Massey and Massey and Anor (No. 2)

[2007] FamCA 1280

FAMILY COURT OF AUSTRALIA

MASSEY & MASSEY AND ANOR (NO. 2) [2007] FamCA 1280

FAMILY LAW – PROPERTY – Partial settlement

Family Law Act 1975 (Cth)

APPLICANT: Mrs Massey

RESPONDENT: Mr Massey

INTERVENOR: The Australian Taxation Office

FILE NUMBER: MLF 2141 of 2005

DATE DELIVERED: 25 October  2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 25 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wood

SOLICITOR FOR THE APPLICANT: Garden & Green

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Pearsons Schetzer & Associates

COUNSEL FOR THE INTERVENOR: Mr Thompson

SOLICITOR FOR THE INTERVENOR: ATO Legal Service Branch

ORDERS

1. THAT from the settlement proceeds of the property at M the following distributions be made:

   (a)to the wife a sum of $60,000 paid as a partial settlement of property; and

   (b)to the Intervenor the balance of monies in reduction of the husband’s taxation liability.

2. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

IT IS NOTED that publication of this judgment under the pseudonym Massey & Massey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2141 of 2005

MRS MASSEY

Applicant

And

MR MASSEY

Respondent

And

THE AUSTRALIAN TAXATION OFFICE
Intervenor

REASONS FOR JUDGMENT

1. In the matter of Massey and Massey and the Deputy Commissioner of Taxation of the Commonwealth of Australia an interim issue has arisen for determination at a time prior to the conclusion of this hearing.

2. The husband has caused to be sold a property known as M for $155,000 plus the crop thereon to a value of approximately $45,000 plus an adjustment of rates and taxes. The all‑up sale price is approximately $203,000. In the proceedings before me the Deputy Commissioner of Taxation is the intervenor seeking payment by the husband of a debt in excess of $700,000 plus interest, costs and penalties, inclusive.

3. The property proceedings before the court involve a just and equitable determination and division of property, both real and personal. 

4. The general position of the husband is to retain as much land as is practicable in his sole name. The wife desires a property settlement that is significantly cash or assets but not real property. The intervenor seeks the payment as soon as possible of its entire judgment sum and associated moneys. 

5. This matter is in the second day of hearing and, as it transpires, the settlement of the sale of the M property is scheduled for 11 o'clock tomorrow - that is, prior to the conclusion of this case.  At the commencement of the case and knowing that the M property was due for settlement, the wife initially sought an order whereby 50 per cent of the proceeds would be paid to her on account of partial settlement of property and 50 per cent to the Deputy Commissioner of Taxation. The husband opposed at all times the division and sought for all money to be paid to the intervenor in reduction of his substantial debt.

6. Mr Thompson, as counsel for the intervenor, has taken instructions over the luncheon recess and the position of his client is that they do not oppose any order that might be made whereby the intervenor receives only 75 per cent and otherwise 25 per cent is now paid to the wife on account of her partial property entitlements. 

7. It is common ground that the wife lives in a home at D with the two children of the marriage. I am aware at the time of making this interim order generally of the financial circumstances of the wife and her new husband and of issues of maintenance, child support and the general financial wellbeing of her household. 

8. On the other hand, I am acutely aware of the landholdings of the husband, his substantial debts and his desire to otherwise retain real property and reduce the intervenor's debt. The husband has a crop planted and soon to be harvested on many of his properties. The crop is wheat and barley and the proceeds when harvested will be sold to either the Wheat Board or the Barley Board and that should cause immediate and substantial payments to be received by him in or after December of this year.

9. In the context of this case therefore, the preliminary issue with which I now deal is largely a matter of timing, having regard to the stated position by way of his orders sought of the husband to pay $155,000 in cash to the wife later this year or early in the New Year.

10. A determination is necessary because cheques must be drawn on settlement tomorrow by the independent conveyancing solicitor. What I deem as appropriate and what I will order is that on the settlement of the sale of the M property a sum of $60,000 be paid to the solicitors for the wife on behalf of the wife and the balance be paid to the Deputy Commissioner of Taxation of the Commonwealth of Australia in partial reduction of the outstanding liability of the husband.

11. It does seem to me that this causes little or no financial inconvenience in the bigger picture of this case. What the wife takes is as by way of a partial settlement of property; and, as I will be determining the ultimate orders, I will both know of and will absolutely include that sum in my calculations. 

12. I will make formal orders this afternoon, but presently I request the solicitor for the husband, and if necessary the solicitor for the wife, to convey to the conveyancing solicitor the requirement to have two cheques produced at settlement, or, if not cheques, two bank transfer facilities available, so that the payments, as I outlined above, can be actioned tomorrow. I observe that the sooner the intervenor receives their money, the sooner there will be a reduction in the capital sum upon which interest is paid.

13. I will have these reasons transcribed, placed upon the court file and made available to all parties. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment herein of The Honourable Justice Young

Associate

Date: 25 October 2007