Friscioni v Friscioni

Case [2010] FamCA 108

FAMILY COURT OF AUSTRALIA

HILARE & HILARE [2010] FamCA 108

FAMILY LAW  -  PROPERTY  -  unpaid taxation  small pool  -  liabilities  -  husband earning high income  -  whether order sought was for more than 100% of the pool

FAMILY LAW  -  SPOUSAL MAINTENANCE  -  wife in committed relationship with man with whom not cohabiting  -  quantum of maintenance in issue  -  period in which it should be paid
Family Law Act 1975 (Cth) ss 79, 79(4)(d) to (g), 75(2)(b),(h),(k), (na)
Taxation Administration Act 1953 ss 8AAZA, 8AAZALE, AAAZC, AAZLA
Biltoft and Biltoft (1995) FLC 92-614
Milankov  and Milankov (2002) FLC 93-095
Gollings and Scott (2007) FLC 93-319
Bevan and Bevan (1995) FLC 92-600
Mitchell and Mitchell (1995) FLC 92-601
HUSBAND: Mr Hilare
WIFE: Ms Hilare
FILE NUMBER: MLC 9487 of 2008
DATE DELIVERED: 18 February, 2010
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: BROWN J.
HEARING DATE: 15 December, 2009

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr. M. Bartfeld, Q.C.
SOLICITOR FOR THE HUSBAND: Meerkin & Apel
COUNSEL FOR THE WIFE: Mr. D. Sweeney
SOLICITOR FOR THE WIFE: Lander & Rogers

Orders

  1. That paragraph (5) of the orders made herein on 25 November, 2008 be discharged. 

  2. That the husband pay maintenance for the wife of $1,500 per week, commencing on the seventh day after the last payment of $1,650 pursuant to paragraph (5) of the orders of 25 November, 2008, and weekly thereafter until 31 December, 2011. 

  3. That the parties do all things reasonably necessary, personally and as office holders of B Pty. Ltd. to realize the assets of the Hilare Family Trust as soon as practicable and, after payment of all costs and fees reasonably incurred in such realization, disburse the balance:

    (a)to pay to the Australian Taxation Office each of the husband and wife’s personal liability for income tax due in respect of the year ending 30 June, 2008, together with any interest charged in respect of such tax to the date of payment;  and

    (b)to pay the balance to the wife (“the payment”).

  4. That contemporaneously with the payment the wife resign any office she holds, and transfer to the husband or his nominee her shareholding (if any), in B Pty. Ltd. and Z Pty. Ltd. 

  5. That there be a split in the Hilare Superannuation Fund of an amount equal to eighty-five percent (85%) of the total interest of the fund as at this date and within thirty days hereof the husband and wife do all necessary acts and things and sign all necessary documents to facilitate a transfer of such eighty-five percent interest in the Hilare Superannuation Fund to an approved superannuation fund nominated by the wife. 

  6. That upon transfer of the superannuation interest to the wife, the wife :

    (a)resign any office she holds with the Hilare Superannuation Fund;  and

    (b)resign any office she holds, and transfer to the husband or his nominee her shareholding (if any), in Hilare Super Pty. Ltd.

  7. That the husband be solely responsible for and indemnify the wife and forever hereafter…

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Friscioni v Friscioni [2010] FamCA 108
Case
[2010] FamCA 108
Decision Date

CaseChat Overview and Summary

In *Friscioni v Friscioni*, Brown J was required to determine property settlement and spousal maintenance issues between the parties. The dispute involved a relatively small pool of assets, including unpaid taxation liabilities, and the husband's high income. The wife sought spousal maintenance, and the court considered the quantum and duration of any such payments, particularly in light of the wife's committed relationship with a man with whom she was not cohabiting.

The court's reasoning addressed the division of the available assets and the appropriate level of spousal maintenance. The orders reflect a complex division of the parties' interests in various trusts and companies, including the Hilare Family Trust, Hilare Superannuation Fund, and B Pty. Ltd. The court also made specific provisions for the payment of outstanding taxation liabilities, including personal income tax for the year ending 30 June 2008, and allocated responsibility for future taxation liabilities of certain trusts.

The final orders discharged previous maintenance provisions and ordered the husband to pay the wife $1,500 per week in spousal maintenance until 31 December 2011. The Hilare Family Trust assets were to be realised, with proceeds first used to pay the parties' joint income tax liability for the 2008 financial year, and the balance paid to the wife. The wife was to resign from offices and transfer her shareholdings in B Pty. Ltd. and Z Pty. Ltd. upon receipt of this payment. Furthermore, 85% of the Hilare Superannuation Fund was to be transferred to the wife, with the husband retaining the remaining 15%. The husband was to be solely responsible for various taxation liabilities and a specific loan, and otherwise retain the remaining assets for his sole benefit.

Orders

Orders of the court

1.

That paragraph (5) of the orders made herein on 25 November, 2008 be discharged.

2.

That the husband pay maintenance for the wife of $1,500 per week, commencing on the seventh day after the last payment of $1,650 pursuant to paragraph (5) of the orders of 25 November, 2008, and weekly thereafter until 31 December, 2011.

3.

That the parties do all things reasonably necessary, personally and as office holders of B Pty. Ltd. to realize the assets of the Hilare Family Trust as soon as practicable and, after payment of all costs and fees reasonably incurred in such realization, disburse the balance:

(a) to pay to the Australian Taxation Office each of the husband and wife’s personal liability for income tax due in respect of the year ending 30 June, 2008, together with any interest charged in respect of such tax to the date of payment; and

(b) to pay the balance to the wife (“the payment”).

4.

That contemporaneously with the payment the wife resign any office she holds, and transfer to the husband or his nominee her shareholding (if any), in B Pty. Ltd. and Z Pty. Ltd.

5.

That there be a split in the Hilare Superannuation Fund of an amount equal to eighty-five percent (85%) of the total interest of the fund as at this date and within thirty days hereof the husband and wife do all necessary acts and things and sign all necessary documents to facilitate a transfer of such eighty-five percent interest in the Hilare Superannuation Fund to an approved superannuation fund nominated by the wife.

6.

That upon transfer of the superannuation interest to the wife, the wife :

(a) resign any office she holds with the Hilare Superannuation Fund; and

(b) resign any office she holds, and transfer to the husband or his nominee her shareholding (if any), in Hilare Super Pty. Ltd.

7.

That the husband be solely responsible for and indemnify the wife and forever hereafter keep her indemnified in respect of:

(a) any taxation liability of the Hilare Family Trust which relates to income accrued after 1 July, 2008;

(b) any taxation liability of the wife which relates to any past, present or future distribution to her by the Hilare Family Trust;

(c) the ANZ capital loan referable to the husband’s partnership interest in X Practice; and

(d) any past, present or future taxation liability of the Hilare Family Trust No.2.

8.

That subject to these orders the husband otherwise retain for his sole use and benefit :

(a) the Hilare Family Trust;

(b) the Hilare Family Trust No.2;

(c) the husband’s remaining fifteen percent interest in the Hilare Superannuation Fund;

(d) Hilare Super Pty. Ltd.;

(e) any funds standing in bank accounts in the husband’s name;

(f) any interest in B Pty. Ltd. and Z Pty. Ltd.;

(g) his interest in X Practice and the X Services Trust

(h) the Audi vehicle in his possession.

9.

That unless otherwise specified in these orders each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof and insurance policies are deemed to be in the possession of the beneficiary thereof.

10.

That all extant applications be otherwise dismissed.

11.

That these proceedings be removed from the List of matters awaiting finalisation.

12.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.

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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