Farnell and Farnell - [2020] FamCA 297

FAMILY COURT OF AUSTRALIA

FARNELL & FARNELL

[2020] FamCA 297

FAMILY LAW – PROPERTY – Where it is just and equitable to make a property division order – Addbacks – Where the husband defended criminal proceedings – Whether legal fees of criminal proceedings should be added back – Where the legal expenses were reasonably incurred – Where the contributions are assessed as 52 per cent to the wife and 48 per cent to the husband – Where there is no further adjustment for 75(2) factors – Where the division of property requires a superannuation splitting order.

Family Law Act 1975 (Cth) ss 79(2), 90XT

NHC v RCH [2004] FamCA 633
Trevi & Trevi [2018] FamCAFC 173

APPLICANT:

Ms Farnell

RESPONDENT:

Mr Farnell

FILE NUMBER:

SYC

659

2018

DATE DELIVERED:

30 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

17, 18, 19, 20 & 21 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Johnston

SOLICITOR FOR THE APPLICANT:

Beazley Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Lawson

SOLICITOR FOR THE RESPONDENT:

Nicole Evans Lawyers

Orders

IT IS ORDERED

That within three calendar months of the date of these orders the husband pay to the wife the sum of $84,976.
That from the sum in Order 1, the wife pay 52 per cent of the amount, if any, required, after the application of the sale money, to discharge the mortgage over the property at T Street, F Town and pay the commission and costs of sale.
That the husband pay the remaining 48 per cent of amount, if any, required, after the application of the sale money, to discharge the mortgage over the property at T Street, F Town and pay the commission and costs of sale.
That upon receipt of the sum in Order 1, the wife do all things necessary to transfer to the husband her interest in the jointly owned shares in G Company; to transfer or otherwise assign to the husband any interest she may have as a beneficiary of the Farnell Family Trust; to resign from any directorship of S Pty Ltd and to transfer to the husband any shares held by her in S Pty Ltd.
That the husband indemnify the wife in respect of any taxation liability which might arise from her being a director or shareholder of S Pty Ltd or from being a beneficiary of the Farnell Family Trust in the financial years ended 30 June 2018, 2019 and 2020.
That the husband and the wife forthwith do all acts and things required to cause the accounts and member balances of the Farnell Superannuation Fund to be prepared and lodged and to pay equally any costs, taxes, fines or penalties incurred.
That pursuant to s 90XT(4) of the Family Law Act 1975 (Cth), the Court allocates a base amount to the wife out of the husband’s interest in the Farnell Superannuation Fund of $204,280.
That in accordance with s 90XT(1)(a) of the Family Law Act 1975

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 Farnell and Farnell

Details

AGLC: Farnell and Farnell [2020] FamCA 297
Case: [2020] FamCA 297
Decision Date: 30 April 2020

CaseChat Overview and Summary

In the matter of *Farnell and Farnell*, Rees J considered the financial and property settlement between the husband and wife. The dispute concerned the division of various assets, including a property, company shares, interests in a trust, and superannuation entitlements.

The court was required to determine how to equitably divide the parties' property, including the distribution of funds from the sale of a jointly owned property, the transfer of interests in a company and a trust, and the allocation of a significant superannuation interest. The court also had to address the potential tax liabilities arising from certain asset transfers and the preparation and lodgement of superannuation fund accounts.

Rees J applied the principles of property settlement under the *Family Law Act 1975* (Cth). The court ordered the husband to pay a sum of money to the wife, with a portion of this payment to be used to discharge the mortgage and sale costs associated with a jointly owned property, with the parties contributing to these costs in specified percentages. The wife was also ordered to transfer her interests in jointly owned shares, a trust, and a directorship in a company to the husband, who in turn indemnified her against any associated tax liabilities. Crucially, the court made orders pursuant to s 90XT of the *Family Law Act 1975* (Cth) to allocate a base amount from the husband's superannuation fund to the wife, creating a specific entitlement for her and a corresponding reduction in the husband's entitlement, with directions for the preparation and payment of this amount.

Orders

Orders of the court

IT IS ORDERED

That within three calendar months of the date of these orders the husband pay to the wife the sum of $84,976.

That from the sum in Order 1, the wife pay 52 per cent of the amount, if any, required, after the application of the sale money, to discharge the mortgage over the property at T Street, F Town and pay the commission and costs of sale.

That the husband pay the remaining 48 per cent of amount, if any, required, after the application of the sale money, to discharge the mortgage over the property at T Street, F Town and pay the commission and costs of sale.

That upon receipt of the sum in Order 1, the wife do all things necessary to transfer to the husband her interest in the jointly owned shares in G Company; to transfer or otherwise assign to the husband any interest she may have as a beneficiary of the Farnell Family Trust; to resign from any directorship of S Pty Ltd and to transfer to the husband any shares held by her in S Pty Ltd.

That the husband indemnify the wife in respect of any taxation liability which might arise from her being a director or shareholder of S Pty Ltd or from being a beneficiary of the Farnell Family Trust in the financial years ended 30 June 2018, 2019 and 2020.

That the husband and the wife forthwith do all acts and things required to cause the accounts and member balances of the Farnell Superannuation Fund to be prepared and lodged and to pay equally any costs, taxes, fines or penalties incurred.

That pursuant to s 90XT(4) of the Family Law Act 1975 (Cth), the Court allocates a base amount to the wife out of the husband’s interest in the Farnell Superannuation Fund of $204,280.

That in accordance with s 90XT(1)(a) of the Family Law Act 1975 (Cth), the Court:

(a) Creates an entitlement on the part of the wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

(b) Makes a corresponding reduction in the entitlement of the husband, or such other person to whom a splittable payment may be made, would have in the fund but for these orders.

That the husband and wife, in their capacities as directors of the Trustee Company, shall do all such acts and things and have signed all such documents as may be necessary to cause the accountants for the Farnell Superannuation Fund to ensure payment to the wife of the base amount in accordance with Order 8(a) and (b):

10.

That the operative time for Order 7 of these Orders is twenty eight (28) business days after the making of these Orders

11.

That the wife, upon receipt of the funds referred to in order 7, do all things required to resign as a director of the Farnell Superannuation Fund and to transfer to the husband, or his nominee any share held by her in any trustee company.

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

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.