Fenwick & Temple

[2021] FamCA 88

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Temple & Fenwick [2021] FedCFamC1A 2

Appeal from:

Fenwick & Temple [2021] FamCA 88

Appeal number:

NOA 15 of 2021

File number:

BRC 13499 of 2017

Judgment of:

AINSLIE-WALLACE, ALDRIDGE & BAUMANN JJ

Date of judgment:

8 September 2021

Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Appeal against an Order prescribing sixty (60) days for payment of the settlement sum – Appeal allowed in part – Order made in accordance with Minute of Order received from the parties.

Legislation:

Family Law Act 1975 (Cth) s 117B

Cases cited:

Bhatnagar & Riju [2018] FamCAFC 144

Heidari & Ebadi [2020] FamCAFC 316

Number of paragraphs:

9

Date of hearing:

24 August 2021

Place:

Brisbane (via video link)

Counsel for the Appellant:

Mr Looney QC with Mr Alexander

Solicitor for the Appellant:

Evans Brandon Family Lawyers

Counsel for the Respondent:

Mr Kearney SC with Mr Drysdale

Solicitor for the Respondent:

HopgoodGanim Lawyers

ORDERS

NOA 15 of 2021
BRC 13499 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR TEMPLE

Appellant

AND:

MS FENWICK

Respondent

ORDER MADE BY:	AINSLIE-WALLACE, ALDRIDGE & BAUMANN JJ
DATE OF ORDER:	24 AUGUST 2021

THE COURT ORDERS THAT:

(1)The appeal against the decision of a judge of the Family Court of Australia made on 26 February 2021 be allowed in part.

THE COURT FURTHER ORDERS BY CONSENT THAT:

(2)Order 23 made on 26 February 2021 is varied in accordance with the minute of orders prepared and signed by the parties on 24 August 2021. Order 23 be varied as follows:

23The respondent cause the payment of:

(a)$7,830,521 to the applicant to be made as follows:

(i)the sum of $2,000,000 on or before 27 April 2021, noting that such payment has been made;

(ii)the sum of $1,750,000 on or before 25 October 2021;

(iii)the balance (“the relevant balance”) on or before 24 August 2022;

(b)interest on the relevant balance between 25 October 2021 and the date of payment of the relevant balance at the rate referred to in s 117B of the Family Law Act1975 (Cth) to be paid on the date of payment of the relevant balance; and

(c) in the event of non-compliance with Orders 23(a)(ii) or 23(a)(iii) then interest is payable at the rate referred to in s 117B of the Family Law Act 1975 (Cth):

(i) on the sum payable pursuant to Order 23(a)(ii) or such portion of it as is unpaid at 26 October 2021, from 27 April 2021 to the date of payment, and

(ii) on the sum payable pursuant to Order 23(a)(iii) or such portion of it as is unpaid at 25 August 2022, from 27 April 2021 to the date of payment.

(3) Order 24 made on 26 February 2021 is varied in accordance with the minute of orders prepared and signed by the parties on 24 August 2021. Order 24 be varied as follows:

24Paragraphs 3 and 4(b) of the Interim Order dated 14 May 2018 requiring the respondent to pay spousal maintenance be discharged as follows:

(a)paragraph 3(a), (b) and (c) and 4(b) be discharged on and from 27 April 2021; and

(b)paragraph 3(d) be discharged on and from payment made pursuant to Order 23(a)(ii).

(4)The Orders made on 26 February 2021 be varied in accordance with the minute of orders prepared and signed by the parties on 24 August 2021 to include an order as follows:

24A     That pending compliance with Orders 23 and 24 herein:

(a)the respondent shall be and hereby is restrained from causing or permitting any dealing in respect of his interest in and to the real property situate at [B Street, Suburb C] (“the Suburb C property”) unless it is for the purpose for and only to the extent necessary of raising the payment pursuant to Order 23(a)(iii); and

(b)the respondent shall permit the applicant to maintain a caveat on the title to the [Suburb C] property and shall be and hereby is restrained from causing or permitting any act or thing that would remove such caveat AND the respondent shall forthwith upon receipt sign all documents as are submitted to him so as to permit the applicant to register and maintain such caveat PROVIDED THAT the applicant shall remove the caveat either for the purpose of the respondent raising to the extent necessary the payment pursuant to Order 23(a)(iii) or upon total payment being made pursuant to Order 23.

(5)There be no order as to costs.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

AINSLIE-WALLACE, ALDRIDGE & BAUMANN JJ:

INTRODUCTION

1. On 7 July 2021, Mr Temple (“the husband”) filed an Amended Notice of Appeal appealing final property settlement orders made by a judge of the Family Court of Australia on
   26 February 2021 in proceedings against Ms Fenwick (“the wife”).

2. The appeal came on for hearing on 24 August 2021. The parties had reached an agreement in relation to the appeal and sought orders that the appeal be allowed in part, and proposed a variation to Orders 23 and 24 made on 26 February 2021.

3. Senior counsel who appeared before us, accepted that clear authority requires that an appellate court must be satisfied of error and give reasons accordingly when parties consent to an appeal being allowed (Bhatnagar & Riju [2018] FamCAFC 144; Heidari & Ebadi [2020] FamCAFC 316).

4. We were satisfied that an error had been established and made the orders sought by the parties. These are our reasons for doing so.

   THE APPEAL

5. The order subject of the asserted error provided:

   (23)The [husband] cause the payment of $7,830,521 to the [wife] on or before date of settlement.

6. The date of settlement was defined in the orders as being “60 days after the date of this Order or such other date as is agreed between the parties” (Order 1(e) made 26 February 2021).

7. Ground 5 asserted that the trial judge had not provided adequate reasons as to how her Honour found that the settlement sum could be paid within 60 days, which is implicit in the order. Ground 4 asserted that the order should not have been made because the issue of payment of a sum of that magnitude had not been raised with the husband in his evidence and that in order to pay such a sum, other than from income over a longer period, would require the sale of assets, which incur capital gains tax and affect the amount of property to be divided.

8. We are satisfied that the asserted errors have been established for the following reasons:

   (a)Her Honour set out the adjusted balance sheet (at [184]), and the effect of Order 5 was that the personal property retained by the husband amounted to $3,232,630 (excluding superannuation);

   (b)The husband was to retain the corporate entities (found to have a value of $27,559,432 (at [184])). However at the trial, Queen’s Counsel for the husband contended that the husband, based on income, would need “a significant time” to pay (Transcript 4 December 2020, p.450 line 36);

   (c)When engaging in final submissions with senior counsel for the wife, her Honour identified the husband using the whole of the available personal property “would still leave him short” of paying the wife a sum of $7.8 million, and that payment within 60 days “doesn’t really look realistic, does it?” (Transcript 4 December 2020, p.522 line 41–46); and

   (d)Although the husband did not adduce evidence to substantiate his submission that he required a substantial time to pay, the finding that the husband could, through dividend income and liquidation of personal assets, meet a payment of $7,830,521 within 60 days (at [259]), was not explained (Ground 5). Further, the sum could only be paid within 60 days if the husband sold some of his income producing assets, which would in turn be subject to capital gains tax and affect the size of the pool. As there was no evidence to that effect Ground 4 was also made out.

9. The order for payment within 60 days was accordingly set aside.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge & Baumann.

Associate:   

Dated:       8 September 2021