Ignacio v Ignacio - [2016] FamCA 50

FAMILY COURT OF AUSTRALIA

IGNACIO & IGNACIO

[2016] FamCA 50

FAMILY LAW – PROPERTY SETTLEMENT – Where the parties properly agreed it was just and equitable for their property interests to be adjusted – Where the parties’ contributions resulted in equal entitlement to the available assets and superannuation interests – Where the wife will retain the role of primary carer for a child of the marriage for longer than the husband, warranting an adjustment of 5 per cent in her favour – Where the wife is entitled to 55 per cent of the parties’ net assets and superannuation interests – Husband is entitled to 45 per cent

FAMILY LAW – CHILD SUPPORT DEPARTURE – Where the husband sought a departure from the administrative assessment of his child support liability – Where in reality the husband’s child support departure application comprised an appeal against a decision of the SSAT – Discussion of the implications of the enactment of the Tribunals Amalgamation Act 2015 (Cth) – Where in these circumstances, it would not be just and equitable or otherwise proper for the husband’s application to succeed as a fresh departure application – Where the success of such a departure application would be tantamount to an abuse of the appeal process – Where it is otherwise not just and equitable to make a departure in respect of a support assessment within an historical closed period of three months – Husband’s application in relation to child support dismissed – Wife’s application for recovery of arrears dismissed

Child Support (Assessment) Act 1989 (Cth), ss 98J, 116, 117, 118
Child Support (Registration and Collection) Act 1988 (Cth), ss 30, 110B, 111F, 113, 113A
Evidence Act 1995 (Cth), ss 135
Family Law Act 1975 (Cth), ss 75, 79, 106A
Family Law Rules 2004 (Cth), rr 4.22

Bevan & Bevan (2013) 49 Fam LR 387
Smith v NSW Bar Association (No 2) (1992) 176 CLR 256
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Ignacio

RESPONDENT:

Mr Ignacio

FILE NUMBER:

NCC

671

2013

DATE DELIVERED:

10 February 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

14, 15, 16 & 17 December 2015, and 2 & 10 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tregilgas

SOLICITOR FOR THE APPLICANT:

Catherine Henry Partners

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITOR FOR THE RESPONDENT:

Boyd Olsen Lawyers

Orders

The wife shall pay to the husband the sum of $256,549 within 60 days of the date of these orders.
Subject to compliance with Order 1 hereof, and in consideration of that payment, the wife is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier 9126/874539, being the property more commonly known as E Street, F Town, NSW (“the property”), and the husband shall do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the wife contemporaneously with his…

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.

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Details

Case: [2016] FamCA 50
Decision Date: 10 February 2016

CaseChat Overview and Summary

In *Ignacio v Ignacio*, Austin J of the Family Court of Australia determined property settlement and child support matters between the parties. The primary dispute concerned the division of the parties' assets and superannuation interests, and the husband sought a departure from the administrative assessment of his child support liability.

The court was required to consider whether it was just and equitable to adjust the parties' property interests, and if so, to what extent, given their respective contributions and future needs. Additionally, the court had to determine whether the husband's application for a departure from child support assessment should succeed, particularly in light of the implications of the *Tribunals Amalgamation Act 2015* (Cth) and the historical period of the assessment.

Austin J found that while the parties' contributions were equal, the wife's ongoing role as the primary carer for a child of the marriage warranted a 5% adjustment in her favour. Consequently, the wife was entitled to 55% of the net assets and superannuation interests, and the husband to 45%. Regarding child support, the court dismissed the husband's application, deeming it an abuse of process to treat it as a fresh departure application and finding it neither just nor equitable to grant a departure within a closed historical period. The wife's application for recovery of arrears was also dismissed.

The orders provided for the wife to pay the husband a sum of $256,549 within 60 days, in consideration of which she would become the sole owner of the parties' former home. The orders also detailed the process for the sale of the property should the wife default on payment, and stipulated how the proceeds of sale would be distributed. Each party was declared the sole owner of other assets in their possession, and solely liable for associated debts. The Registrar was empowered to execute documents on behalf of the parties if necessary, and costs were reserved.

Orders

Orders of the court

The wife shall pay to the husband the sum of $256,549 within 60 days of the date of these orders.

Subject to compliance with Order 1 hereof, and in consideration of that payment, the wife is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier 9126/874539, being the property more commonly known as E Street, F Town, NSW (“the property”), and the husband shall do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the wife contemporaneously with his receipt of payment pursuant to Order 1 hereof.

Subject to compliance with Orders 1 and 2 hereof, the wife shall indemnify and keep indemnified the husband against:

(a) all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the property;

(b) the parties’ joint personal loan mortgage; and

In default of compliance with Order 1 hereof, unless otherwise agreed, the parties shall do all such acts and things and sign all such documents as may be necessary to forthwith list the property for sale upon the following conditions:

(a) The property shall be listed for sale by private treaty.

(b) The listing agent shall be as agreed between the parties, but in default of agreement, the agent chosen by ballot from the respective choices of the parties.

(c) The listing price for the property shall be as agreed between the parties, but in default of agreement, the price nominated by the listing agent.

(d) In the event of the property not being sold within 3 months from the date of its listing for sale then it shall be put to sale by public auction on the following terms:

(i) The auctioneer shall be as agreed between the parties, but in default of agreement, the auctioneer chosen by ballot from the respective choices of the parties.

(ii) The auction shall take place within 6 weeks of the deadline date for sale by private treaty.

(iii) The reserve price shall be as agreed between the parties, but in default of agreement, the reserve price nominated by the auctioneer.

(e) In the event the property is not sold by auction, or private negotiation within a further 7 days, then it shall be submitted to successive auctions within further 6 week periods until sold, otherwise upon the same terms and conditions as applied to the first auction.

(f) The parties are restrained from further charging, mortgaging, or encumbering the property pending its sale, other than for the purpose of permitting the wife’s compliance with Order 1 hereof.

(g) The wife may occupy the property to the exclusion of the husband pending its sale pursuant to these orders, provided she meets the mortgage repayments and insurance premiums in respect of the property as and when those expenses fall due, maintains the property in a reasonable state of repair, and facilitates inspection of the property by prospective purchasers.

Upon completion of the sale of the property pursuant to Order 4 hereof, the proceeds of sale shall be applied as follows:

(a) First, to pay all costs, commissions, and expenses of the sale, and to pay any Council and water rates outstanding in respect of the property.

(b) Secondly, to discharge any encumbrance registered over or affecting the property.

(c) Thirdly, to discharge the parties’ joint personal loan mortgage and the debit balance of the parties’ joint CBA debit account.

(d) Fourthly, to pay $13,998 to the husband.

(e) Fifthly, to pay 45 per cent of the balance then remaining to the husband.

(f) Lastly, to pay the balance then remaining to the wife.

Unless otherwise provided:

(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed to be in the possession of the superannuant.

(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession and any debts in their respective sole names.

In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders, the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to section 106A of the Family Law Act 1975 (Cth).

Costs are reserved for 28 days.

Otherwise, all outstanding applications are dismissed.

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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