FAMILY COURT OF AUSTRALIA
| MARLOWE-DAWSON & DAWSON (NO. 2) | [2014] FamCA 599 |
| FAMILY LAW – PROPERTY – Final – Where a period of almost nine years elapsed between final separation and the filing of the wife’s application for property orders – Where the husband has made significant financial contributions post-separation – Where the husband filed an Application to re-open the proceedings given changes to his financial circumstances, in particular, his involuntary retirement – Where the wife seeks an order for 25 per cent of the husband’s net monthly income derived over a future 10 year period – Whether the husband’s income derived from his interest in a partnership constitutes property – Where the Wife seeks orders for spousal, child and adult child maintenance to be paid by way of lump sum. |
| Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) |
| B and B (No 2) (2000) FLC 93-031 Best & Best (1993) FLC 92-418 Brown & Brown (2007) FLC 93-316 Bulleen & Bulleen (2010) 43 Fam LR 489 Clyne v NSW Bar Association (1960) 104 CLR 186 Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 Cosgrove v Cosgrove (1996) FLC 92-700 Cosgrove v Cosgrove (No 2) (1996) FLC 92-701 Dorman v Rodgers & Ors (1982) 148 CLR 365 Federal Commissioner of Taxation v Everett (1980) 143 CLR 440 Ferraro & Ferraro (1993) FLC 92-335 Gollings and Scott (2007) FLC 93-319 Grace v Grace (1998) FLC 92-792 Kennon v Spry (2008) 238 CLR 366 Kowaliw v Kowaliw (1981) FLC 91-092 Martin v Martin (1986) FLC 91-706 McFarlane v McFarlane (2006) UKHL 24 Mitchell & Mitchell (1995) FLC 92-601 Mullane v Mullane (1983) 158 CLR 436 Parlour v Parlour (2004) 3 All ER 921 Perrett & Perrett (1990) FLC 92-101 Rosati v Rosati (1998) FLC 92-804 Stanford v Stanford (2012) 247 CLR 108 W & W (1980) FLC 90-872 |
| APPLICANT: | Ms Marlowe-Dawson |
| RESPONDENT: | Mr Dawson |
| FILE NUMBER: | SYC | 53 | of | 2011 |
| DATE DELIVERED: | 4 August 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 18, 19, 20 and 21 September 2012; by written submissions filed 29 November 2012; and 22 and 23 May 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirk QC |
| SOLICITOR FOR THE APPLICANT: | Hopgood Ganim |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson SC with Ms Black of Counsel assisting on 18, 19, 20 and 21 September 2012 |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Family Lawyers |
Amended on 26 August 2014 pursuant to rule 17.02 of the Family Law Rules 2004
Orders
It is ordered that:
Property Orders
Husband’s Firm K Interests and Retirement Benefits
Upon the Husband receiving each of the payments from Firm K in GBP currency in respect of his Firm K interests or retirement benefits as identified in and referred to in paragraphs 91 and 92 of the Reasons for Judgment delivered on 4 August 2014, net of any loan repayments to Barclays or Firm K as likewise identified, the Husband shall forthwith cause 70 per cent of…
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- Case
- [2014] FamCA 599
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the division of the parties' property, including the distribution of proceeds from the sale of a United Kingdom property, the allocation of specific assets and liabilities, and the determination of spousal and child maintenance obligations. The court needed to consider the financial contributions and needs of each party, as well as the welfare of the children, in making these determinations.
Kent J made detailed property orders, including the sale of a property in S Street, Town P, United Kingdom, with specific provisions for the conduct of the sale, the application of sale proceeds, and the division of net proceeds (70% to the wife, 30% to the husband, with adjustments). The wife was to receive certain properties and assets, while the husband was to retain others. The court also addressed the discharge and refinancing of various mortgages and loans, with indemnities provided between the parties. The wife's application for spousal maintenance was dismissed.
