IABH & HRBH - [2010] FamCA 110

FAMILY COURT OF AUSTRALIA

IABH & HRBH

[2010] FamCA 110

FAMILY LAW - PROPERTY - The effect of the Full Court’s orders upon the exercise of discretion when considering contributions - capital gains tax - consideration of the four “principles” in Rosati - the assessment of capital gains tax as a significant s 75(2) factor - consideration of lifestyle since separation as a s 75(2)(g) matter - consideration of the wife’s health, disparity in the party’s wealth and other s 79(4)(d) - (g) matters

Family Law Act 1975 (Cth)

Z & Z (2005) FLC 93-241
Omacini v Omacini (2005) FLC 93-218
HDM & MM and SJM [2006] FamCA 47
Farnell and Farnell (1996) FLC 92-681
Gollings & Scott (2007) FLC 93-319
C & C [1998] FamCA 143
Chorn & Hopkins (2004) FLC 93-204
DJM & JLM (1998) FLC 92-816
Rosati v Rosati (1998) FLC 92-804
Brandt & Brandt (1997) FLC 92-758
Robb & Robb (1995) FLC 92-555
Tomasetti and Tomasetti (2000) FLC 93-023
T & D & Anor [2006] FamCA 1248
Lawrie & Lawrie (1981) FLC 91-102
Waters and Jurek (1995) FLC 92-635

APPLICANT:

Ms IABH

RESPONDENT:

Mr HRBH

FILE NUMBER:

TVF

2003

DATE DELIVERED:

22 February 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Cairns

JUDGMENT OF:

Watts J

HEARING DATE:

19, 20, 23 and 24 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr North, senior counsel

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT:

Mr Kirk, senior counsel

SOLICITOR FOR THE RESPONDENT:

Miller Harris Lawyers

Orders

An order be made pursuant to s 79 Family Law Act 1975 in the terms of paragraphs 2 to 7 below.
Within 60 days the Husband pay to the Wife the sum of $328,820.
In default of the payment by the Husband in accordance with paragraph 2, the Husband sign all documents and do all such acts and things as are required to sell the real property at P being the whole of the land more particularly described as Lot … on Building Unit Plan … in the County of …, Parish of … in the State of Queensland ("the Villa") and upon the settlement of the sale of the Villa, the proceeds be applied as follows:
3.1.Firstly, to pay the costs of and incidental to the sale;
3.2.Secondly, to discharge any mortgages registered on the title;
3.3.Thirdly, to make the payment as per Order 2 to the Wife together with interest calculated in accordance with the Family Law Act 1975 and the Family Law Rules 2004 from the date of default until payment;
3.4.The balance (if any) to the Husband.
In the event that the proceeds of sale of the Villa are insufficient to meet the payment by the Husband in accordance with paragraph 2 hereof, the Husband in his capacity as a Director of WB Pty Ltd sign all documents and do such all acts and things as are required to sell the real property at M Street, P being the whole of the land more…

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 IABH & HRBH

Details

AGLC: IABH & HRBH [2010] FamCA 110
Case: [2010] FamCA 110
Decision Date: 22 February 2010

CaseChat Overview and Summary

The matter before Watts J concerned property settlement orders between the Husband and Wife. The dispute centred on the division of assets and liabilities, including significant real estate holdings and business interests. The court was tasked with making final orders pursuant to section 79 of the *Family Law Act 1975* (Cth).

The court was required to determine the appropriate financial orders to be made between the parties, including the quantum of any payment to be made by the Husband to the Wife. This involved considering the disposition of various properties, including a villa, a property on M Street, and shops on G Street, and the application of proceeds from their potential sale. Furthermore, the court needed to address the Husband's indemnification of the Wife concerning liabilities arising from her past involvement with certain companies and trusts, as well as any guarantees she had signed.

Watts J ordered that the Husband pay the Wife a sum of $328,820 within 60 days. In default of this payment, the Husband was directed to sell the Villa, with the proceeds to be applied first to sale costs, then to discharge any mortgages, and then to satisfy the payment to the Wife with interest. If the Villa's sale proceeds were insufficient, the Husband was to sell the M Street property, with proceeds applied similarly. If both were insufficient, the Husband was to sell the G Street Shops, again with proceeds applied in the same order. The Husband was also ordered to indemnify the Wife against all past, present, and future liabilities related to her previous involvement in specified business entities and any guarantees she had signed, and to procure her discharge from such liabilities. Each party was to retain property in their possession, with specific provisions for bank accounts, superannuation, and insurance policies, and to indemnify the other against liabilities encumbering property they received. A Registrar was appointed to execute documents on the Husband's behalf if necessary to give effect to the orders.

