Manichaeus & Manichaeus and ors - [2010] FamCA 397

FAMILY COURT OF AUSTRALIA

MANICHAEUS & MANICHAEUS and ors

[2010] FamCA 397

FAMILY LAW – PROPERTY – Just & equitable division of property between the parties – Special contributions – Treatment of Capital Gains Taxation and Goods & Services Taxation – Orders binding third parties

FAMILY LAW – FINAL ORDERS – Final orders made and supplementary Judgment delivered after primary Judgment and proposed orders – Procedural fairness to third party (Australia & New Zealand Banking Group Limited ABN 11 005 357 522) pursuant to s 90AE(3) & s 90AE(4) of the Family Law Act 1975 (Cth) – Husband to the pay to the wife judgment sum within 14 days – If judgment sum not paid within 14 days, properties of the husband’s corporate group to be sold within stipulated timeframes

Family Law Act 1975 (Cth) ss 75(2), 79(1), 79(2), 79(4), 90AE(1), 90AE(2), 90AE(3), 90AE(4), 90AJ(3)

B Pty Ltd & Ors & K & Anor (2008) FLC ¶93-380
Black & Kellner (1992) FLC ¶92-287
Dawes & Dawes (1990) FLC ¶92-108
Ferraro & Ferraro (1993) FLC ¶92-335
Gallo v Dawson (1990) 93 ALR 479
Harris & Harris (1991) FLC ¶92-254
Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC ¶92-144
JEL & DDF (2001) FLC ¶93-075
Mallet v Mallet (1984) 156 CLR 605
McLay & McLay (1996) FLC ¶92-667
Noetel v Quealey (2005) FLC ¶93,230
Pastern & Pastern [2007] FamCA 620
Rosati & Rosati (1998) FLC ¶92-804
Stay & Stay (1997) FLC ¶92-751
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Weir & Weir (1993) FLC ¶92-338

APPLICANT:

Ms Manichaeus

RESPONDENT:

Mr Manichaeus

SECOND RESPONDENT:

M & L Pty. Ltd.

THIRD RESPONDENT:

Manichaeus Constructions Pty. Ltd.

FOURTH RESPONDENT:

P Street Pty. Ltd.

FILE NUMBER:

CAC

857

2007

DATE DELIVERED:

21 May 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATES:

1 – 3 July 2009

24 July 2009
19 – 21 October 2009
28 & 29 January 2010
24 June 2010
6 July 2010
12 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms A. Tonkin

SOLICITOR FOR THE APPLICANT:

Strong Law Pty. Ltd.

COUNSEL FOR THE RESPONDENT:

Self-represented litigant

SOLICiTOR FOR THE RESPONDENT:

Self-represented litigant

SOLICiTOR FOR THE SECOND

RESPONDENT:

No appearance

SOLICiTOR FOR THE THIRD

RESPONDENT:

No appearance

SOLICiTOR FOR THE FOURTH

RESPONDENT:

No appearance

COUNSEL FOR THE aUSTRALIA & NEW

ZEALAND BANKING GROUP LIMTED

ABN 11 005 357 522 (not a party):

Mr M. Roser

SOLICiTOR FOR THE aUSTRALIA & NEW

ZEALAND BANKING GROUP LIMTED

ABN 11 005 357 522 (NOT A PARTY):

Blake Dawson

Orders

IT IS NOTED THAT:

The husband proposes to transfer a car formally driven by Mr RF, former Corporate Counsel to the Manichaeus Group, to the parties’ eldest son.
Based on the findings of fact in my Judgment of 21 May 2010, with corrections on those facts as accepted by the parties since that time:
a.the total value of the assets of the parties is $17,580,000;
b.the total value of the liabilities of the parties is $13,548,460.15;
c.the total value…

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

AGLC: Manichaeus & Manichaeus and ors [2010] FamCA 397
Case: [2010] FamCA 397
Decision Date: 21 May 2010

CaseChat Overview and Summary

The dispute in *Manichaeus & Manichaeus* concerned the just and equitable division of property between the parties, with particular attention to the treatment of capital gains tax and goods and services tax implications, and the binding effect of orders on third parties. The matter came before the Federal Circuit and Family Court of Australia.

The court was required to determine whether final property settlement orders, and a supplementary judgment delivered after the primary judgment and proposed orders, had been made with procedural fairness to a third party, Australia and New Zealand Banking Group Limited. Further, the court had to consider the implications of an order for the husband to pay a judgment sum to the wife within 14 days, and the consequences if this sum was not paid, including the potential sale of properties belonging to the husband's corporate group within stipulated timeframes.

The court applied principles of family law concerning property division and the finality of orders, while also considering the procedural fairness owed to third parties affected by such orders. The court's reasoning addressed the specific circumstances of the case, including the financial arrangements and the potential impact on the corporate entities.

Ultimately, the court made orders that included the husband paying a judgment sum to the wife within 14 days. If this payment was not made, provisions were made for the sale of properties within the husband's corporate group within specified periods to satisfy the judgment debt.

Orders