The court ordered the husband to pay adult child maintenance for two children attending full-time tertiary education, with payments adjusted annually by CPI, and to cover health insurance and certain educational expenses. The husband was also ordered to pay child maintenance for a younger child, also subject to CPI adjustments, and to cover specific educational and health-related expenses. The court also made provisions for variations to maintenance orders in certain employment scenarios for the husband.
Orders
Orders of the court
It is ordered that:
Property Orders
Husband’s Firm K Interests and Retirement Benefits
1. Upon the Husband receiving each of the payments from Firm K in GBP currency in respect of his Firm K interests or retirement benefits as identified in and referred to in paragraphs 91 and 92 of the Reasons for Judgment delivered on 4 August 2014, net of any loan repayments to Barclays or Firm K as likewise identified, the Husband shall forthwith cause 70 per cent of the amount of each such payment in GBP currency to be transferred to and credited to the bank account of the Wife nominated by the Wife to the Husband from time to time for this purpose.
Sale of S Street, Town P, United Kingdom (“S Street property”)
2. The parties shall do acts and things and sign all documents necessary to list the S Street property for sale by private treaty for the best price reasonably obtainable.
3. That for the purposes of the sale of the S Street property pursuant to paragraph 2 of these Orders, the husband shall be responsible for the conduct of the sale of the S Street property and:
a. the husband shall within fourteen (14) days nominate three (3) real estate agents to be appointed as the selling agent and the wife shall select one within fourteen (14) days of receipt of the nomination from the husband and if she does not do so, the husband shall select the selling agent and notify the wife;
b. the husband shall within fourteen (14) days nominate three (3) solicitors to be appointed to have the carriage of the sale and the wife shall select one within fourteen (14) days of receipt of the nomination from the husband and if she does not do so, the husband shall select the solicitor and notify the wife;
c. the parties shall sign all documents as required by the selling agent, the solicitor and Natwest to facilitate the sale of the S Street property within fourteen (14) days of receipt of any request from the selling agent, the solicitor and Natwest.
4. That the parties have liberty to apply to the Court as to the mechanics for the sale of the S Street property if the parties are unable to agree on the sale process, the sale price, the marketing campaign or any other matter relating to the sale of the S Street property.
5. That pending the sale of the S Street property, the husband be granted exclusive occupation of the S Street property.
6. That the husband be at liberty to expend up to £50,000 (or such other additional amount to which the wife agrees in writing in advance) to cause the work set out in Annexure “MRW-1” to the affidavit of Mr G filed 21 May 2014 to be effected (or such other work as the wife agrees in writing in advance) to ready the property for sale with such amount to be repaid to the husband from the sale proceeds.
7. On the settlement of the sale of the S Street property, the proceeds of sale be applied in the following order and priority:
a. to pay all costs of sale including agent’s fees, auction expenses and any costs in readying the S Street property for sale or in meeting marketing or agent or advertising fees for the S Street property, including any amount expended as referred to in paragraph 6;
b. the usual adjustments on sale including Council and water rates;
c. to discharge the Natwest mortgage or any other mortgage registered in substitution for the Natwest mortgage;
d. that from the net proceeds of sale of the S Street property if the said sum is of the order of £2,125,000 the sum of £121,227 and AUD $23,092 shall be deposited in the Trust Account of Hopgood Ganim Lawyers on trust for the parties jointly and subject to these Orders, such sum to be invested in an interest bearing account, such sum including interest to be available to pay (and payments shall be made therefrom) of any taxation liability (including capital gains taxation) that arises in respect of either party in the period up to 6 April 2017 under taxation law of Australia and/or the United Kingdom in respect of the sale of the S Street property;
e. should the net sale proceeds be higher or lower than the said sum of £2,125,000 by 5 per cent or more, then the husband shall obtain an updated assessment of his likely taxation liability in the United Kingdom from Firm TT of Cambridge (to be determined on the assumption that he resumes United Kingdom tax resident status before 6 April 2016) and the wife shall obtain an updated assessment of her likely taxation liability in Australia (and if there be a change in legislation in the United Kingdom) from Firm TH of Brisbane and the sum total thereof shall be substituted for the sum referred to above;
f. that should the sum so retained be in excess of the sum required to pay the said taxation liabilities, the surplus, including any accrued interest, shall be divided and paid to the parties in the proportions of 70 per cent to the wife and 30 per cent to the husband and should the sum so retained be insufficient, then the parties shall contribute to the shortfall in the same percentages; and
g. 70 per cent of the net proceeds remaining to be paid to the wife with the balance 30 per cent to be paid to the husband, provided that from the wife’s 70 per cent share there be an adjustment in favour of the husband of the equivalent in GBP of AUD $35,000.
