Milley and Milley - [2011] FamCA 33

FAMILY COURT OF AUSTRALIA

MILLEY & MILLEY

[2011] FamCA 33

FAMILY LAW – PROPERTY – Add-backs in relation to each party seizing large sums of money at separation – Liabilities of the wife – Contributions and other factors

Family Law Act 1975 (Cth) s 75(2)

Kennon v Kennon (1997) FLC 92-757
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Essex and Essex [2009] FamCAFC 236
Townsend v Townsend (1995) FLC 92-569

APPLICANT:

Ms Milley

RESPONDENT:

Mr Milley

INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

FILE NUMBER:

SYC

845

2008

DATE DELIVERED:

24 January 2011

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

13, 14, 15 & 16 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Cowen

SOLICITOR FOR THE APPLICANT:

H A Miedzinski

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

McGrath Dicembre & Company

Orders

The husband shall pay to the wife the sum of $870,485 and such payment shall be made as follows:-
a.BY CONSENT the sum of $25,000.00 on or before 20 December 2010.
b.BY CONSENT the sum of $25,000.00 on or before 20 January 2011.
c.The balance on or before 20 April 2011.
d.From the sum payable to the wife, she shall pay such monies as may be outstanding by her for the Court experts, namely Dr R, and M Chartered Accountants.
In the event the husband fails to pay the specified sum on the specified date then interest shall accrue from the date of default until the date of payment, such interest to be calculated at the rate set under the Rules of Court.
Upon the whole of the payments being made in accordance with Order 1, together with interest if any, the wife shall transfer to the husband her interest in the following properties:-
a.B property
b.C property
c.K property
d.O property
e.L property.
The husband shall indemnify and keep indemnified the wife in respect of all mortgage payments, rates, taxes and all other outgoings in respect of B, C, K O and L properties and shall cause any personal covenants of the wife in respect of any mortgage in respect of such properties to be released on or before 20 April 2011.
The husband shall indemnify and keep indemnified the wife in respect of the Westpac Banking Corporation line of Credit and shall cause any personal covenants of the wife in respect of the line of credit and underlying mortgage to be released on or before 20 April 2011.
In the event the husband fails or neglects to pay the sums referred to in Order 1, and any accrued interest, by 20 April 2011, then the parties shall do all acts and things necessary to sell K property and in respect of such sale the following shall apply:-
a.The parties shall forthwith upon the default of the husband place the property in the hands of a licensed auctioneer to sell the property by way of public auction with a reserve…

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.

Continue reading Milley and Milley

Details

AGLC: Milley and Milley [2011] FamCA 33
Case: [2011] FamCA 33
Decision Date: 24 January 2011

CaseChat Overview and Summary

This matter concerned orders made by Benjamin J in the Federal Circuit Court of Australia between a husband and wife. The dispute involved the division of property and financial obligations between the parties.

The court was required to determine the terms of the property settlement, including the payment of a significant sum by the husband to the wife, the transfer of various properties, and the indemnification of the wife from certain financial liabilities. The court also had to address the consequences of the husband's potential default in making the required payments, including the sale of specific properties to satisfy the wife's entitlements. Further issues included the allocation of ownership of personal property, business interests, and superannuation, as well as the husband's contribution to the wife's tax liabilities arising from jointly owned rental properties.

Benjamin J ordered that the husband pay the wife a total of $870,485, with specific instalment dates and a final payment deadline. Upon full payment, the wife was to transfer her interest in several properties to the husband. The husband was also ordered to indemnify the wife against all mortgage payments, rates, taxes, and other outgoings for these properties, and to secure the release of her personal covenants from any associated mortgages. In the event of the husband's default in payment by the specified date, the K property was to be sold by public auction, with the proceeds applied first to sale costs, then any mortgage, then the outstanding amount due to the wife, and finally any balance to the husband. If the proceeds from the sale of the K property were insufficient, other properties were to be sold sequentially until the wife's entitlement was fully satisfied. The court also declared the sole beneficial ownership of various assets, including motor vehicles, business interests, and personalty, to each party. The husband was further ordered to pay half of the tax accrued by the wife on rental income from the K and O properties between July 2008 and June 2010, calculated at her higher tax rate, provided the wife lodged her tax returns by a specified date. Finally, all income and liabilities related to the K and O properties from July 2010 were declared to be the husband's responsibility.

