GAULTON & GAULTON - [2018] FCCA 737

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAULTON & GAULTON

[2018] FCCA 737

Catchwords:
FAMILY LAW – Parenting – whether an injunction preventing the father from consuming alcohol while the children are in his care ought to be extended.

PROPERTY – How a sole beneficiary superannuation fund established entirely with a Total and Permanent Disability payment ought to be considered – how to consider a jointly held self-managed superannuation fund.

Legislation:

Family Law Act 1975, ss.64B, 60CA, 60CC, 75, 79, 90MC, 90MT(1)(a), 106A

Family Law (Superannuation) Regulations 2001, Part IV, reg.13

Cases cited:

Stanford v Stanford (2012) FLC 93-318

Bevan & Bevan [2013] FamCAFC 116
Holland & Holland [2017] FamCAFC 166

Applicant:

MR GAULTON

Respondent:

MS GAULTON

File Number:

DGC 2926 of 2015

Judgment of:

Judge Small

Hearing dates:

30 & 31 October 2017

Date of Last Submission:

31 October 2017

Delivered at:

Dandenong

Delivered on:

11 April 2018

REPRESENTATION

Counsel for the Applicant:

Mr Puckey

Solicitors for the Applicant:

Barry Nilsson Lawyers

Counsel for the Respondent:

Mr Weil

Solicitors for the Respondent:

MDL Law

ORDERS

Parenting

The husband be and is hereby restrained by injunction from consuming alcohol during any time that the children [X] born (omitted) 2002 (“[X]”) and [Y] born (omitted) 2005 (“[Y]”) are in his care, and for six hours prior to the commencement of such time.

Property

Within 14 days of these orders (“the due date”):
(a)The monies held on trust for the parties in the trust account of Barry Nilsson Lawyers shall be divided such that the wife shall receive the sum of $505,203 and the husband the sum of $126,326. If there are any trust monies remaining after that division, they shall be divided in the proportions of 35% to the husband and 65% to the wife;
(b)The husband, in his capacity as Director of (business omitted) Pty Ltd, trustee of the Gaulton Superannuation Fund, shall do all such acts and things and sign all such documents as may be necessary to give effect to Orders 5 to 9 hereof; and
(c)The parties shall do all acts and things and sign all documents as might be necessary to remove the wife as a director and/or shareholder of the following entities:
(i)(business omitted) Pty Ltd as trustee for the Gaulton Family Trust;
(ii)(business omitted) Pty Ltd as trustee for the Gaulton Trust;
(iii)(business omitted) Pty Ltd as trustee for the Gaulton Investment Trust;
(iv)(business omitted) Pty Ltd as trustee for the Gaulton Trust; and
(v)(business omitted) Pty Ltd; and
(d)The parties shall do all acts and things and sign all documents as might be necessary to transfer to the husband, at the expense, if any, of the husband, the balance of the (omitted) Bank Account No. (omitted).
Within 14 days of the date of these orders, the parties shall do all such acts and things and sign all such documents as might be necessary to:
(a)transfer the 235 (omitted) shares and the 425 (omitted) shares shares (“the shares”) to the wife to be held…

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 GAULTON & GAULTON

Details

AGLC: GAULTON & GAULTON [2018] FCCA 737
Case: [2018] FCCA 737
Decision Date: 11 April 2018

CaseChat Overview and Summary

In the matter of GAULTON & GAULTON, Judge Small of the Federal Circuit Court of Australia was required to determine parenting and property settlement issues between the parties. The parenting dispute concerned an application to extend an injunction preventing the father from consuming alcohol while the children were in his care. The property dispute involved the division of various assets, including monies held in a trust account, interests in several companies and trusts, and superannuation interests, including a sole beneficiary superannuation fund established with a Total and Permanent Disability payment and a jointly held self-managed superannuation fund.

The court was required to consider whether the existing injunction regarding the father's alcohol consumption should be extended and, in relation to property, how to treat the sole beneficiary superannuation fund and the jointly held self-managed superannuation fund. The court also had to determine the division of other assets, including funds held in a lawyer's trust account, shares, bank accounts, and various business entities.