8. That the wife retain and/or receive the following as part of her entitlement to property settlement, with the husband and the wife to do all acts and things and sign all necessary documents to transfer the said interest to the wife:
a. property at V Street, Suburb C, subject to the existing mortgage registered against the property (“the C mortgage”);
b. the property at W Street, Suburb U (“U property”), subject to the mortgage registered against the property (“U mortgage”);
c. the Volvo motor vehicle, subject to any loan referable to the said motor vehicle;
d. the furniture/jewellery and personal effects in the wife’s possession;
e. the contents of the C property;
f. bank accounts in the wife’s sole name;
g. the notional adjustments in respect of the wife’s paid legal fees;
h. the wife’s AMP superannuation; and
i. any other property, superannuation and/or financial resource of the wife wherever situate.
9. On and from 15 September 2014 the wife shall indemnify the husband and keep him indemnified in respect of:
a. the mortgage on the C property;
b. the mortgage on the U property; and
c. the CBA joint personal loan in respect of the Volvo motor vehicle;
pending her receipt of her share of the proceeds of sale of the S Street property as provided for in these Orders and upon her receipt of those proceeds the wife shall do all acts and things reasonably required to discharge or refinance into her sole name those mortgages in order to obtain the husband’s release from liability in respect of those mortgages.
10. The husband shall indemnify the wife and keep her indemnified in respect of the mortgage on the S Street property pending the sale of that property and the husband shall be solely responsible for the outgoings in respect of that property pending its sale.
11. In the event that the wife fails to discharge or refinance any of the loans referred to in paragraph 9 of these Orders into her sole name upon her receipt of her share of the sale proceeds of the S Street property, the wife shall forthwith do all acts and things and sign all documents necessary thereafter to sell the C property, the U property and/or the Volvo motor vehicle and from the said proceeds, discharge any liability affecting the title of same.
12. The parties shall within seven (7) days of the date of these Orders, do all acts and things and sign all documents necessary to:
a. transfer and release to the husband the piano presently in the United Kingdom;
b. close any joint accounts with the Commonwealth Bank of Australia and transfer the balance to the husband; and
c. close any joint accounts with Barclays Bank and transfer the balance to the husband.
13. That except as any paragraph of these Orders provides to the contrary, that the husband retain and/or receive, as part of his property settlement, the following:
a. the United States property;
b. furniture, jewellery and personal effects in the husband’s possession;
c. the contents of the S Street property;
d. the husband’s interest in bank accounts in his sole name in Australia and overseas including under any joint account he has with his current wife;
e. the husband’s entitlement (if any) to financial resources with Friends Life Fund;
f. any other property, superannuation and/or financial resource of the husband wherever situate; and
g. the notional adjustments in respect of the husband’s paid legal fees.
14. That except as these Orders provides to the contrary the wife be solely responsible for and meet payment of all liabilities in the wife’s sole name, including but not limited to the following:
a. personal taxation of the wife in Australia and the United Kingdom; and
b. any credit card in the wife’s sole name, including but not limited to her Visa card with the Commonwealth Bank.
15. That except as these Orders provides to the contrary, the husband is solely responsible for and shall meet as and when they fall due:
a. any personal taxation liability of the husband;
b. Barclays Bank overdraft for the loan and accounts numbers … and …;
c. Barclays Bank off-set loan in relation to the husband’s “A” class shares in Firm K; and
d. the husband’s credit cards.
