FEDERAL CIRCUIT COURT OF AUSTRALIA
| JAMESON & NEALE | [2017] FCCA 3006 |
| Catchwords: CHILD SUPPORT – Applicable principles – power of court to grant departure order – relevant criteria – consideration of what may constitute special circumstances – sub-s 117(2) grounds not made out – power not engaged as criteria not satisfied – child maintenance application dismissed. SPOUSAL MAINTENANCE – Respondent seeks spousal maintenance – relevance of alteration of property interests upon application – requirement of para 90SF(2)(b) that the applicant for spousal maintenance demonstrate an inability to support herself adequately – whether, by reason of orders adjusting property interests, this could no longer be established – whether, by reason of those orders, respondent to application for spousal maintenance was no longer reasonably able to do so – threshold criteria in paras 90SF(1)(a)-(b) not satisfied – finality of relief – spousal maintenance application dismissed. |
| Legislation: Child Support (Assessment) Act1989 (Cth), ss.3, 4, 5, 99, 114, 115, 116, 117, 118, 121, 123, 124 |
| Cases cited: Aleksovski & Aleksovski (1996) FLC 92-705 |
Continue reading JAMESON & NEALE
Sign in free to access the full text
- AGLC
- JAMESON & NEALE [2017] FCCA 3006
- Case
- [2017] FCCA 3006
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the just and equitable division of the parties' property interests. Specifically, it needed to assess whether the criteria for granting a departure order in relation to child support were met, and whether the respondent had demonstrated an inability to adequately support herself, either by reason of the property adjustment orders or otherwise, to satisfy the threshold for spousal maintenance.
In its reasoning, the court found that the grounds for a departure order under the Child Support (Assessment) Act 1989 (Cth) were not made out, thus dismissing the child maintenance application. Similarly, the court determined that the threshold criteria for spousal maintenance, as set out in paragraph 90SF(1)(a)-(b) of the relevant legislation, were not satisfied, leading to the dismissal of the respondent's spousal maintenance application. The court concluded that an alteration of property interests was just and equitable, and ordered an asset pool split of 38% in favour of the applicant and 62% in favour of the respondent, with specific orders detailing the retention of various assets by each party and the division of net proceeds from property sales.
Orders
Orders of the court
1.
The applicant shall retain the following property:
(a) any amount standing to the credit of his bank accounts including, without limitation, all amounts earned in the conduct of the business, ‘(omitted business)’ that have been deposited to such accounts;
(b) his Ford (omitted) motor vehicle;
(c) his boat and trailer;
(d) the parties’ interest in the (omitted) time-share resort;
(e) his superannuation;
(f) all of the assets and undertaking comprised in the business ‘(omitted business)’ including, without limitation, the tools of trade, (omitted) employed in that business;
(g) the interim distribution of $30,000 paid pursuant to the consent order made on 26 April 2016 (as amended on 7 July 2016);
(h) his (omitted) Bank credit cards (omitted);
(i) the shares held in (omitted);
(j) his personal effects and any chattels in his possession.
2.
IT IS DECLARED THAT the value of the personal property referred to in paragraph (1) of this order is $193,578.
3.
The respondent shall retain the following property:
(a) any amount standing to the credit of her bank accounts including, without limitation, the amount paid to the respondent in settlement of her claim for damages;
(b) her Ford (omitted) motor vehicle;
(c) her superannuation;
(d) the interim distribution of $60,000 paid pursuant to the consent order made on 26 April 2016 (as amended on 7 July 2016);
(e) the amount standing to the credit of the parties’ (omitted) Bank offset account (omitted) ((omitted) Bank offset account);
(f) her personal effects and any chattels in her possession.
4.
IT IS DECLARED THAT the value of the personal property referred to in paragraph (3) of this order is $321,637.
5.
Subject to paragraphs (6) – (9) of this order, the amount (inclusive of interest), standing to the credit of the controlled moneys account held by the solicitor for the respondent, together with the said sums of $193,578 and $321,637 be divided so as to effect an overall division of the parties’ property as to:
(a) 38 per centum, to the applicant, and;
(b) 62 per centum, to the respondent.
6.
By 4.00pm on 12 January 2018, the applicant deliver to the respondent any necessary instrument so as to transfer his interest in the amount standing to the credit of the (omitted) Bank offset account.
7.
By 4.00pm on 12 January 2018, the respondent deliver to the applicant:
(a) a duly executed instrument of transfer to the applicant (or his nominee) of her interest in all of the assets and undertaking comprised in the business, ‘(omitted business)’;
(b) a duly executed instrument of transfer to the applicant (or his nominee) of her shares in (business omitted) [ACN (omitted)];
(c) a duly executed instrument relinquishing her office as director and secretary of (business omitted);
(d) a duly executed instrument relinquishing her interest in the trust styled the (omitted) Family Trust;
(e) a duly executed instrument relinquishing her office as trustee of the (omitted) Family Trust;
(f) a duly executed instrument relinquishing her interest in the (country omitted) time-share resort.
8.
Delivery of all instruments pursuant to paragraphs (6) and (7) of this order be effected by exchange of those respective instruments.
9.
Contemporaneously with exchange of the instruments pursuant to paragraph (8) of this order, the amount standing to the credit of the said controlled moneys account be divided and paid in the proportions necessary to give effect to paragraph (5) of this order.
10.
Save for the purposes of enforcing any orders made above:
(a) each party is solely entitled, to the exclusion of the other, to all and any other property in the possession of such party as at the date of this order;
(b) each party foregoes any claims that they may have as to any superannuation, compensation, insurance, employment or any other benefits belonging to, earned or receivable by the other;
(c) all insurance policies remain the sole property of the named owner;
(d) subject to paragraph (e) below, each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party may be entitled pursuant to this order, and in respect of any other liability that may be incurred in their name;
(e) paragraph (10)(d) of this order shall not extend or operate so as to confer indemnity upon either party respecting their liability (if any) upon any assessment (or re-assessment) of income tax, interest or penalties payable upon income derived from the conduct of the undertakings comprised in the business ‘(omitted business)’, the company (business omitted) or the trust styled the (omitted) Family Trust in any year of income up to 30 June 2016, whether pursuant to the Income Tax Assessment Act 1936 (Cth), the Tax Administration Act 1953 (Cth), the Trust Recoupment Tax Assessment Act 1985 (Cth) or otherwise;
(f) any joint tenancy of the parties in any real or personal property is severed.
11.
The parties do and abstain from doing all such acts and things (as the case requires), and sign all necessary instruments and documents as may be reasonably necessary so as to give effect to these orders.
12.
Notwithstanding paragraph (11) above, and the court considering it necessary to exercise the powers of the court under s 106A(1) of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit Court of Australia is appointed, in default of the performance or observance of the obligations in paragraphs (5)-(9) and (11) above, to execute any documents in the name of the parties or either of them and do all acts and things necessary so as to give validity and operation to this order.
13.
The respondent’s application for spousal maintenance be dismissed.
14.
The respondent’s application for:
(a) a departure order pursuant to Division 4, Part 7 of the Child Support (Assessment) Act 1989 (Cth) be dismissed;
(b) a substitution order pursuant to Division 5, Part 7 of the Child Support (Assessment) Act 1989 (Cth) be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.