FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Isherwood & Callins [2023] FedCFamC2F 1628
File number(s): PAC 4521 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 15 December 2023 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT- De facto relationship comprising two separate periods of cohabitation – Where the respondent made greater contributions to the acquisition and maintenance of the properties owned by the parties – Where the applicant has failed to adequately disclose shares owned by him – Where the respondent has had the majority care of the two children of the relationship since separation and the applicant has made inconsistent child support payments – Contributions assessed as 60% to the applicant with a 7% adjustment for future needs. Legislation: Family Law Act 1975 (Cth) Part VIIIAB, ss 44(6), 79SM(4)(d)-(g), 90F, 90SB, 90SK, 90SM(4)(d)-(g)
Evidence Act 1995 (NSW) s140
Cases cited: Black v Kellner (1992) FLC 92-287
Fields & Smith [2015] FamCAFC 57
Horrigan & Horrigan [2020] FamCAFC 25
Kessey & Kessey (1994) FLC 92-495
Stanford & Stanford [2012] HCA 52
Weir v Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 95 Date of hearing: 19 – 20 September 2023 Place: Sydney Counsel for the Applicant: Ms Haughton Solicitor for the Applicant: Brydens Lawyers Counsel for the Respondent: Mr Mathews Solicitor for the Respondent: Dina Lawyers ORDERS
PAC 4521 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ISHERWOOD
Applicant
AND: MS CALLINS
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
15 DECEMBER 2023
THE COURT ORDERS THAT:
1.By consent, leave is granted to the parties to institute proceedings for alteration of property interests out of time pursuant to section 44(6) of the Family Law Act1975 (Cth).
2.By no later than 4:00pm on 16 January 2024 the Respondent shall pay to the Applicant the sum of $142,304.
3.Simultaneously with the Respondent’s compliance with Order 2 above the Applicant shall do all such things as are necessary to transfer to the Respondent all of his right, title and interest in the following properties:
(a)B Street, Suburb C (the B Street property”); and
(b)D Street, Suburb C (“the D Street property”).
4.In the event the Respondent does not comply with Order 2 above the parties shall do all things necessary to list the D Street property for sale forthwith as follows:
(a)The D Street property shall be listed for auction with such real estate agent as is agreed between the parties and failing agreement by no later than 4:00pm on 30 January 2024 the real estate agent will be nominated by the President of the Real Estate Institute of New South Wales;
(b)The reserve price of the D Street property shall be such amount as agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer;
(c)The parties shall give such instructions as are necessary to a solicitor or conveyancer to prepare a contract…
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- Isherwood & Callins [2023] FedCFamC2F 1628
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- [2023] FedCFamC2F 1628
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CaseChat Overview and Summary
The court had to address several legal issues, including the assessment of financial contributions made by each party, the implications of the applicant's failure to disclose certain shares, and the care arrangements and child support payments made by the applicant post-separation. Additionally, the court had to consider the appropriate division of superannuation benefits and the implications of the applicant’s failure to contribute adequately to the care of their children.
In delivering the judgment, the court evaluated the evidence and submissions from both parties. It found that Ms Callins had made greater financial contributions to the properties, and despite this, Mr Isherwood had failed to adequately disclose shares he owned. The court also considered the care arrangements and found that Ms Callins had the majority care of the children and the applicant's inconsistent child support payments. The court assessed the financial contributions at 60% for Mr Isherwood, with a 7% adjustment for future needs. The court ordered the transfer of certain properties to Ms Callins and directed the sale of one property if the payments were not made by the stipulated date. It also ordered the division of superannuation benefits, allocating a base amount to Mr Isherwood and reducing Ms Callins' entitlement accordingly.
The court's orders included a payment to be made by Ms Callins to Mr Isherwood, the transfer of specified properties to Ms Callins, and detailed instructions for the sale of the D Street property if payment was not made. Additionally, the court allocated a base amount from Ms Callins' superannuation to Mr Isherwood and directed the trustee of the superannuation fund to calculate and pay this amount. The orders also included provisions for indemnification and the execution of necessary documents to give effect to the court's decisions.
Orders
Orders of the court
PAC 4521 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ISHERWOOD
Applicant
AND:
MS CALLINS
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
15 DECEMBER 2023
THE COURT ORDERS THAT:
1. By consent, leave is granted to the parties to institute proceedings for alteration of property interests out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth).