Orders

Orders of the court

The husband shall pay to the wife the sum of $870,485 and such payment shall be made as follows:-

a. BY CONSENT the sum of $25,000.00 on or before 20 December 2010.

b. BY CONSENT the sum of $25,000.00 on or before 20 January 2011.

c. The balance on or before 20 April 2011.

d. From the sum payable to the wife, she shall pay such monies as may be outstanding by her for the Court experts, namely Dr R, and M Chartered Accountants.

In the event the husband fails to pay the specified sum on the specified date then interest shall accrue from the date of default until the date of payment, such interest to be calculated at the rate set under the Rules of Court.

Upon the whole of the payments being made in accordance with Order 1, together with interest if any, the wife shall transfer to the husband her interest in the following properties:-

a. B property

b. C property

c. K property

d. O property

e. L property.

The husband shall indemnify and keep indemnified the wife in respect of all mortgage payments, rates, taxes and all other outgoings in respect of B, C, K O and L properties and shall cause any personal covenants of the wife in respect of any mortgage in respect of such properties to be released on or before 20 April 2011.

The husband shall indemnify and keep indemnified the wife in respect of the Westpac Banking Corporation line of Credit and shall cause any personal covenants of the wife in respect of the line of credit and underlying mortgage to be released on or before 20 April 2011.

In the event the husband fails or neglects to pay the sums referred to in Order 1, and any accrued interest, by 20 April 2011, then the parties shall do all acts and things necessary to sell K property and in respect of such sale the following shall apply:-

a. The parties shall forthwith upon the default of the husband place the property in the hands of a licensed auctioneer to sell the property by way of public auction with a reserve price agreed to by the parties.

b. The proceeds of sale shall be applied as follows:-

i. In payment of agents commission, legal fees occasioned by the sale and outstanding rates and taxes.

ii. In payment of any mortgage secured over K property.

iii. In payment to the wife of such sum as is outstanding from Order 1, plus any accrued interest. From such amount payable the wife, she shall pay such monies as may be outstanding by her for the Court experts, namely Dr R, and M Chartered Accountants.

iv. In payment to the husband of the balance.

v. In the event the parties cannot agree upon the reserve price at auction or any offers received before or after auction then the parties or either of them shall appoint the President for the time being of the Real Estate Institute or his or her nominee to assess the reserve price at auction and/or whether any offer made before or after auction is the best price reasonably obtainable and the parties shall be bound by such assessment and shall equally bear the cost.

In the event that the proceeds of sale of K property are insufficient to meet the amount due to the wife pursuant to these Orders, then the parties shall do all acts and things necessary to sell, in sequential order, C property, O property, L property then B property (or such other order as is determined by the husband in writing) until such time as the full amount due to the wife is paid. The orders that apply to the sale of K property shall apply to any sale of these properties.

The wife is declared to be the sole and beneficial owner of any motor vehicle or item of personalty in her possession or control (including the Teddy Bear collection) and any superannuation entitlements accruing in the name of the wife at the date of this order.

The husband is declared to be the sole and beneficial owner of:-

a. The business undertaking of E Business.

b. The 1996 Ford Mustang motor vehicle.

c. The 1991 Harley Davidson motorcycle.

d. The household contents at B (except the Teddy Bear collection).

e. The proceeds of sale of the Haines Hunter Boat.

f. The proceeds of sale of the Toyota Camry motor vehicle.

g. Any superannuation entitlements accruing in the name of the husband at the date of this order.

10.

The husband shall pay to the Australian Taxation Office one half of the tax accrued by the wife in respect of the rental received on the jointly owned properties between 1 July 2008 and 30 June 2010 namely K property and O property, subject to

a. The husband shall provide to the wife full details of such rental received within sixty (60) days from the date of this order.

b. The amount payable by the husband shall be calculated on the basis of the higher rate or rates of taxes incurred by the wife in respect of that or those financial years in which such tax accrued.

c. Such indemnity and requirement to pay shall only arise provided that the wife lodges her relevant income tax returns for the 2009 and 2010 income tax year on or before 30 June 2011, or such longer period as is agreed between the parties or determined by the Court if the husband does not provide information in accordance with this order or does not make the payments due in accordance with order 1.

11.

It is declared that all income earned by the properties at K and O is income of the husband from 1 July 2010 and all liabilities incurred in respect of those properties prior to the date of these orders and prior to assignment of these properties to the husband are the liability of the husband and he shall indemnify the wife in that respect.

12.

The parties be given liberty to apply in respect to the mechanical issues in respect of these orders, within twenty one (21) days from the date of these orders.

13.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

14.

This matter be removed from the list of cases requiring determination.

IT IS CERTIFIED

15.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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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