cent of the non-superannuation pool and 45 per cent of the superannuation. It seems to me that that is the intention and that is what should occur. I understand that this will enable both parties to take some cash and some superannuation.
The next item of disagreement is in relation to the Dickson Group and whether or not the wife should have to wait to see what the wash-up is from the winding up of the Dickson entities. My view in relation to that is that the amount in question is, in overall terms, looking at the size of the pool, relatively minor, being an amount of approximately $35,000 and there is no real estimate on how long it will take for that winding up to occur. My view is that there should be a clean break and that the husband should retain whatever it is in the wash-up of the Dickson entities and the wife should not be forced to hold out waiting for that aspect of the property adjustment.
In relation to the “Division 7(A)” liability, what I note here is, well the wife says that the amounts included in the pool for the Division 7(A) liabilities should be where the line is drawn. Mr McPherson (solicitor) who appears on behalf of the husband refers the Court to various paragraphs in the Reasons from paragraph 77 in support of a submission that the proper approach is for the Court to order that the parties wait for the lodgement of the adjustment and then see what the exact tax liability is. Mr McPherson has drawn the Court’s attention to an earlier order made in August 2009. That order was made at the request of the wife. It basically was an injunction to prevent the husband from paying the tax liability. That order was sought by the wife and the order was made at that time.
Looking at the Reasons for Judgment and in particular looking at paragraph 83. In that paragraph the Court has said:
“83.To my mind the Division 7(A) liability is a matrimonial liability which should be included in the pool. I also accept that the amount of the Division 7(A) liability is a total (for the 2007/2008 and the 2008/2009 tax years) of $236,810.”
That finding was clearly made on the basis of evidence that was placed before the Court. My attention has not been drawn to any submission made by either party that the Court should make a finding (for instance) that the liability is a matrimonial liability - but do not particularise the amount - leave it merely that the parties would jointly be responsible from the pool for the payment of the Division 7(A) liability. There was no submission made that the Court should wait. The only submission made was - here is the estimate. Here is the amount. My conclusion is that that amount ($236,810) should be included in the pool as a liability.
It seems to me that the submission sought by Mr McPherson (if the husband wanted to make a submission like that) - the time to make it would have been at the trial and the Court could have then referred to it (if it was convinced) in the Reasons, for instance, by reference to the fact that the estimate is $236,810 but the true amount will not be known until the lodgement occurs and the parties should wait to see what that true amount is and seek orders that only once that is finalised should the liability be crystallised and deducted from the total of the assets.
To my mind the time for such a submission was at the trial and not now. The findings that were made in paragraph 83 are clear.
Paragraphs 83 and 108 refer to the two issues in contention - the superannuation issue and the Division 7(A) liability issue. To my mind the Reasons for Judgment, whilst relatively brief in those two paragraphs, do nonetheless, clearly enough state the Court’s position. There is to be a superannuation split - because the words of that paragraph (108) to my mind clearly contemplate that a split will occur. Secondly, it is clear enough in paragraph 83 that so far as the Division 7(A) liability is concerned - that the amount that was accepted and the amount to be included in the pool (as a matrimonial liability) is the $236,810.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Howard FM

Date: 30 May 2011