KRUGER & KRUGER - [2020] FamCA 670

FAMILY COURT OF AUSTRALIA

KRUGER & KRUGER

[2020] FamCA 670

FAMILY LAW – PROPERTY SETTLEMENT – Applications by the parties for alteration of property interests – where wife seeks orders be made for spousal maintenance and for a departure from a Child Support Assessment so as to increase the child support payable to her by the husband – short marriage of approximately four years – one child of the relationship – where the husband brought almost the entirety of the asset pool into the relationship including a farming property – husband occupied role of being the main income earner – wife assumed primary carer role – assessment of contributions – where both parties made contributions both direct and indirect in differing spheres – consideration of s 75(2) of the Act factors – wife remains primary carer of the child – where wife seeks to establish an equestrian training business in the future – orders made for a division of property – child support departure order made – spousal maintenance order made.

Child Support (Assessment) Act 1989 (Cth) ss 117, 123,
Family Law Act 1975 (Cth) s 75(2)

Bell & Nahos [2016] FamCAFC 244

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPLICANT:

Ms Kruger

RESPONDENT:

Mr Kruger

FILE NUMBER:

MLC

5804

2018

DATE DELIVERED:

20 August 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

3, 4 and 5 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Byrnes

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Combes

SOLICITOR FOR THE RESPONDENT:

Geraldine O’Connell Lawyer & Consultant

Orders

Pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) (‘the CSAA’), the husband pay to the wife periodic child support by way of a departure from the administrative assessment of child support payable by the husband to the wife in respect of the child, and for a two year period from the date of these orders, in the sum of $100 per week, to be paid on a fortnightly basis each Tuesday into the wife’s nominated Commonwealth Bank account ending in …90, such sum to be increased annually on the first day of July each year commencing on 1 July 2021 in accordance with any upward movement in the Consumer Price Index (‘CPI’) (All Groups) referable to Melbourne.
Pursuant to s 123(1)(a) of the CSAA the husband pay or cause to be paid direct to the provider, or in reimbursement to the wife within seven (7) days of the provision of receipts to the husband by the wife, to the wife’s nominated bank account, the following by way of child support in a form other than periodic support for the child:-
(a)from 2021, one half of all education expenses for the child’s attendance at B School in F Town, or such other primary and/or secondary school as agreed between the parties in writing, including but not limited to fees and levies, books, stationery, uniforms, footwear and equipment (including sporting uniforms…

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 KRUGER & KRUGER

Details

AGLC: KRUGER & KRUGER [2020] FamCA 670
Case: [2020] FamCA 670
Decision Date: 20 August 2020

CaseChat Overview and Summary

In the matter of KRUGER & KRUGER, Hartnett J made orders concerning child support, spousal maintenance, and the division of property. The dispute involved the husband and wife, and the court was required to determine the appropriate financial arrangements for their child and for the wife, as well as how their assets should be divided.

The court was tasked with determining the quantum and method of payment for child support, including periodic and non-periodic payments, and the duration for which these payments would be made. Additionally, the court had to consider and order spousal maintenance for the wife and make definitive orders regarding the division of the parties' various assets, including real property, bank accounts, vehicles, and superannuation entitlements.

Hartnett J ordered the husband to pay periodic child support of $100 per week, indexed annually to the CPI, for a period of two years. Further child support was ordered in the form of specific contributions towards the child's education, private health insurance, medical and dental expenses, and extracurricular activities. The husband was also ordered to pay spousal maintenance of $100 per week for 12 months. Crucially, the husband was ordered to pay a lump sum of $344,500 to the wife within 90 days, with a default provision for the sale of the parties' property at G Town if this payment was not made. The net proceeds of the sale were to be applied first to sale costs, then to discharge a mortgage, then to rates and outgoings, then to the wife for the lump sum payment plus interest, with any balance to the husband. The orders also stipulated that each party would retain specific assets to their exclusion, and generally, all other property and liabilities were to be retained by the party in whose name they were registered or in whose possession they were.

Orders

Orders of the court

Pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) (‘the CSAA’), the husband pay to the wife periodic child support by way of a departure from the administrative assessment of child support payable by the husband to the wife in respect of the child, and for a two year period from the date of these orders, in the sum of $100 per week, to be paid on a fortnightly basis each Tuesday into the wife’s nominated Commonwealth Bank account ending in …90, such sum to be increased annually on the first day of July each year commencing on 1 July 2021 in accordance with any upward movement in the Consumer Price Index (‘CPI’) (All Groups) referable to Melbourne.

