Higgins and Higgins - [2013] FCCA 549

FEDERAL CIRCUIT COURT OF AUSTRALIA

HIGGINS & HIGGINS

[2013] FCCA 549

Catchwords:
FAMILY LAW – Property – application for property settlement – just and equitable – property and liabilities – “add-backs” – contributions by the parties – assessment of the weight of initial contributions – gifts or loans from respondent’s parents regarded as contributions by the respondent – adjustments under s.75(2) of the Family Law Act 1975 (Cth) – child support – where respondent has a child support debt – where two of the parties’ three children reside with the applicant.

Legislation:
Child Support (Registration and Collection) Act 1988 (Cth), s.116
Family Law Act 1975 (Cth), ss.75, 79, 81, 90MJ, 90MT, 106A

Family Law (Superannuation) Regulations 2001 Part 6

Federal Circuit Court Rules 2001 r.21.2

DJM & JLM [1998] FamCA 97; (1998) 23 Fam LR 396; FLC 92-816
Essex & Essex [2009] FamCAFC 236; (2009) FLC 93-423
Gosper & Gosper (1987) 90 FLR 1; 11 Fam LR 601; FLC 91-818
Higgins & Higgins [2012] FMCAfam 815
Higgins & Higgins [2012] FMCAfam 1503
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
Jones v Dunkel (1959) 101 CLR 298
Kessey & Kessey (1994) 18 Fam LR 149; FLC 92-495
Pellegrino & Pellegrino (1997) 22 Fam LR 474; FLC 92-789
Pierce & Pierce [1998] FamCA 74; 24 Fam LR 377; FLC 92-844
Stanford v Stanford [2012] HCA 52

Applicant:

MS HIGGINS

Respondent:

MR HIGGINS

File Number:

SYC 5083 of 2010

Judgment of:

Judge Scarlett

Hearing dates:

4 and 5 October 2013

Date of Last Submission:

6 November 2013

Delivered at:

Sydney

Delivered on:

18 June 2013

REPRESENTATION

Solicitors for the Applicant:

Marsdens Law Group

Counsel for the Respondent:

Mr Rosic

Solicitors for the Respondent:

Aitken Lawyers

ORDERS

Within fourteen (14) days of the date of these Orders, the Applicant and the Respondent shall do all acts and things necessary to sell the property situate at and known as Property C in the State of New South Wales, being the whole of the land in Folio Identifier [omitted].
The parties are to list the property for sale by private treaty at a selling price of $850,000.00 or such other figure as the parties shall agree.
The parties are to agree on a Real Estate Agent to sell the property and in default of agreement the Agent is to be nominated by the President of the Real Estate Institute of New South Wales or his/her nominee.
The Respondent must co-operate in every way with the selling Agent including:
(a)Making the keys available to the Agent;
(b)Allowing inspection of the property at all reasonable times;
(c)Ensuring the property is in a neat and clean condition at the time of any inspection; and
(d)Signing all documents as requested by the Agent in relation to the listing of the property for sale.
The Applicant and the Respondent are to agree on a Solicitor to act on the sale of the property and in default of agreement the Solicitor…

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 Higgins and Higgins

Details

AGLC: HIGGINS & HIGGINS [2013] FCCA 549
Case: [2013] FCCA 549
Decision Date: 18 June 2013

CaseChat Overview and Summary

This matter came before Judge Scarlett concerning the financial relationship between the Applicant and the Respondent. The dispute centred on the division of property and the allocation of debts between the parties.

The court was required to determine how the parties' property, including a jointly owned property, various financial assets, and superannuation interests, should be divided. Additionally, the court needed to address the allocation of specific debts and the method by which the division of superannuation would be implemented.

Judge Scarlett ordered the sale of the jointly owned property, with the proceeds to be distributed after payment of secured debts, rates, selling costs, and legal fees. A significant portion of the remaining proceeds was allocated to the Applicant, with the balance to the Respondent. The court also made specific orders regarding the retention of personal property by each party, with the Respondent retaining certain business and trust interests, and the Applicant retaining others, including her superannuation. The Respondent was ordered to transfer a specified amount from his superannuation fund to the Applicant, with detailed provisions for the implementation of this split under the *Family Law Act 1975*. The court also ordered each party to indemnify the other in respect of specified debts. The orders were intended to finally determine the financial relationship between the parties and avoid further proceedings.

