HARRADINE & HARRADINE - [2014] FamCA 188

FAMILY COURT OF AUSTRALIA

HARRADINE & HARRADINE

[2014] FamCA 188

FAMILY LAW – PROPERTY SETTLEMENT– Final Orders – whether just and equitable to make orders – contributions – husband made significant financial contributions – husband’s evidence unreliable in relation to valuation of assets – wife made both financial and homemaker contributions – treatment of addbacks and previous partial property settlement – just and equitable distribution of property – division of net assets of 55 per cent to the husband and 45 per cent to the wife

FAMILY LAW – SPOUSAL MAINTENANCE – Lump Sum – application by wife – whether wife able to adequately support herself – whether husband will be reasonably able to maintain wife – Court not satisfied necessary criteria have been met – application dismissed

FAMILY LAW – ADULT CHILD MAINTENANCE – Lump Sum – application by wife – adult child undertaking part time study and participating in sporting activities – unable to establish provision of maintenance is necessary – application dismissed

Family Law Act 1975 (Cth) ss 66J, 66L, 72, 74, 75, 79, 80

Bevan & Bevan (2014) Fam LR 387
Cosgrove & Cosgrove (1996) FLC 92-700/706?
Hickey & Hickey (2003) FLC 93-143
Maker & Maker [2012] FMCAfam 147
Marcello & Marcello [2013] FamCA 254
Marklew & Marklew [2009] FamCA 753
Norman & Norman [2010] FamCAFC 66
Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Ms Harradine

RESPONDENT:

Mr Harradine

FILE NUMBER:

ADC

1350

2011

DATE DELIVERED:

28 March 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

13-17 May 2013; 30-31 May 2013; 19 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pyke, QC

SOLICITOR FOR THE APPLICANT:

S J McKinnon and Associates

COUNSEL FOR THE RESPONDENT:

Mr Berman, SC

SOLICITOR FOR THE RESPONDENT:

Howe Martin & Associates

Orders

That if before the date of this judgment the husband has paid to the wife the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) pursuant to the Orders of the Court of 19 June 2013 the husband do pay to the wife the sum of TWO MILLION FIVE HUNDRED AND SIXTY THOUSAND SEVEN HUNDRED AND FORTY DOLLARS [$2,560,740] within sixty [60] days of this date such sum to be payable to S J McKinnon & Associates Trust Account on behalf of the wife PROVIDED THAT HOWEVER if the husband has not paid the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) to the wife pursuant to the Orders of the Court of 19 June 2013 the sum to be paid within sixty [60] days shall be TWO MILLION SIX HUNDRED AND SIXTY THOUSAND SEVEN HUNDRED AND FORTY DOLLARS [$2,660,740] AND PROVIDED FURTHER that if the husband should default in the time specified then interest shall accrue at the rate prescribed by the Family Law Rules and at the expiration of the said sixty [60] day period the husband in his own capacity with respect to Property B and in his capacity as Appointer of the Harradine Family Trust as a director of C…

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 HARRADINE & HARRADINE

Details

AGLC: HARRADINE & HARRADINE [2014] FamCA 188
Case: [2014] FamCA 188
Decision Date: 28 March 2014

CaseChat Overview and Summary

In the matter of *Harradine & Harradine*, Dawe J considered applications by both the husband and wife concerning property settlement, spousal maintenance, and adult child maintenance. The primary dispute revolved around the just and equitable distribution of the parties' net assets, with the wife also seeking spousal and adult child maintenance.

The court was required to determine whether it was just and equitable to make final property settlement orders, considering the parties' respective financial and non-financial contributions, the reliability of the husband's evidence regarding asset valuations, and the treatment of previous partial property settlements and add-backs. Additionally, the court had to assess whether the wife had met the necessary criteria for lump sum spousal maintenance and whether the provision of maintenance for their adult child was necessary.

Dawe J found that while the husband had made significant financial contributions, his evidence concerning asset valuations was unreliable. The wife's contributions, encompassing both financial and homemaker roles, were also acknowledged. The court ultimately ordered a property division of 55 per cent to the husband and 45 per cent to the wife, deeming this a just and equitable distribution. The applications for spousal maintenance and adult child maintenance were dismissed, as the court was not satisfied that the necessary criteria had been met for either application. The orders detailed a complex scheme for the payment of the wife's property settlement entitlement, including provisions for the sale of specific properties and indemnities for various liabilities.