Pursuant to s 123(1)(a) of the CSAA the husband pay or cause to be paid direct to the provider, or in reimbursement to the wife within seven (7) days of the provision of receipts to the husband by the wife, to the wife’s nominated bank account, the following by way of child support in a form other than periodic support for the child:-

(a) from 2021, one half of all education expenses for the child’s attendance at B School in F Town, or such other primary and/or secondary school as agreed between the parties in writing, including but not limited to fees and levies, books, stationery, uniforms, footwear and equipment (including sporting uniforms and footwear and equipment), camps, excursions and contributions to school building fees and the like;

(b) the entirety of the child’s private health insurance premiums at the current level of cover; and

(d) half of all agreed extracurricular activities.

Child support payable by the husband to the wife pursuant orders 1 and 2 herein be credited as to 100 percent against the child support payable by the husband to the wife under any relevant administrative assessment, reference number …, for the payment of child support for the child for a period of two years from the date of these orders.

The husband pay or cause to be paid to the wife, for the maintenance of the wife, the sum of $100 per week from the date of these orders and for a period of 12 months only.

Within 90 days from the date of these orders (‘the date’) the husband pay to the wife the sum of $344,500 (‘the sum’).

In the event the husband defaults in paying the sum to the wife by the date pursuant to order 5 herein, the husband’s real property situated at R Street, G Town in the State of Victoria, being the whole of the land particularly described in Certificate of Title Volume … Folio … (‘the G Town Property’) forthwith be placed on the market to be sold on terms as agreed between the parties in writing (‘the sale’).

In default of agreement being reached between the parties in writing for the purpose of the sale in accordance with order 6 herein, the G Town Property be sold on the following terms:-

(a) by such real estate agent as agreed between the parties in writing and failing agreement, as recommended by the President of the Real Estate Institute of Victoria, or his or her nominee (‘the agent’);

(b) by auction, or by such other sale method as agreed by the parties and their respective lawyers in writing on the earliest date available to the agent (‘the auction’);

(c) the agent be and is hereby authorised in writing to communicate with each of the parties as to all aspects of the sale, inclusive of all offers received and all feedback from potential purchasers;

(d) at such reserve price agreed by the parties in writing in consultation with the agent, and failing agreement the reserve price be as recommended by the agent;

(e) the parties each be and are hereby restrained from disclosing the reserve price to any third party prior to the reserve being exceeded at auction;

(f) the parties each be and are hereby restrained from selling the property at a lower price than the reserve price, save with the written consent of the other party first obtained;

(g) on an unconditional contract of sale providing for a settlement of no more than 90 days unless otherwise agreed by the parties in writing;

(h) in the event the G Town property is not sold at auction then the property is to remain on the market for private sale thereafter as agreed between the parties; and

(i) liberty to apply in relation to the sale be reserved to each party.

Upon the settlement of the sale, the net proceeds of the sale of the G Town Property be disbursed as follows:-

(a) firstly, in payment of all costs and commissions of the sale;

(b) secondly, in payment of such sum as is required to discharge the registered mortgage in favour of Australia and New Zealand Banking Group Ltd being registered mortgage number … and secured by the G Town property;

(d) fourthly, in payment of the sum, plus interest, calculated in accordance with the Family Law Rules 2004 (Cth) from the date, to the wife; and

(e) fifthly, the balance then remaining to the husband.

The wife otherwise retain to the exclusion of the husband:-

(a) all savings in bank accounts held and/or registered in her sole name;

(b) her motor vehicle 1 with the registration number …;

(d) household contents currently in her possession; and

(e) her entitlement to any superannuation benefits accrued in her sole name.

10.

The husband otherwise retain to the exclusion of the wife:-

(a) all savings in bank accounts held and/or registered in his sole name;

(b) the G Town property;

(d) his motor vehicle 2 with the registration number …);

(e) his white sedan motor vehicle;

(f) his motor vehicle 4 with the registration number …;

(g) his motor vehicle 3;

(h) his motor vehicle equipment;

(i) his T Company shares;

(j) household contents currently in his possession; and

(k) his entitlement to any superannuation benefits accrued in his sole name.

11.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-

(a) each party be solely entitled to the exclusion of the other to all other real and personal property, including choses-in-action and shares, registered in the name of or in possession of such party, or to which that party is legally or beneficially entitled, as at the date of these orders;

(b) monies standing to the credit of the parties in any bank account are to become the property of the party in whose name the account is registered;

(c) each party retain for their sole use and benefit any superannuation or employment related benefits accrued in their sole name;

(d) insurance policies remain the sole property of the owner named therein;

(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

(f) each party be solely responsible for any liability of whatsoever nature and kind in their respective names, including but not limited to any credit card liability, and

(g) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

12.

Otherwise all extant applications are dismissed and the matter is removed from the list of active cases.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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