MEREDITH & ALLEN - [2014] FamCA 376

FAMILY COURT OF AUSTRALIA

MEREDITH & ALLEN

[2014] FamCA 376

FAMILY LAW – PROPERTY – consideration of the assets and liabilities of the parties – the use of monies received by the wife – contributions and s79(4)(d)-(g) matters – determination of what was a just and equitable property settlement

FAMILY LAW – CHILD MAINTENANCE – adult child maintenance – physical disability – where lump sum adult child maintenance sought – where orders made for periodic payments of adult child maintenance

Family Law Act 1975 (Cth)

Bevan and Bevan (1995) FLC 92-600

APPLICANT:

Mr Meredith

RESPONDENT:

Ms Allen

FILE NUMBER:

SYC

6886

2008

DATE DELIVERED:

6 June 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

3 - 4 December 2013; 23 December 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Mr Richards

SOLICITOR FOR THE RESPONDENT:

Coleman & Greig

Orders

Pursuant to s 79 Family Law Act 1975 (Cth) (“the Act”) an order be made in accordance with paragraphs 2 to 15 below.
Within 42 days, the husband shall do all such things as may be necessary to:
2.1.Withdraw the caveat lodged by the husband and registered against the Suburb S property; and
2.2.Discharge the mortgage to St George Bank Limited secured against the Suburb S property; and
2.3.Pay to the wife the sum of $256,144.
Simultaneously with the husband’s compliance with order 2, the wife do all acts and things and sign and execute all documents necessary to transfer to the husband any right, title and interest which she may have in the property situated at and known as E Street, Suburb S in the State of New South Wales being all of the land comprised on Folio Identifiers … (“the Suburb S property”) and the wife transfer to the husband any right, title and interest in the bond held by Suburb S Municipal Council. The husband is to be responsible for the payment of stamp duty (if any) in respect of the transfer of the Suburb S property.
In the event the husband fails to comply with order 3 hereof within 42 days of the date of these orders the wife shall do all such things as may be necessary to list the Suburb S property for sale by auction and to sell the Suburb S property for the best price reasonably obtainable and upon the following terms and conditions:
4.1.The auction shall take place within six weeks after 42 days from the date of these orders or as soon as practicable, whichever is the later.
4.2.The wife shall attend at the auction and in the event that the Suburb S property is passed in the wife shall negotiate with the highest bidder and shall accept any offer to purchase the Suburb S property at no less than 90 per cent of the reserve price.
4.3.In the event that the Suburb S property does not sell at auction or does not sell by private treaty within two…

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: MEREDITH & ALLEN [2014] FamCA 376
Case: [2014] FamCA 376
Decision Date: 6 June 2014

CaseChat Overview and Summary

This matter concerned property settlement and child maintenance proceedings between the husband and wife. The primary dispute revolved around the division of assets and liabilities, including a property located at E Street, Suburb S, and various business interests and superannuation funds. The court was also required to determine an application for adult child maintenance.

The legal issues before the court included the just and equitable distribution of the parties' property under section 79 of the *Family Law Act 1975* (Cth), considering their respective contributions and other relevant matters under section 79(4)(d)-(g). Additionally, the court had to consider the husband's obligation to pay adult child maintenance for their child, B, who had a physical disability, and whether this should be a lump sum or periodic payment.

Watts J ordered that the husband pay the wife $256,144 within 42 days, and simultaneously, the wife was to transfer her interest in the Suburb S property and a council bond to the husband. If the husband failed to comply, the wife was authorised to sell the Suburb S property, with proceeds to be distributed in a specified order, including payment of outstanding loans, agent commissions, legal costs, and a percentage to the wife, with the balance to the husband. The husband was to be solely responsible for mortgage repayments and outgoings on the Suburb S property pending its sale and was restrained from bidding at auction. The court also made orders regarding the division of various company interests and superannuation funds, with each party indemnifying the other for liabilities associated with the assets retained. Finally, the husband was ordered to pay $199 per week by way of adult child maintenance for B, with arrears to be charged against the Suburb S property.

Orders

Orders of the court

Pursuant to s 79 Family Law Act 1975 (Cth) (“the Act”) an order be made in accordance with paragraphs 2 to 15 below.

Within 42 days, the husband shall do all such things as may be necessary to:

2.1. Withdraw the caveat lodged by the husband and registered against the Suburb S property; and

2.2. Discharge the mortgage to St George Bank Limited secured against the Suburb S property; and

2.3. Pay to the wife the sum of $256,144.

Simultaneously with the husband’s compliance with order 2, the wife do all acts and things and sign and execute all documents necessary to transfer to the husband any right, title and interest which she may have in the property situated at and known as E Street, Suburb S in the State of New South Wales being all of the land comprised on Folio Identifiers … (“the Suburb S property”) and the wife transfer to the husband any right, title and interest in the bond held by Suburb S Municipal Council. The husband is to be responsible for the payment of stamp duty (if any) in respect of the transfer of the Suburb S property.

In the event the husband fails to comply with order 3 hereof within 42 days of the date of these orders the wife shall do all such things as may be necessary to list the Suburb S property for sale by auction and to sell the Suburb S property for the best price reasonably obtainable and upon the following terms and conditions:

4.1. The auction shall take place within six weeks after 42 days from the date of these orders or as soon as practicable, whichever is the later.