Orders

Orders of the court

Within fourteen (14) days of the date of these Orders, the Applicant and the Respondent shall do all acts and things necessary to sell the property situate at and known as Property C in the State of New South Wales, being the whole of the land in Folio Identifier [omitted].

The parties are to list the property for sale by private treaty at a selling price of $850,000.00 or such other figure as the parties shall agree.

The parties are to agree on a Real Estate Agent to sell the property and in default of agreement the Agent is to be nominated by the President of the Real Estate Institute of New South Wales or his/her nominee.

The Respondent must co-operate in every way with the selling Agent including:

(a) Making the keys available to the Agent;

(b) Allowing inspection of the property at all reasonable times;

(d) Signing all documents as requested by the Agent in relation to the listing of the property for sale.

The Applicant and the Respondent are to agree on a Solicitor to act on the sale of the property and in default of agreement the Solicitor is to be nominated by the President of the Law Society of New South Wales.

Upon completion of the sale of the property the proceeds of sale are to be paid and distributed in the following manner and priority:

(a) In payment of all monies owing under any mortgage secured over the property;

(b) In payment of all council and water rates outstanding;

(d) In payment of all solicitor’s costs of acting on the sale; and

(e) As to the balance remaining:

(i) The sum of $622,179.00 to the Applicant; and

(ii) The balance to the Respondent.

The Respondent is to retain to the exclusion of the Applicant all items of personal property in his possession or control including but not limited to:

(a) All bank accounts, shares and debentures;

(b) All items of furniture and furnishings currently in his possession;

(d) His interest in (omitted) Pty Ltd;

(e) His interest in the Higgins Family Trust and (omitted) Family Trust;

(f) His interest in (omitted) Pty Ltd;

(g) The Higgins Family Trust; and

(h) (omitted) Trust; and

(i) Any other item of personalty currently in his possession or control.

The following seven (7) Orders are binding on the Trustee of the Respondent’s (omitted) Superannuation Fund.

The base amount of $85,000.00 is to be allocated to the Applicant in accordance with these Orders out of the interest of the Respondent in the (omitted) Superannuation Fund member number [omitted].

10.

In accordance with Section 90MJ of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the Respondent in the (omitted) Superannuation fund member number [omitted] the Applicant shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there is to be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

11.

Order (12) has effect from the operative time.

12.

The operative time for the purposes of Order (11) is four (4) business days after the date of service of these Orders upon the Trustee of the Respondent’s (omitted) Superannuation Fund.

13.

The Respondent shall within fourteen (14) days of becoming entitled to receive a superannuation benefit from the (omitted) Superannuation Fund provide to the Trustee of the (omitted) Superannuation Fund all such forms as may be necessary to enable it to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require.

14.

In the event that superannuation split to the Applicant under these Orders can be rolled over into a separate account the Applicant, each of the parties shall do all acts, sign all necessary documents and take all action to facilitate and implement that rollover.

15.

Each party and the Trustee shall have liberty to apply in relation to the implementation of these Orders affecting the superannuation interest.

16.

The Applicant is to retain to the exclusion of the Respondent:

(a) All bank accounts, shares and debentures;

(b) All items of furniture and furnishings currently in her possession;

(d) Her interest in any superannuation fund; and

(e) Any other item of personalty currently in her possession or control.

17.

The Applicant is to indemnify the Respondent and keep him indemnified in respect of:

(a) Any monies owing under the loan to purchase her motor vehicle;

(b) A debt owing to her mother Ms E;

(d) Any amount owing to the Australian Taxation Office under an income tax assessment in her name;

(e) Any amount by her to Centrelink;

(f) Any amount owing to the (omitted) Bank in respect of a personal loan in her name; and

(g) Any other debt owing in her name.

18.

The Respondent is to indemnify the Applicant and keep her indemnified in respect of:

(a) Any amount owing to the Australian Taxation Office under an income tax assessment in his name; and

(b) Any other debt owing in his name.

19.

As provided by section 81 of the Family Law Act these Orders are intended to operate to determine the financial relationships between the parties and avoid further proceedings between them.

20.

The Applicant and the Respondent are to do all things and give all consents and execute all deeds, documents and instruments necessary to give effect to these Orders within the times required by these Orders.

21.

In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to any of these Orders then a Registrar or Deputy Registrar of the Court is appointed under section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar or Deputy Registrar being provided with a verification of the refusal or neglect by way of affidavit.

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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