Hadden and Mansell - [2014] FamCA 927

FAMILY COURT OF AUSTRALIA

HADDEN & MANSELL

[2014] FamCA 927

FAMILY LAW – PROPERTY – Where it is just and equitable for orders to be made – Where both parties sought an alteration to existing property interests due to the breakdown of their relationship – where the value of the parties assets was small – where the wife’s future needs justify an adjustment in her favour.
FAMILY LAW – CHILD SUPPORT – Application for departure – where the children have special needs – where the parents agreed to enrol the children in private schooling – where the father has capacity to make additional child support payments – where it is just and equitable for there to be a departure from the child support assessment.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

Chorn & Hopkins (2004) FLC 93-204
Coghlan & Coghlan (2005) FLC 93-220
In the Marriage of Gyselman (1992) FLC 225
Mayne & Mayne [2011] FamCAFC 192
Pierce & Pierce (1999) FLC 92-844
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Hadden

RESPONDENT:

Mr Mansell

FILE NUMBER:

CAC

1641

2012

DATE DELIVERED:

30 October 2014

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

21 October 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Hadden represented herself

COUNSEL FOR THE RESPONDENT:

Mr Brown

SOLICITOR FOR THE RESPONDENT:

Browns Lawyers

Orders

The Husband and Wife do all acts and sign all necessary documents to effect the sale of the business known as X Business (“the business”) and the property upon which the business is carried on at B Street, Town Y in the state of New South Wales being real property described as Lot … in Deposited Plan …, Parish of …, County of …, Folio … (“the Y property”) upon the following terms:
(a)       The business and Y property shall be listed for sale with one business broker or real estate agent;
(b)       The Husband and Wife shall do all acts and sign all necessary documents to list the business and Y property with such business broker or real estate agent;
(c)       The Husband and Wife shall do all acts and sign all necessary documents to effect the sale of the business and Y property including the signing of all Contracts of Sale, transfers, real estate agent authority forms, business broker authority forms, mortgage discharge forms, solicitors’ authorities and other documents required to be signed to effect the sale;
(d)       The business and Y property shall be sold together.
Upon completion of the sale of the business and Y property the Husband and Wife shall do all acts and sign all necessary documents to pay the proceeds of sale of the business and Y property as follows:
(a)       Firstly to pay the business broker’s commission and legal costs of the sale;
(b)       Secondly to pay in full the mortgage to the ANZ Bank secured upon the title to the Y property including the business loan;
(c)       Thirdly the balance to be…

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 Hadden and Mansell

Details

AGLC: Hadden and Mansell [2014] FamCA 927
Case: [2014] FamCA 927
Decision Date: 30 October 2014

CaseChat Overview and Summary

This matter concerned orders made by Faulks DCJ in the Federal Circuit and Family Court of Australia. The dispute involved the division of property and superannuation entitlements between a husband and wife. The orders sought to finalise the financial relationship between the parties, including the sale of a business and associated property, the distribution of sale proceeds, and the allocation of various assets and liabilities.

The court was required to determine how the parties' various assets and liabilities, including a business, real property, superannuation funds, personal effects, and debts, should be divided. A key issue was the allocation of a specific amount from the husband's superannuation fund to the wife, as required by section 90MT(4) of the *Family Law Act 1975* (Cth), and the subsequent calculation and payment of this entitlement. The court also needed to ensure that the orders were enforceable, including provisions for default.

The court applied principles of property settlement under the *Family Law Act 1975* (Cth), particularly concerning the division of superannuation interests. The reasoning involved a detailed allocation of specific assets and liabilities to each party, aiming for a final and equitable distribution. The court made specific orders for the sale of the business and property, with proceeds to be distributed in a defined order of priority. Provisions were made for the transfer of superannuation entitlements, including a splittable payment from the husband's superannuation fund to the wife, calculated in accordance with the *Family Law (Superannuation) Regulations 2001* (Cth).

