EATON & EATON - [2012] FMCAfam 9

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EATON & EATON

[2012] FMCAfam 9

CHILD SUPPORT – Application for departure order – no special circumstances identified – departure not just and equitable.

FAMILY LAW – Property adjustment – valuation of minority shareholding – assessment of contributions.

Family Law Act 1975, ss.75(2), 79(4)
Child Support (Assessment) Act 1989, ss.116(1)(b)(i) and (ii), 117(2)(c)

In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
Norbis and Norbis (1986) 161 CLR 513
Gyselman (1992) FLC 92-279
In the Marriage of Ferraro (1993) FLC 92-335
Kessey v Kessey (1994) 18 Fam LR 149
In the Marriage of Clauson (1995) FLC 92-595
Georgeson and Georgeson (1995) FLC 92-618
Harrison v Harrison (1996) FLC ¶92-682
Ramsay and Ramsay (1997) FLC ¶92-742
Russell v Russell (1999) FLC 92-877
AJW v JMW (2002) FLC ¶93-103
AB and ZB [2002] Fam CA 1178
In the Marriage of Hickey (2003) 30 Fam LR 355
C v C (2005) FLC 13-220
Yates & Allen [2008] FamCAFC 190
Rickwood & Rickwood [2009] FamCA 264
Sanford v Wever [2010] FamCA 87
IABH & HRBH [2010] FamCA 110

Applicant:

MS EATON

Respondent:

MR EATON

File Number:

BRC 5228 of 2009

Judgment of:

Jarrett FM

Hearing dates:

28, 29 October, 2010; 3, 4 February 2011

Date of Last Submission:

20 May 2011

Delivered at:

Brisbane

Delivered on:

17 January 2012

REPRESENTATION

Counsel for the Applicant:

Ms Anderson

Solicitors for the Applicant:

Hopgood Ganim Lawyers

Counsel for the Respondent:

Mr Forest (on 28, 29 October, 2010)

Mr Laurie (on 3, 4 February, 2011)

Solicitors for the Respondent:

Walker Lawyers

ORDERS

The wife retain as her absolute property and the husband transfer to the wife all right, title and interest in and to the following property and financial resources:
(a)Property M in the State of Queensland registered in the name of [Ms Eaton], more particularly described as Lot [omitted] (the Property M);
(b)Her superannuation interest in [A];
(c)Her superannuation interest with [Q];
(d)The furniture and chattels in her possession save for the items referred to in 5(n)
The wife do all acts and things to transfer to the husband, the property situate at Property O in the State of Queensland registered in the name of [Ms Eaton], more particularly described as Lot [omitted] (the Property O).
Contemporaneously with the transfer of the Property O property, the husband and wife shall do all acts and things and sign all documents necessary for the husband to discharge, or refinance into his sole name, the mortgage to the Bank of Queensland registered over the Property O and any liability alleged to be owing to the Mr G Eaton Trust, so as to release the wife from all liability in relation thereto, and pending that release, the husband indemnify and keep indemnified the wife in respect of same.
Contemporaneously with the transfer of the Property O, the wife relinquish all right, claim and interest to all and any rental income received or received after that date from any source in relation…

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 EATON & EATON

Details

AGLC: EATON & EATON [2012] FMCAfam 9
Case: [2012] FMCAfam 9
Decision Date: 17 January 2012

CaseChat Overview and Summary

The case involves an application for child support and property settlement between Mr and Mrs Eaton, heard in the Family Court of Australia. The primary issues were whether a departure from the standard child support calculation was warranted and the valuation of a minority shareholding for property adjustment purposes. The court also needed to determine the contributions made by each party towards the acquisition of the assets.

