LENNAN & LENNAN (No.2) - [2018] FCCA 3132

FEDERAL CIRCUIT COURT OF AUSTRALIA

LENNAN & LENNAN (No.2)

[2018] FCCA 3132

Catchwords:
FAMILY LAW – Property – 12 year marriage – where exact property pool is unknown due to husband’s failure to comply with disclosure obligations – where adverse inference drawn against husband – substantial property adjustment order in favour of wife.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79(4), 106A, 106B

Cases cited:

Harris v Dewell [2018] FamCAFC 94

Stanford v Stanford [2012] 247 CLR 108

Applicant:

MS LENNAN

Respondent:

MR LENNAN

File Number:

BRC 5361 of 2017

Judgment of:

Judge Egan

Hearing date:

20 September 2018

Date of Last Submission:

5 October 2018

Delivered at:

Brisbane

Delivered on:

5 November 2018

REPRESENTATION

Counsel for the Applicant:

Ms Cullen

Solicitors for the Applicant:

Rhonda Sheehy & Associates

Respondent:

Self represented

THE COURT ORDERS ON A FINAL BASIS THAT:

As and by way of property adjustment orders:
(a)The wife be paid the whole of the balance net proceeds of sale, if any, from the sale proceeds of the former matrimonial home situated at Property A in the State of Queensland, such monies to be paid to the Trust Account of Rhonda Sheehy & Associates after payment of the jointly owned/operated business credit card held with Bank 1, the wife’s personal credit card held with Bank 2, all superannuation entitlements owed to the former business staff of Business 1, all monies due and owing to the Australian Taxation Office, and the outstanding school fees for the child [X] (“the child”);
(b)That pursuant to section 106B of the Family Law Act 1975 (Cth), the trust or other instrument executed for the purpose of the establishment of The [X] Discretionary Trust be set aside, and that the wife be paid 50% of the value of the assets (whether liquid or capital) of the Trust, with the nett balance to be paid to the husband
(c)The parties be solely entitled, to the exclusion of the other, to all other property (including superannuation entitlements) and resources in the possession or control of such party, including liabilities attached thereto and any liabilities in their name as at the date hereof, and each is to indemnify the other party against any responsibility therefor.
The husband’s Response and any Amended Response be dismissed.
In the event that either party refuses or neglects to sign (within forty-eight (48) hours of a written request to do so) any documents, or do any act necessary to effect the terms of these Orders, the Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of the defaulting party.
The husband pay the wife’s costs of the proceedings before Her Honour Judge Spelleken on 20 June 2018, such costs to be fixed in the amount of $4,290.00.

IT IS NOTED that publication of this judgment under the pseudonym Lennan & Lennan (No.2) is approved pursuant to s.121(9)(g) of the Family Law…

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 LENNAN & LENNAN (No.2)

Details

AGLC: LENNAN & LENNAN (No.2) [2018] FCCA 3132
Case: [2018] FCCA 3132
Decision Date: 5 November 2018

CaseChat Overview and Summary

In *Lennan & Lennan (No.2)*, the Family Court of Australia considered a property settlement dispute between a husband and wife following a 12-year marriage. The central difficulty in resolving the matter was the husband's persistent failure to comply with his disclosure obligations regarding the extent of the marital property.

The primary legal issue before the Court was how to proceed with the property adjustment when the exact value and composition of the asset pool remained uncertain due to the husband's non-disclosure. This raised questions about the appropriate inferences to be drawn from such conduct and the impact of these inferences on the equitable distribution of property.

Egan J drew an adverse inference against the husband, concluding that his lack of transparency indicated that the undisclosed assets were likely substantial and that he had deliberately concealed them. Applying the principles of equitable distribution in family law, the Court made a substantial property adjustment order in favour of the wife, reflecting the adverse inference drawn from the husband's conduct.

Orders