2. By no later than 4:00pm on 16 January 2024 the Respondent shall pay to the Applicant the sum of $142,304.
3. Simultaneously with the Respondent’s compliance with Order 2 above the Applicant shall do all such things as are necessary to transfer to the Respondent all of his right, title and interest in the following properties:
(a) B Street, Suburb C (the B Street property”); and
(b) D Street, Suburb C (“the D Street property”).
4. In the event the Respondent does not comply with Order 2 above the parties shall do all things necessary to list the D Street property for sale forthwith as follows:
(a) The D Street property shall be listed for auction with such real estate agent as is agreed between the parties and failing agreement by no later than 4:00pm on 30 January 2024 the real estate agent will be nominated by the President of the Real Estate Institute of New South Wales;
(b) The reserve price of the D Street property shall be such amount as agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer;
(c) The parties shall give such instructions as are necessary to a solicitor or conveyancer to prepare a contract for sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer;
(d) The parties shall agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the D Street property at all times reasonably requested by the agent and auctioneer and ensuring that the D Street property is clean, neat and in good order at the time of any inspection and on the day of the auction;
(e) The sale price of the D Street property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached, the parties must negotiate with the highest bidder and accept any offer which is no more than 10% lower than the reserve price;
(f) That in the event the D Street property is not sold at the public auction as provided for above, the reserve price of the D Street property shall be reduced by 5% at each subsequent auction until such time the D Street property is sold.
(g) That upon agreement being reached for sale of the property parties shall execute the contract of sale and all such other documents necessary and give all such instructions as is required to complete the sale of the D Street property including all transfer documentation forthwith upon its submission to them by the agent, solicitor or conveyancer.
5. The proceeds of sale of the D Street property shall be paid in the following manner and priority:
(a) Discharge of any mortgage encumbering the D Street property;
(b) Payments of the agent’s commission and advertising or other expenses if any, payable on the sale;
(c) Payment of the legal costs and outlays relating to the sale;
(d) In payment of any amount due to the applicant pursuant to Order 2 of these Orders, but not yet paid with interest thereon calculated in accordance with Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 being the rate that is 6 percent above the cash rate last published by the Reserve Bank of Australia before that period commenced; and
(e) The balance thereafter to the Respondent.
6. Orders 6 -10 of these Orders are binding on the trustee of Super Fund 1.
7. A base amount of $27,565 is allocated as required by s.90XT (4) of the Family Law Act 1975 (Cth) to Mr Isherwood out of Ms Callins’ interest in Super Fund 1.
8. In accordance with paragraph 90XT (1) (a) of the Family Law Act 1975 (Cth):
(a) Mr Isherwood is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b) Ms Callins’ entitlement to payments out of their interest in Super Fund 1 and the entitlement of such other person to whom a splitable payment may be payable, is correspondingly reduced by force of this order.
9. The Trustee of Super Fund 1 shall do all such acts and things and sign all documents as may be necessary to:
(a) Calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law Superannuation Regulations 2001, the entitlement created for Mr Isherwood by these court Orders; and
(b) Pay the entitlement whenever the Trustee makes a splitable payment out of Ms Callins’ interest in Super Fund 1.
10. Orders 6 – 10 is to have effect from the operative time and the operative time is four (4) business days after the day of service of these Orders upon the trustee of Super Fund 1.
11. Except as any provision of the paragraphs comprising this Order provide to the contrary:
(a) The Applicant hereby indemnifies the Respondent from and in respect of all actions, claims, suits and demands as may be made against the Applicant in relation to all liabilities in the name of the Applicant or in his name jointly with any other person; and
(b) The Respondent hereby indemnifies the Applicant from and in respect of all actions, claims, suits and demands as may be made against the Respondent in relation to all liabilities in the name of the Respondent or in her name jointly with any other person.
12. That each party shall do all things necessary including providing all consents to give effect to these Orders in the time periods prescribed in these Orders.
13. That save and except for these Orders each party otherwise be solely legally and beneficially entitled, as against the other party, to all property in their sole name, possession or control.
14. In the event that either party fails or neglects to sign any document pursuant to these Orders, a Registrar of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed to execute such documents in the name of the party in default so as to give validity and operation to these Orders pursuant to s 106A of the Family Law Act 1975 (Cth) upon being satisfied of such failure or neglect by way of affidavit evidence.
15. Any application by a party for costs is to be made by way of filing an Application in a Proceeding together with any material to be filed in support thereof by no later than 4:00 pm on 19 January 2024.
16. Save as to the question of costs, all extant applications and responses thereto are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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