ELGIN & ELGIN (FORM OF ORDERS) - [2015] FamCAFC 229

FAMILY COURT OF AUSTRALIA

ELGIN & ELGIN (FORM OF ORDERS)

[2015] FamCAFC 229

FAMILY LAW – APPEAL – PROPERTY – Where the Full Court had previously allowed the appeal in part and found that the parties should equally share certain taxation liabilities – Where written submissions on the proposed form of orders were invited – Minor amendments made to the proposed orders.

Family Law Act 1975 (Cth): s 81

APPELLANT:

Mr Elgin

RESPONDENT:

Ms Elgin

FILE NUMBER:

BRC

2909

2010

APPEAL NUMBER:

2014

DATE DELIVERED:

8 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

In chambers

JUDGMENT OF:

May, Thackray & Ryan JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 January 2014

LOWER COURT MNC:

[2014] FamCA 10

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Williams

SOLICITOR FOR THE APPELLANT:

Hartley & Healy

COUNSEL FOR THE RESPONDENT:

Mr Sweeney

SOLICITOR FOR THE RESPONDENT:

Glezer Lanteri & Associates

Orders

Order 7 of the orders made on 17 January 2014 be set aside and the following order made in lieu:
(7)That subject to Orders 12 and 13, the Husband indemnify the Wife in respect of all past, present and future liabilities arising as a result of the Orders herein (save for any liabilities associated with C Street, Apartment D and Apartment G), or from her involvement in the entities or in any trust of which he or any of the entities is trustee.
The orders made on 17 January 2014 be amended by the addition of the following orders:
(12)That in the event either the Husband or the Wife incurs or has incurred any taxation liability by reason of any of the transfers referred to in Orders 2, 3 or 4 hereof, the other party shall indemnify him or her to the extent of 50 percent of any such liability.
(13)That in the event the Husband incurs or has incurred any taxation liability by reason of receiving dividends in order to comply with his obligations pursuant to these orders, the Wife shall indemnify him to the extent of 50 percent of any such liability.
(14)In the event of dispute arising as to whether any taxation liability was reasonably incurred, the parties shall have liberty to apply to Forrest J (or another judge in the event his Honour is not reasonably available) for orders determining the extent of the wife’s obligation pursuant to Order 13.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Elgin & Elgin (Form of orders) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 6 of 2014
File Number: BRC 2909 of 2010

Mr Elgin

Appellant

And

Ms Elgin

Respondent

REASONS FOR JUDGMENT

May J

In the reasons delivered by the Full Court I reached a different conclusion in relation to the disposition of the…

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.

Keep reading for free

Create a free CaseChat account to read ELGIN & ELGIN (FORM OF ORDERS) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FamCAFC 229
Decision Date: 8 December 2015

CaseChat Overview and Summary

The matter under consideration involved a dispute between a husband and wife, identified as Elgin and Elgin, concerning the division of assets and liabilities following their divorce. The case was heard and determined in the Family Court of Australia. The court was tasked with reviewing and amending previous orders made on 17 January 2014, which pertained to the financial settlements between the parties. Key issues included the indemnification of the wife for liabilities arising from the orders and her involvement in certain entities and trusts, as well as the apportionment of taxation liabilities resulting from specific transfers and dividend payments.

The court addressed the need to modify the previous orders to ensure a fair distribution of financial responsibilities. It was determined that the husband should indemnify the wife for all past, present, and future liabilities stemming from the court's orders, with the exception of those associated with specific properties. Additionally, the court introduced provisions for the apportionment of taxation liabilities. If either party incurred a tax liability due to transfers or dividend payments, the other party would be responsible for indemnifying them to the extent of 50 percent. In the event of a dispute regarding the reasonableness of a tax liability, the parties were granted the right to seek clarification from the court.

In summary, the court set aside and replaced certain orders to provide clarity and fairness in the financial obligations of the parties post-divorce. The amended orders included specific provisions for indemnification and the division of taxation liabilities, ensuring that both parties understood their responsibilities. The final orders reflected a balanced approach to the financial settlements, with the husband required to indemnify the wife for certain liabilities and both parties sharing the burden of tax liabilities arising from specific financial transactions.

Orders

Orders of the court

Order 7 of the orders made on 17 January 2014 be set aside and the following order made in lieu:

(7) That subject to Orders 12 and 13, the Husband indemnify the Wife in respect of all past, present and future liabilities arising as a result of the Orders herein (save for any liabilities associated with C Street, Apartment D and Apartment G), or from her involvement in the entities or in any trust of which he or any of the entities is trustee.

The orders made on 17 January 2014 be amended by the addition of the following orders:

(12) That in the event either the Husband or the Wife incurs or has incurred any taxation liability by reason of any of the transfers referred to in Orders 2, 3 or 4 hereof, the other party shall indemnify him or her to the extent of 50 percent of any such liability.

(13) That in the event the Husband incurs or has incurred any taxation liability by reason of receiving dividends in order to comply with his obligations pursuant to these orders, the Wife shall indemnify him to the extent of 50 percent of any such liability.

(14) In the event of dispute arising as to whether any taxation liability was reasonably incurred, the parties shall have liberty to apply to Forrest J (or another judge in the event his Honour is not reasonably available) for orders determining the extent of the wife’s obligation pursuant to Order 13.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.