MATTHEWS & NORRIS - [2020] FamCA 547

FAMILY COURT OF AUSTRALIA

MATTHEWS & NORRIS

[2020] FamCA 547

FAMILY LAW – PROPERTY – Application for adjustment of interests in matrimonial property – Where it is just and equitable to make an adjustment – Where s 79(4) factors favour the husband – Where the husband provided the majority of funds for the parties’ first home – Where the husband, on sale of such property, utilised these funds for the benefit of the parties’ relationship – Where the wife resigned from the parties’ company and left the husband as sole director with a large number of debts to manage and provided no assistance – Where the wife, by choice, was made bankrupt – Where the s 75(2) factors favour the husband – Where the husband is the sole carer of the parties’ child and will receive little to no child support from the wife – Where the wife refused to provide full and frank financial disclosure – Where, as a result, the Court cannot arrive at a fully informed conclusion – Ordered that the husband retain the remaining Australian assets and liabilities with a cash adjustment to him by the wife – Where this division is as just and equitable as possible given the circumstances of the wife failing to meet her disclosure obligations.

FAMILY LAW – PARENTING – Where the mother seeks to vary final parenting orders made in 2017 – Where the child lives with the father and spends time with the mother at the father’s discretion – Consideration of Rice v Asplund (1979) FLC 90-725 principles – Where there is no credible evidence of a change in circumstances or some new factor arising since final orders were made – Application dismissed.

Family Law Act 1975 (Cth) ss 75, 79.

Bevan & Bevan [2013] FLC 93-545

Stanford & Stanford (2012) 247 CLR 108
Rice v Asplund (1979) FLC 90-725
Matthews & Norris (No. 3) [2018] FamCA 803

APPLICANT:

Mr Matthews

RESPONDENT:

Ms Norris

FILE NUMBER:

NCC

2226

2015

DATE DELIVERED:

9 July 2020

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

8 -9; 14-15 August: 1 October: 20 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carty

SOLICITOR FOR THE APPLICANT:

Oliver Campbell Heslop

COUNSEL FOR THE RESPONDENT:

Not Applicable

THE RESPONDENT:

Self-Represented

Orders

Property

That within 28 days of these orders the wife shall pay to the husband or as he directs the sum of $589,178.
That within seven (7) days of the date of these orders the wife shall do all such acts and things and sign all necessary documents so as to transfer to the husband her twelve (12) ordinary shares in Matthews Pty Ltd (ACN …).
That the husband is declared the sole legal and beneficial owner of the balance of the net proceeds from the sale of the property situate at O Street, P Town, being the whole of the land in folio identifier … (“the P Town property”) and the balance of the net proceeds of…

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: MATTHEWS & NORRIS [2020] FamCA 547
Case: [2020] FamCA 547
Decision Date: 9 July 2020

CaseChat Overview and Summary

In a family law matter before Cleary J, the husband and wife disputed the division of their matrimonial property and sought variation of existing parenting orders. The property dispute involved the husband's assertion that he had provided the majority of funds for the parties' first home, which were subsequently used for the benefit of the relationship. The wife had resigned from the parties' company, leaving the husband as sole director to manage significant debts, and had been made bankrupt by choice. Furthermore, the wife had allegedly failed to provide full and frank financial disclosure, hindering the court's ability to reach a fully informed conclusion. In relation to parenting, the wife sought to vary final orders made in 2017, under which the child resided with the father and had limited, discretionary time with the mother.

The court was required to determine whether it was just and equitable to make an adjustment to the parties' interests in their matrimonial property, considering the factors outlined in section 79(4) of the *Family Law Act 1975* (Cth). Additionally, the court had to assess whether the factors under section 75(2) of the Act favoured either party in the property adjustment. In the parenting matter, the court needed to consider whether there was a credible change in circumstances or a new factor arising since the final parenting orders were made in 2017, applying the principles established in *Rice v Asplund*.

Regarding the property division, Cleary J found that the section 79(4) factors favoured the husband, particularly given his significant financial contributions to the initial property acquisition and his subsequent management of company debts after the wife's departure. The court also considered the section 75(2) factors to favour the husband, noting his role as the sole carer of the parties' child and the wife's limited capacity to provide child support. The wife's failure to provide full and frank financial disclosure was a significant impediment to a comprehensive assessment, leading the court to conclude that the division would be as just and equitable as possible under the circumstances. In the parenting proceedings, the court found no credible evidence of a change in circumstances or new factors since the 2017 final orders were made, and therefore dismissed the wife's application for variation.