16. Each party shall do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of these Orders.
17. Except as specifically provided by any paragraph herein to the contrary:
a. the husband hereby indemnifies the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband;
b. the wife hereby indemnifies the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to the liabilities in the name of the wife, including the C mortgage and the U mortgage on and from 15 September 2014; and
c. the husband indemnifies the wife in relation to the S Street property mortgage pending the sale of that property.
18. Except as specifically provided for by any paragraph herein to the contrary, each of the husband and the wife release the other from all debts owing from one to the other.
19. That except as these Orders provide to the contrary, any party receiving the benefit of a transaction under these Orders is to prepare the documentation necessary to give effect to same at their sole cost and further be responsible for the payment of registration fees, duties and/or rates arising in respect of the transfer of the property.
Spousal Maintenance
20. That the wife’s application for spousal maintenance be dismissed.
Adult Child Maintenance
21. That pursuant to s 66L of the Family Law Act 1975 (Cth), in respect of N born … 1994 and B born … 1996 and on the condition that the adult child is attending to full-time tertiary education for their first under-graduate degree or first combined under-graduate degree, the husband shall pay:
a. to the adult child, the amount of $200 per week, said amount to be adjusted annually from 1 January 2015 in accordance with the CPI figure for Brisbane, such adjustment to occur on 1 January each year by comparing the CPI for the quarter ended 30 December immediately prior thereto, with the CPI for the quarter ended 31 December 12 months prior; and
b. the following Medicare or private health insurance in respect of each adult child as and when they fall due:
i. ensure the adult child continues to be covered by the husband’s private health insurance policy;
ii. pay all gap medical expenses for the adult child not able to be recovered under Medicare or private health insurance; and
iii. meet the costs of compulsory student union fees (if any) textbooks and University course material (but for the avoidance of doubt, the husband will not meet the tertiary fees themselves, whether described as tuition fees or HELP/HECS liability for said tertiary institutions).
Child Maintenance
22. That pursuant to s 66G of the Family Law Act 1975 (Cth), that in relation to M born … 1999, the husband shall pay:
a. $500 per week, said amount to be adjusted annually from 1 January 2015 in accordance with the CPI figure for Brisbane, such adjustment to occur on 1 January each year by comparing the CPI for the quarter ended 30 December immediately prior thereto, with the CPI for the quarter ended 31 December 12 months prior;
b. the following as and when they fall due:
i. tuition fees for secondary education;
ii. text books;
iii. school and sports uniforms;
iv. reasonable and prior agreed extra-curricular activities;
v. domestic school excursions, on the basis that they are reasonable and prior agreed;
vi. private health insurance; and
vii. all gap medical expenses not covered by Medicare or private health insurance.
23. In the event the wife pays any of these expenses directly, then the wife will be reimbursed by the husband forthwith upon being provided with a copy of the relevant tax invoice/receipt.
General
24. That the interim Orders dated 2 August 2012 continue to be in force up until 15 September 2014 but on and from that date, be discharged.
25. In the event that the husband fails to obtain employment after 30 September 2014 or obtains employment after 30 September 2014 or becomes a member of a firm at a remuneration package less than he enjoyed whilst posted to Asian city 2 with Firm K, then either party shall have liberty to apply to vary the Orders with respect to adult child maintenance and child maintenance if they are otherwise unable to agree to any proposed variation.
26. That in the event that a party refuses or neglects to sign any document, instrument or deed required to give effect to any of these Orders within fourteen (14) days of receipt of a request to sign the documents, instrument or deed the other party may apply pursuant to s 106A of the Family Law Act 1975 (Cth) to a Registrar of this Court to sign the document, instrument or deed.
NOTATION: This Order has been amended pursuant to rule 17.02 of the Family Law Rules 2004 by the inclusion of paragraph (1) and the re-numbering of the paragraphs therein.
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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