Orders

Orders of the court

That if before the date of this judgment the husband has paid to the wife the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) pursuant to the Orders of the Court of 19 June 2013 the husband do pay to the wife the sum of TWO MILLION FIVE HUNDRED AND SIXTY THOUSAND SEVEN HUNDRED AND FORTY DOLLARS [$2,560,740] within sixty [60] days of this date such sum to be payable to S J McKinnon & Associates Trust Account on behalf of the wife PROVIDED THAT HOWEVER if the husband has not paid the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) to the wife pursuant to the Orders of the Court of 19 June 2013 the sum to be paid within sixty [60] days shall be TWO MILLION SIX HUNDRED AND SIXTY THOUSAND SEVEN HUNDRED AND FORTY DOLLARS [$2,660,740] AND PROVIDED FURTHER that if the husband should default in the time specified then interest shall accrue at the rate prescribed by the Family Law Rules and at the expiration of the said sixty [60] day period the husband in his own capacity with respect to Property B and in his capacity as Appointer of the Harradine Family Trust as a director of C Pty Ltd, the trustee of the Harradine Family Trust do cause such of the following properties to be sold as may be necessary to satisfy the wife’s entitlement pursuant to these orders in the following order:

(1.1) The property known as Property D;

(1.2) The property known as Property E;

(1.3) The property known as Property B;

(1.4) The property known as Property C

PROVIDED THAT if C Pty Ltd shall fail or refuse in its capacity as trustee of the Harradine Family Trust to authorise or direct or execute the necessary documents to effect the sale of the said Properties D, E and C then the husband in the exercise of his power of appointment with respect to the Harradine Family Trust do remove C Pty Ltd as the trustee of the said Trust and do appoint the husband and the wife as trustees of the said Trust.

Until the husband shall have paid to the wife all sums due and payable to her pursuant to these Orders the Order made herein on 21 December 2012 namely that pending further Order the husband do pay to the wife the sum of TWO THOUSAND FIVE HUNDRED DOLLARS [$2,500] per week spousal maintenance do continue.

For the purposes of compliance with this Order and not otherwise the husband is released from the compliance with paragraphs 1, 2 and 4 of the Orders of 19 June 2013.

Until the husband shall have paid to the wife all of such sums as may be due and owing to her pursuant to the Orders of the Court, the husband be restrained in his personal capacity as the Appointor of the Harradine Family Trust and as director of C Pty Ltd from:

(4.1) exercising his power of appointments other than in accordance with the terms of these Orders;

(4.2) from selling, transferring, encumbering or otherwise dealing with the real property the subject of these Orders other than in accordance with these Orders and to the extent of the limited borrowings currently secured over the said properties.

Upon compliance by the husband paragraphs 1 and 2 of these Orders the wife do transfer and/or assign her interest in the partnership Harradine Partners to the husband at tax values as at the 30 June 2013.

The husband do indemnify the wife and keep her forever indemnified with respect to any debts or liabilities of the partnership including any taxes or penalties including the wife’s personal income tax, Capital Gains Tax or GST payable or arising out of any interest or involvement of the wife in the said partnership and any distributions or profits attributable to her arising howsoever out of or in connection with her interest or involvement in the said partnership.

Upon compliance by the husband with paragraphs 1 and 2 hereof the wife do transfer to the husband any credit loan account that she may have in the said partnership and the husband do indemnify her with respect to any debit loan account she may have in the said partnership.

Upon compliance by the husband with paragraphs 1 and 2 hereof the wife do transfer to the husband her shareholding in C Pty Ltd.

The husband do indemnify the wife with respect to all debts or liabilities of C Pty Ltd including in its capacity as trustee of the Harradine Family Trust and the Harradine Investment Trust.

10.

The wife do assign to the husband any credit or debit loan account that she may have in the Harradine Family Trust or the Harradine Investment Trust and that the husband do indemnify the wife with respect to any debit loan account that she may have with respect to either of the said trusts.

11.

The wife do retain as her sole property the motor vehicles and horse floats in her possession, the contents of the I Street property, the contents of Property C delivered up to her in accordance of the Orders of the Court, her savings and investments.

12.

The husband do otherwise retain as his sole property his interest in the partnership Harradine Partners, the sole trading business Harradine, C Pty Ltd, the Harradine Family Trust and the Harradine Investment Trust and all other real or personal property in his possession or control but subject to the Orders of this Court.

13.

Within sixty [60] days of today the parties agree as to the division of the household goods, furniture and contents of Property C and failing agreement within twenty-one [21] days thereafter the wife to provide to the husband a list of selected items, furniture and household goods up to and not exceeding in value one half of the valuation in accordance with the values of the valuer (one-half SIX THOUSAND FIVE HUNDRED AND FIFTEEN DOLLARS [$6,515]) and thereafter the husband to make the same available to the wife within fourteen [14] days for the wife to collect at her own cost such items. The balance of the contents, furniture and household goods at Property C to remain the property of the husband. Thereafter each party to retain the furniture and household goods as their sole property free from any claim by the other.

14.

If at the date of this Order the parties have not paid the outstanding F School fees equally, the same be paid as to one-half each by the parties PROVIDED THAT if one of the parties has paid the full amount the other party shall reimburse that party for one-half of the said school fees within seven [7] days of this Order.

15.

That the wife’s application for lump sum spouse maintenance and adult child maintenance are dismissed.

16.

Save as to costs all applications are dismissed and removed from the active pending cases list.

17.

Certified fit for 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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