The court assessed the application for a departure from the child support guidelines, considering whether there were any special circumstances that would justify a departure. The court found that no such special circumstances existed, and therefore, the child support should be calculated according to the standard guidelines. Regarding the property settlement, the court valued the minority shareholding by considering the contributions made by each party towards its acquisition. The court concluded that the husband's contributions were more significant and that the valuation should reflect this. The court ordered that the wife retain certain properties and financial resources, while the husband would retain others. Additionally, the husband was ordered to pay the wife a lump sum of money. These orders were designed to achieve a just and equitable outcome for both parties.

Orders

Orders of the court

The wife retain as her absolute property and the husband transfer to the wife all right, title and interest in and to the following property and financial resources:

(a) Property M in the State of Queensland registered in the name of [Ms Eaton], more particularly described as Lot [omitted] (the Property M);

(b) Her superannuation interest in [A];

(d) The furniture and chattels in her possession save for the items referred to in 5(n)

The wife do all acts and things to transfer to the husband, the property situate at Property O in the State of Queensland registered in the name of [Ms Eaton], more particularly described as Lot [omitted] (the Property O).

Contemporaneously with the transfer of the Property O property, the husband and wife shall do all acts and things and sign all documents necessary for the husband to discharge, or refinance into his sole name, the mortgage to the Bank of Queensland registered over the Property O and any liability alleged to be owing to the Mr G Eaton Trust, so as to release the wife from all liability in relation thereto, and pending that release, the husband indemnify and keep indemnified the wife in respect of same.

Contemporaneously with the transfer of the Property O, the wife relinquish all right, claim and interest to all and any rental income received or received after that date from any source in relation to the Property O property, excluding arrears of rental income accrued to that date but receive subsequently, which shall remain the property of the wife.

The husband have sole right, title and interest in and to the following property and financial resources:

(a) His shareholding in [P2] Company Pty Ltd;

(b) His shareholding in [P1] Company Pty Ltd;

(d) His shareholding in [H] Pty Ltd;

(e) His shareholdings in Westpac Banking Corporation;

(f) any other shares held by him;

(g) 1993 Mazda Utility motor vehicle registration number [omitted];

(h) 2006 Honda motor vehicle registration number [omitted];

(i) AXA policy;

(j) His Superannuation interest with [A] Superannuation;

(k) The furniture in his possession and:

I. Cedar dining table and five chairs;

II. 4 dining chairs;

III. Walnut clock;

IV. Silky oak glory box and seat lid;

V. Filing cabinet and papers;

VI. “d” cupboard;

VII. Tools;

VIII. Some clothes belonging to the husband;

IX. Timber shelving;

X. BBQ; and

XI. A piano stool

With such items to be made available by the wife for the husband’s collection contemporaneously with and conditional upon the cash payment referred to in order 7 hereof.

The husband and wife sign all documents and do all acts necessary to do the following with respect to [Eaton] Nominees Pty Ltd:

(a) That the wife transfer, assign and novate to the husband or to his nominee any loan account in the name of the wife (whether solely or jointly with others) standing with a credit balance in the books of account of [Eaton] Nominees Pty Ltd and to give effect to same the wife deliver or cause to be delivered to the solicitors for the husband Contemporaneously with the transfer of the Property O an executed Deed of Assignment relating to the transfer and assignment of the said loan accounts;

(b) That the husband forthwith be responsible for and meet payment when due of any loan accounts in the name of the wife (whether solely or jointly with others) standing with a debit balance in the books of account of [Eaton] Nominees Pty Ltd and the husband indemnify and keep indemnified the wife from all liability howsoever arising therein;

(c) That the husband forthwith be responsible for and meet payment when due, of any loan in the name of the husband (whether solely or jointly with others) standing with a debit balance in the books of account of [Eaton] Nominees Pty Ltd and the husband indemnify and keep indemnified the wife from all liability howsoever arising therein;

(d) The wife relinquish all claim to the assets and income of [Eaton] Nominees Pty Ltd.

The husband pay to the wife the sum of $368,700.

The payment refereed in order 7 be paid within thirty (30) days of the date of these orders and contemporaneously with the transfer of the Property O in paragraph 2 and failing payment, interest accrue at the rate prescribed in the

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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