FAMILY COURT OF AUSTRALIA
Falkner & Candle (No. 2) [2021] FamCA 247
File number(s): PAC 623 of 2018 Judgment of: FOSTER J Date of judgment: 29 April 2021 Catchwords: FAMILY LAW – PROPERTY – Property Adjustment – where discussion of applicable principles – where just and equitable to make property orders – where assessment of contributions favouring the wife – where adjustment in favour of husband by reason of s 75(2) considerations –where orders made accordingly. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 79(2), 79(4) Cases cited:
Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060
Falkner & Candle and Anor [2019] FamCA 471
Falkner & Candle [2020] FamCA 246
Horrigan & Horrigan [2020] FamCAFC 25
Kessey & Kessey (1994) FLC 92-495
Stanford & Stanford [2012] HCA 52
Number of paragraphs: 107 Date of hearing: 16 and 17 December 2020 and 6 April 2021 Place: Parramatta Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Coleman Greig Lawyers Case Guardian for the Respondent: Mr Bousattout ORDERS
PAC 623 of 2018 BETWEEN: MS FALKNER
Applicant
AND: MR CANDLE
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 APRIL 2021
THE COURT ORDERS THAT:
1.That the wife pay to the husband or as he may direct in writing the sum of $604,168 less any amount outstanding from the husband to the wife in respect of any costs order together with interest accrued thereon within three months from this date.
2.That within seven days from this date the husband do all acts and things necessary to transfer to the wife his shareholding in C Pty Ltd ACN … and that subsequent to such transfer the wife shall indemnify and keep the husband forever indemnified in respect of any loans owing by the husband to C Pty Ltd and from any liability howsoever arising including any liability to the Australian Taxation Office arising from the trading affairs of C Pty Ltd.
3.That within 14 days from this date the wife cause to be transferred to the husband the shareholding of C Pty Ltd in K Pty Ltd and that subsequent to such transfer the husband indemnify and keep C Pty Ltd forever indemnified in respect of any liability howsoever arising including any liability to the Australian Taxation Office arising from the trading affairs of K Pty Ltd.
4.That the husband and wife shall do all acts and things and sign all documents necessary as and when required in order to give effect to the validity and operation of these orders.
5.If either the husband or wife refuses or neglects to sign or execute and return a document implementing the above orders within seven days of a written request to do so, then a registrar of the Parramatta Registry of the Family Court of Australia is hereby appointed under s 106A of the Family Law Act 1975 to sign and/or execute such document on behalf of the defaulting…
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- Falkner & Candle (No. 2) [2021] FamCA 247
- Case
- [2021] FamCA 247
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CaseChat Overview and Summary
The court was required to determine whether it was just and equitable to make property orders, to assess the respective contributions of the parties to their property pool, and to consider whether any adjustment was warranted under section 75(2) of the *Family Law Act 1975* (Cth) in favour of the husband.
Foster J found that an adjustment in favour of the wife was appropriate based on her contributions. However, the court also determined that an adjustment in favour of the husband was necessary by reason of considerations under section 75(2) of the *Family Law Act 1975* (Cth). The court ultimately made orders reflecting these determinations.
The orders directed the wife to pay a sum of $604,168 to the husband within three months, subject to any outstanding costs orders. The orders also stipulated the transfer of shareholdings in C Pty Ltd and K Pty Ltd between the parties, with reciprocal indemnities for loans and liabilities to the Australian Taxation Office. Provisions were included for the execution of necessary documents, with a registrar empowered to sign on behalf of a defaulting party.
Orders
Orders of the court
PAC 623 of 2018
BETWEEN:
MS FALKNER
Applicant
AND:
MR CANDLE
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 APRIL 2021
THE COURT ORDERS THAT:
1. That the wife pay to the husband or as he may direct in writing the sum of $604,168 less any amount outstanding from the husband to the wife in respect of any costs order together with interest accrued thereon within three months from this date.
2. That within seven days from this date the husband do all acts and things necessary to transfer to the wife his shareholding in C Pty Ltd ACN … and that subsequent to such transfer the wife shall indemnify and keep the husband forever indemnified in respect of any loans owing by the husband to C Pty Ltd and from any liability howsoever arising including any liability to the Australian Taxation Office arising from the trading affairs of C Pty Ltd.
3. That within 14 days from this date the wife cause to be transferred to the husband the shareholding of C Pty Ltd in K Pty Ltd and that subsequent to such transfer the husband indemnify and keep C Pty Ltd forever indemnified in respect of any liability howsoever arising including any liability to the Australian Taxation Office arising from the trading affairs of K Pty Ltd.
4. That the husband and wife shall do all acts and things and sign all documents necessary as and when required in order to give effect to the validity and operation of these orders.
5. If either the husband or wife refuses or neglects to sign or execute and return a document implementing the above orders within seven days of a written request to do so, then a registrar of the Parramatta Registry of the Family Court of Australia is hereby appointed under s 106A of the Family Law Act 1975 to sign and/or execute such document on behalf of the defaulting party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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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