Orders

Orders of the court

An order be made pursuant to s 79 Family Law Act 1975 in the terms of paragraphs 2 to 7 below.

Within 60 days the Husband pay to the Wife the sum of $328,820.

In default of the payment by the Husband in accordance with paragraph 2, the Husband sign all documents and do all such acts and things as are required to sell the real property at P being the whole of the land more particularly described as Lot … on Building Unit Plan … in the County of …, Parish of … in the State of Queensland ("the Villa") and upon the settlement of the sale of the Villa, the proceeds be applied as follows:

3.1. Firstly, to pay the costs of and incidental to the sale;

3.2. Secondly, to discharge any mortgages registered on the title;

3.3. Thirdly, to make the payment as per Order 2 to the Wife together with interest calculated in accordance with the Family Law Act 1975 and the Family Law Rules 2004 from the date of default until payment;

3.4. The balance (if any) to the Husband.

In the event that the proceeds of sale of the Villa are insufficient to meet the payment by the Husband in accordance with paragraph 2 hereof, the Husband in his capacity as a Director of WB Pty Ltd sign all documents and do such all acts and things as are required to sell the real property at M Street, P being the whole of the land more particularly described as Lot … on Registered Plan … in the County of …, Parish of … in the State of Queensland ("M Street") and upon the settlement of the sale of M Street, the proceeds be applied as follows:

4.1. Firstly, to pay the costs of and incidental to the sale;

4.2. Secondly, to discharge any mortgages registered on the title;

4.3. Thirdly, to make the payment as per Order 2 to the Wife together with interest calculated in accordance with the Family Law Act 1975 and the Family Law Rules 2004 from the date of default until payment;

4.4. The balance (if any) to the Husband.

In the event that the proceeds of sale of the Villa and M Street are insufficient to meet the payment by the Husband in accordance with paragraph 2, the Husband in his capacity as a director of K Pty Ltd sign all documents and do all acts and things as are required to sell the real property at G Street, P being the whole of the land more particularly described as Lot … on Crown Plan PTD … in the County of …, Parish of … in the State of Queensland ("G Street Shops") and upon the settlement of the sale of the G Street shops, the proceeds be applied as follows:

5.1. Firstly, to pay the costs of and incidental to the sale;

5.2. Secondly, to discharge any mortgages registered on the title;

5.3. Thirdly, to make the payment as per Order 2 to the Wife together with interest calculated in accordance with the Family Law Act 1975 and the Family Law Rules 2004 from the date of default until payment;

5.4. The balance (if any) to the Husband.

The Husband indemnify the Wife and keep her indemnified in relation to all past, present and future liabilities including:

6.1. income tax, goods and services tax, fringe benefits tax, capital gains tax and any other tax and/or penalties howsoever incurred by the Wife as a result of her previous interest in, and/or her involvement in, any company and/or trust entity which is to be retained by the Husband in accordance with any Orders made by this Honourable Court (including the Orders made by the Honourable Justice Buckley on 22 March 2005 and the Honourable Deputy Chief Justice Faulks on 8 October 2008);

6.2. any Guarantees signed by the Wife during the course of the marriage and cause the Wife to be discharged from any liability arising under the Guarantees;

6.3. any liability for the debts of WB Pty Ltd, the BH Family Trust and/or K Pty Ltd ("the business entities") including any debit or credit loan accounts; and

6.4. any other liabilities which have arisen or are yet to arise as a result of the Wife's previous involvement in the business entities.

Unless specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

7.1. Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date;

7.2. Money standing to the credit of the parties in any bank account is to be become the property of the person named as the owner of the bank account;

7.3. Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

7.4. All insurance policies shall become the sole property of the owner named thereon;

7.5. Each party be liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

Pursuant to Section 106A of the Family Law Act 1975, a Registrar or a Deputy Registrar of the Family Court of Australia is hereby appointed to execute all deeds and documents in the name of the Husband and do all acts and things necessary to give validity and operation to these Orders.

Either party have liberty to apply on fourteen days notice to apply for any order relating to the implementation of these Orders.

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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