Consequently, the court ordered that the husband retain the remaining Australian assets and liabilities, with a cash adjustment to be paid by the wife to the husband. The wife was ordered to pay the husband a sum of $589,178 and transfer her shares in Matthews Pty Ltd to him. The husband was declared the sole legal and beneficial owner of the net proceeds from the sale of the P Town and Suburb F properties. The court also made detailed orders regarding the division of the parties' superannuation interests, with the husband to receive 100 per cent of the wife's member account. The wife was also required to resign as a director and member of the Trustee and the Fund, and transfer her shares in the Trustee to the husband. The wife's application to vary the parenting orders was dismissed.

Orders

Orders of the court

Property

That within 28 days of these orders the wife shall pay to the husband or as he directs the sum of $589,178.

That within seven (7) days of the date of these orders the wife shall do all such acts and things and sign all necessary documents so as to transfer to the husband her twelve (12) ordinary shares in Matthews Pty Ltd (ACN …).

That the husband is declared the sole legal and beneficial owner of the balance of the net proceeds from the sale of the property situate at O Street, P Town, being the whole of the land in folio identifier … (“the P Town property”) and the balance of the net proceeds of sale of the property situate at E Street, Suburb F, being the whole of the land in folio identifier … (“the Suburb F property”) currently held in the trust account of Oliver Campbell Heslop Solicitors and that such monies be released to the husband forthwith for him to use at his discretion.

That forthwith upon the making of these orders, the husband and the wife in their roles as directors of N Pty Ltd (ACN …) (“the Trustee”) as trustee for the Matthews Superannuation Fund (“the Fund”) do all acts and things and sign all documents necessary to cause DD Group Chartered Accountants of Suburb EE NSW, to calculate the value of the Fund, net of any taxation liabilities and accounting fees.

That the husband and the wife in their roles as directors of the Trustee shall do all necessary acts and things, sign all documents and give all consents necessary to give force and effect to Orders 6 to 10 hereof.

Orders 5 and 7 to 10 (inclusive) are binding on the Trustee of the Fund.

The amount allocated to the husband out of the interest of the wife in the fund is a base amount being 100 per cent of the member account of the wife in the fund as determined in accordance with Order 4.

That pursuant to s 90MT(1)(b) of the Act whenever a splittable payment becomes payable in respect of the interest of the said wife in the fund the husband shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount and that there be a corresponding reduction in the entitlement of the wife to whom the splittable payment would have become payable but for these orders.

That Order 8 has effect from the operative time.

10.

That the operative time for the purpose of Order 8 is four (4) business days from the date of service of these orders upon the Trustee of the Fund.

11.

That there be liberty to apply to each party and the Trustee in relation to the implementation of the orders affecting the superannuation interest in the fund.

12.

That upon the payment split in Order 8 the wife shall do all acts and things and execute all documents necessary to:

12.1 Tender her resignation as a director of the Trustee;

12.2 Transfer to the husband her shares in the Trustee; and

12.3 Resign as a member of the Fund.

13.

That unless otherwise specified in these orders, and save for the purposes of enforcing any monies due under these or any subsequent orders:

13.1 Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind and wheresoever located in the possession of such party at the time of making these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record hereof, and superannuation and insurance policies are deemed to be in the possession of the owner thereof;

13.2 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.

14.

That the husband and the wife do all acts and things and give all consent and execute all documents and writings necessary to give effect to the orders made herein.

15.

That in the event that either party refuses or neglects to execute any deed or instrument the registrar of the Court is appointed pursuant to s 106A of the Act to execute such deed or instrument in the name of such party and to do all such acts and things necessary to give validity to the operation of the deed or instrument.

16.

That the Fourth Amended Application of the husband filed 1 March 2019 is otherwise dismissed.

17.

That the application (Property and Spouse Maintenance) contained in the Further Amended Response of the wife filed 13 March 2019 is dismissed.

18.

That these orders be registered in New Zealand pursuant to s 56 of the Trans-Tasman Proceeding Act 2010 (NZ).

Parenting

19.

The application (Parenting) [Orders 1-15] contained in the Further Amended Response of the wife filed 13 March 2019 is dismissed.

Provision of Orders and Reasons

20.

A copy of these orders and reasons shall be provided by a registrar of this Court to a registrar of the Family Court of New Zealand in City BB.

Costs

21.

Any application for costs is to be filed within 28 days of the date of these orders.

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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