4.2. The wife shall attend at the auction and in the event that the Suburb S property is passed in the wife shall negotiate with the highest bidder and shall accept any offer to purchase the Suburb S property at no less than 90 per cent of the reserve price.

4.3. In the event that the Suburb S property does not sell at auction or does not sell by private treaty within two weeks after the date of the auction then the wife shall relist the Suburb S property for sale by auction at intervals of no more than six weeks upon the same terms and conditions as set out herein until the Suburb S property is sold.

Upon the Suburb S property being sold at auction the wife shall distribute the proceeds of such sale as follows:

5.1. In payment of real estate agent’s commission and expenses on the sale;

5.2. In payment of property legal costs and disbursements of each of the parties of and incidental to the sale;

5.3. Payment of an amount to St George Bank Limited in respect of loans secured over the Suburb S property in an amount calculated to be sufficient to extinguish those loans had all regular payments been made to the date of settlement in respect of those loans;

5.4. Payment to the wife of 45 per cent of the remaining balance;

5.5. Payment of all arrears of the mortgage to St George Bank Ltd;

5.6. In adjustment of rates, levies and taxes on the Suburb S property so that all outgoings are paid to the date of settlement;

5.7. Payment to the wife of any arrears of adult child maintenance for B;

5.8. In payment of the balance then remaining to the husband; and

the husband shall simultaneously withdraw the caveat registered by him against the Suburb S property and the parties do all things and sign all necessary documents to release the bond held by Suburb

S Municipal Council in relation to the Suburb S property to the husband.

Pending the sale of the Suburb S property pursuant to orders 4 and 5 hereof the husband shall:

6.1. Be solely responsible for all regular mortgage repayments and all regular payments on any loans secured against the Suburb S property, rates, taxes and other outgoings associated with the Suburb S property and the husband shall indemnify the wife and keep her indemnified with respect to all such mortgage repayments, rates, taxes and outgoings and any arrears of these liabilities pending the sale of the Suburb S property;

6.2. Vacate and shall cause any other occupants to vacate the Suburb S property at a date agreed in writing between the parties and failing agreement, no later than two weeks prior to any proposed date of settlement of the sale of the Suburb S property, leaving the property in its current state of repair and condition;

6.3. Do all such things and sign all such documents as may be necessary to facilitate the sale of the Suburb S property by the wife within seven days of receiving a request from the wife to do such things or sign such documents including but not limited to:

6.3.1. Facilitate the discharge of the mortgage to St George Bank Limited secured against the Suburb S property;

6.3.2. Causing the caveat registered by the husband against the Suburb S property to be withdrawn, at the husband’s expense.

6.4. Be and is hereby restrained from placing a bid at the auction of the Suburb S property.

The husband shall forthwith relinquish any right title and interest in the following, including but not limited to payment of any dividends:

7.1. Meredith Pty Limited ACN …; and

7.2. A Pty Limited ACN …

and the wife shall simultaneously indemnify the husband and keep him indemnified in relation to all liabilities whatsoever and howsoever arising with respect to the above named entities.

The husband and the wife forthwith shall do all things and sign all such documents as may be necessary to resign as a trustee from the Meredith Superannuation Fund, furthermore the wife shall relinquish any right, title and interest to Meredith Superannuation Fund (the Fund) or its accumulated balance and the wife shall do all things and sign all such documents as may be necessary to facilitate the transfer of Lot 1 SP No. …5. The husband is to indemnify the wife in relation to any taxes or stamp duty (if any) owed by the Fund or arising from this order.

Pursuant to s 90MT(1)(b) of the Act, whenever a splittable payment becomes payable in respect of the interest held by the wife in the Meredith Superannuation Fund, the husband shall be entitled to be paid 100 per cent of that splittable payment and that there be a corresponding reduction to the entitlement the wife would have received in the Meredith Superannuation Fund but for this order.

10.

The husband and wife shall do all such acts and things and sign all documents as may be necessary to give effect to the preceding order.

11.

The orders in relation to superannuation are to have effect from the operative time, being the date of these orders.

12.

The wife forthwith shall relinquish any right, title and interest in the husband’s interest in the following:

12.1. H Pty Limited ACN …;

12.2. P Pty Limited ACN …;

12.3. Q Pty Limited ACN …;

12.4. R Pty Limited ACN …;

12.5. T Limited ACN …;

12.6. Meredith Family Trust; and

12.7. Meredith Family Trust No. 2

and the husband shall simultaneously indemnify the wife and keep her indemnified in relation to all liabilities whatsoever and howsoever arising with respect to the above named entities.

13.

Each party do all things and sign all necessary documents to cause any company or entity they control to release the other party from any liability which that other party owes that company or entity and each party will indemnify the other in respect of any debt the other party allegedly owes any company or entity which is controlled by that party.

14.

Subject to these orders, each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.

15.

Each party do all things and sign all necessary documents to give effect to these orders.

16.

If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

17.

Either party have liberty on 14 days notice to make application for an order implementing these orders.

18.

Pursuant to s 66G Family Law Act 1975 the husband shall pay to the wife by way of adult child maintenance in respect of the child B born … 1995 the sum of $199 per week, the first such sum payable from 1 January 2014 and any arrears shall be charged against the Suburb S property.

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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