The court ordered the sale of the business and the property upon which it was carried on, with the net proceeds to be distributed in a specified manner. The orders also detailed the division of superannuation entitlements, personal effects, and the allocation of specific debts. Crucially, the court appointed a Registrar to execute documents if either party defaulted in complying with the orders, ensuring their enforceability pursuant to section 106A of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

The Husband and Wife do all acts and sign all necessary documents to effect the sale of the business known as X Business (“the business”) and the property upon which the business is carried on at B Street, Town Y in the state of New South Wales being real property described as Lot … in Deposited Plan …, Parish of …, County of …, Folio … (“the Y property”) upon the following terms:

(a) The business and Y property shall be listed for sale with one business broker or real estate agent;

(b) The Husband and Wife shall do all acts and sign all necessary documents to list the business and Y property with such business broker or real estate agent;

(c) The Husband and Wife shall do all acts and sign all necessary documents to effect the sale of the business and Y property including the signing of all Contracts of Sale, transfers, real estate agent authority forms, business broker authority forms, mortgage discharge forms, solicitors’ authorities and other documents required to be signed to effect the sale;

(d) The business and Y property shall be sold together.

Upon completion of the sale of the business and Y property the Husband and Wife shall do all acts and sign all necessary documents to pay the proceeds of sale of the business and Y property as follows:

(a) Firstly to pay the business broker’s commission and legal costs of the sale;

(b) Secondly to pay in full the mortgage to the ANZ Bank secured upon the title to the Y property including the business loan;

(c) Thirdly the balance to be paid as to a ONE THIRD (1/3) share thereof to D PTY LTD as Trustee for THE MANSELL FAMILY TRUST (“The Mansell Family Trust”), a ONE THIRD (1/3) share thereof to MS G and MR G and a ONE THIRD (1/3) share thereof to MR C and MS C.

The Husband and Wife, in whatever capacity, shall do all acts and sign all necessary documents as may be possible to pay and distribute all of the proceeds of sale of the business and Y property receivable through The Mansell Family Trust to the Wife.

The Husband shall retain in his possession and ownership, the Wife shall relinquish any claim she may have in respect thereto and shall do all acts and sign all necessary documents to transfer to the Husband all of the Wife’s right, title and interest in and to the following:

(a) The balance of the Husband’s W Bank superannuation entitlements following the superannuation split effected under the terms of these Orders;

(b) The furniture and personal effects presently in the Husband’s possession.

The Wife shall retain in her possession and ownership, the Husband shall relinquish any claim he may have in respect thereto and shall do all acts and sign all necessary documents to transfer to the Wife all of the Husband’s right, title and interest in and to the following:

(a) The Wife’s Hesta Super superannuation entitlements;

(b) The Wife’s Australian Ethical Super superannuation entitlements;

(d) The furniture and personal effects presently in the Wife’s possession;

(e) The proceeds of sale of the campervan sold by the Wife; and

(f) The Kia motor vehicle.

The Husband shall pay, be liable for and indemnify the Wife in respect of the following:

(a) The Husband’s W Bank Mastercard debt;

(b) The Husband’s W Bank personal loan;

A base amount of SIXTY NINE THOUSAND DOLLARS ($69,000.00) is allocated, as required by section 90MT(4) of the Family Law Act 1975 (“the Act”) to the Wife out of the Husband’s interest in W Bank Superannuation Fund (“the W Bank Superannuation Fund”).

In accordance with section 90MT(1)(a) of the Act:

(a) The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount referred to in Paragraph 7 of these Orders; and

(b) The Husband’s entitlement and the entitlement of such other person to whom a splittable payment may be made to payments out of the Husband’s interest in the W Bank Superannuation Fund, is correspondingly reduced.

The Trustee of the W Bank Superannuation Fund shall do all acts and sign all necessary documents to:

(a) Calculate in accordance with the requirements of the Act, the entitlement created by paragraph 8 of this Order, and

(b) Pay the entitlement whenever a splittable payment becomes payable out of the Husband’s interest in the W Bank Superannuation Fund.

10.

These Orders have effect upon the operative time and the operative time is the date four (4) business days from the date of service of a copy of the sealed Orders upon the Trustee of the W Bank Superannuation Fund.

11.

Both parties shall do all acts and sign all necessary documents to implement and carry out the terms of these Orders.

12.

In the event the either party defaults in the doing of any act and/or the signing of any document as is necessary to give effect to these Orders then a Registrar of this Honourable Court is hereby appointed pursuant to section 106A of the Family Law Act 1975 to do all acts and execute all necessary documents in the name of the Wife or the Husband to give validity and operation to the terms of these Orders.

13.

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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