The court ordered that the father be restrained by injunction from consuming alcohol during any time the children are in his care, and for six hours prior to the commencement of such time. In relation to property, the court ordered a specific division of monies held in a lawyer's trust account, the removal of the wife as director and/or shareholder of several entities, and the transfer of certain bank accounts and shares to the wife to be held on trust for the children. Crucially, the court made orders pursuant to section 90MT(1)(a) of the *Family Law Act 1975* (Cth) for the splitting of the husband's superannuation interest in the Gaulton Superannuation Fund, with the wife entitled to a specified base amount, and also restrained the husband from making binding death benefit nominations that would diminish the value of this split to the wife. The court also provided for the rollover of the wife's superannuation entitlement and appointed a Registrar to sign documents if a party failed to comply with the orders.

Orders

Orders of the court

Parenting

The husband be and is hereby restrained by injunction from consuming alcohol during any time that the children [X] born (omitted) 2002 (“[X]”) and [Y] born (omitted) 2005 (“[Y]”) are in his care, and for six hours prior to the commencement of such time.

Property

Within 14 days of these orders (“the due date”):

(a) The monies held on trust for the parties in the trust account of Barry Nilsson Lawyers shall be divided such that the wife shall receive the sum of $505,203 and the husband the sum of $126,326. If there are any trust monies remaining after that division, they shall be divided in the proportions of 35% to the husband and 65% to the wife;

(b) The husband, in his capacity as Director of (business omitted) Pty Ltd, trustee of the Gaulton Superannuation Fund, shall do all such acts and things and sign all such documents as may be necessary to give effect to Orders 5 to 9 hereof; and

(c) The parties shall do all acts and things and sign all documents as might be necessary to remove the wife as a director and/or shareholder of the following entities:

(i) (business omitted) Pty Ltd as trustee for the Gaulton Family Trust;

(ii) (business omitted) Pty Ltd as trustee for the Gaulton Trust;

(iii) (business omitted) Pty Ltd as trustee for the Gaulton Investment Trust;

(iv) (business omitted) Pty Ltd as trustee for the Gaulton Trust; and

(v) (business omitted) Pty Ltd; and

(d) The parties shall do all acts and things and sign all documents as might be necessary to transfer to the husband, at the expense, if any, of the husband, the balance of the (omitted) Bank Account No. (omitted).

Within 14 days of the date of these orders, the parties shall do all such acts and things and sign all such documents as might be necessary to:

(a) transfer the 235 (omitted) shares and the 425 (omitted) shares shares (“the shares”) to the wife to be held on trust for the children [X] and [Y];

(b) transfer (omitted) Bank Account No. (omitted) to the wife to be held on trust for the child [Y]; and

Within seven days of the wife forming an intention to deal with the shares or the bank accounts specified in paragraph 3 hereof in any way, she shall contact the husband and inform him of how she intends to deal with the shares and/or the bank accounts and how she intends to apply any monies deriving from such dealings.

In accordance with s.90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of the husband Mr Gaulton in the Gaulton Superannuation Fund (“the fund”), the wife Ms Gaulton will be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using the base amount of $259,824 and there will be a corresponding reduction in the entitlement of the husband.

The trustee of the fund must comply with the obligations imposed upon trustees of eligible superannuation plans under the Act and the Family Law (Superannuation) Regulations 2001.

The husband is hereby restrained by himself, his servants and agents from making any binding death benefit nomination to the trustee of the fund in favour of any person who is an eligible beneficiary within the meaning of reg.13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the wife of the splitting Order made in paragraph 5 hereof.

Paragraphs 5 and 6 of these Orders bind the trustee of the fund when these paragraphs take effect from the operative time, being the fourth business day after the date of these Orders.

The wife and the husband shall do all such things and execute all such documents as are necessary to facilitate the rollover by the trustee of the fund of the wife’s entitlements pursuant to paragraph 5 of these Orders to another regulated superannuation fund, an approved deposit fund, or a retirement savings account or other such applicable fund or account at the sole nomination of the wife as soon as that is practicably possible after the operative time.

10.

Should either party refuse or fail to sign any document required by these orders, then pursuant to s.106A of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit Court of Australia at Dandenong shall be appointed to sign any and all such documents on his or her behalf as may be necessary to give effect to these orders, and the Registrar shall be satisfied as to his or her authority under this order upon the complying party or his/her legal representative filing an Affidavit setting out the defaulting party’s failure to comply.

11.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;

(b) monies standing to the credit of the parties in any joint bank account are to be divided between the parties in the proportion of 35 per cent to the husband and 65 per cent to the wife;

(d) each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

(e) each party forgoes any claim they may have to any inheritances to which the other party is entitled, either presently or in the future; and

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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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