NEIL & NEIL - [2011] FamCA 492

FAMILY COURT OF AUSTRALIA

NEIL & NEIL

[2011] FamCA 492

FAMILY LAW - PROPERTY SETTLEMENT – Determining matrimonial asset pool – superannuation interests treated as property

FAMILY LAW - PROPERTY SETTLEMENT – Contributions – husband is primary income earner – wife is primary carer for the children and primarily responsible for domestic duties – capital sum provided by the husband’s parents is treated as contribution made by or on behalf of the husband – wife’s agreement to husband’s use of the former matrimonial home to raise funds for the purchase of his business is treated as a contribution by the wife – husband’s investment skill – substantial funds from wife’s inheritance contributed to matrimonial assets and expenses – husband made post-separation contributions towards expenses – finding that wife’s contributions are greater than the husband’s

FAMILY LAW - PROPERTY SETTLEMENT – Adjustments – wife’s income earning capacity inferior to husband’s – wife’s superannuation interests less than the husband’s – wife is older than husband – residue of deceased estate is not a financial resource for the wife – adjustment of 3% in favour of the wife

FAMILY LAW - PROPERTY SETTLEMENT –Just and equitable orders – wife has inhabited former matrimonial home since separation – husband intends to work and live in geographical area away from the former matrimonial home – wife is sole legal and beneficial owner of former matrimonial home

FAMILY LAW - PROPERTY – Spousal maintenance – application considered in light of adjustment of property interests – mortgage repayments on investment property is not cost reasonably incurred to maintain the wife – husband shall continue to pay spousal maintenance until property settlement orders implemented or until wife acquires greater income earning capacity

Family Law Act 1975 (Cth), ss 75(2), 79(4)

Brodie v Brodie (2009) 41 Fam LR 18
Calverley v Green (1984) 155 CLR 242
Coghlan & Coghlan (2003) FLC 93-220
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Marriage of Kessey (1994) FLC 92-495
Omacini v Omacini (2005) FLC 93-218
Pierce v Pierce (1999) FLC 92-844

APPLICANT:

Ms Neil

RESPONDENT:

Mr Neil

FILE NUMBER:

NCC

633

2010

DATE DELIVERED:

27 June 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

1, 2 & 3 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Graham

SOLICITOR FOR THE APPLICANT:

Mullane & Lindsay

COUNSEL FOR THE RESPONDENT:

Mr Bateman

SOLICITOR FOR THE RESPONDENT:

Manning Valley Legal & Conveyancing

Orders

The wife is declared the sole legal and beneficial owner (as between the parties) of the following real properties and improvements (“the properties”) and the husband shall forthwith do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the properties to the wife:

(a)The real property comprising Folio Identifier …, being more commonly known as … A Street, Newcastle Suburb 1, NSW; and

(b)The real property comprising Folio Identifier …, being more commonly known as … S…

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 NEIL & NEIL

Details

AGLC: NEIL & NEIL [2011] FamCA 492
Case: [2011] FamCA 492
Decision Date: 27 June 2011

CaseChat Overview and Summary

In the matter of NEIL & NEIL, Austin J of the Family Court of Australia considered a property settlement dispute between a husband and wife. The core of the disagreement involved the division of the matrimonial asset pool, which included various properties, business interests, and superannuation funds. The court was tasked with determining the contributions of each party to the marriage and making just and equitable orders for the division of property and spousal maintenance.

The legal issues before the court included the valuation and treatment of superannuation interests as property, the assessment of financial and non-financial contributions made by each party throughout the marriage, and the appropriate adjustments to be made to the property division based on factors such as future income-earning capacity, age, and the need for a just and equitable outcome. The court also considered the wife's application for spousal maintenance in light of the proposed property settlement.

Austin J reasoned that while the husband was the primary income earner, the wife's contributions as the primary carer for the children and homemaker were significant. The court recognised a capital sum provided by the husband's parents as a contribution on his behalf and the wife's agreement to the use of the former matrimonial home for business funding as a contribution by her. The wife's inheritance was also considered a substantial contribution to matrimonial assets. After weighing these contributions, the court found the wife's contributions to be greater than the husband's. Further adjustments were made in favour of the wife due to her inferior income-earning capacity, younger age, and lesser superannuation interests. The court also determined that the residue of a deceased estate was not a financial resource for the wife.

The court made detailed orders for the division of property, including the transfer of specific real estate and personal property between the parties, and a significant monetary payment from the husband to the wife. The husband was ordered to pay spousal maintenance to the wife until the property settlement was implemented or her income-earning capacity improved, with specific termination conditions. The court also granted the Registrar of the Family Court power to execute documents on behalf of the parties if necessary to implement the orders.

Orders

Orders of the court

The wife is declared the sole legal and beneficial owner (as between the parties) of the following real properties and improvements (“the properties”) and the husband shall forthwith do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the properties to the wife:

(a) The real property comprising Folio Identifier …, being more commonly known as … A Street, Newcastle Suburb 1, NSW; and

(b) The real property comprising Folio Identifier …, being more commonly known as … S Street, Town 1, NSW.

The husband shall pay to the wife the sum of $311,377 within 4 months of the date of these orders.

Subject to compliance with Orders 1 and 2 hereof, and in consideration of those transfers and payment, the wife shall indemnify and keep indemnified the husband against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the properties.

Subject to compliance with Orders 1 and 2 hereof, the husband is declared the sole legal and beneficial owner (as between the parties) of:

(a) His interest in Neil Pty Ltd; and

(b) His interest in the Neil Service Trust.

Subject to compliance with Orders 1 and 2 hereof, the husband is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier …, being the property more commonly known as … N Street, Newcastle Suburb 2, NSW (“the Newcastle Suburb 2 property”), and the wife shall do all such things and sign all such documents as may be necessary to transfer all her right, title, and interest in the property to the husband contemporaneously with her receipt of payment pursuant to Order 2 hereof.

In consideration of the transfer pursuant to Order 5 hereof, the husband shall indemnify and keep indemnified the wife against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the Newcastle Suburb 2 property.

In default of compliance with Order 2 hereof, the wife is declared the sole legal and beneficial owner (as between the parties) of all assets held by the parties jointly in the Neil Family Trust, including the Newcastle Suburb 2 property, float shares, trading shares, and managed funds, and the husband shall forthwith do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in such assets to the wife.

In default of compliance with Order 2 hereof, leave is granted to the wife to re-list the matter before the Court on or before 16 December 2011 on 7 days notice to seek further enforcement orders relating to the property of the parties, including but not limited to:

(a) The husband’s interest in Neil Pty Ltd; and

(b) The husband’s interest in the Neil Service Trust.

The wife is declared the sole legal and beneficial owner (as between the parties) of the following items of personal property and the husband shall forthwith do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in such property to the wife:

(a) Mitsubishi motor vehicle; and

(b) Furniture and personal effects in the possession of the wife.

10.

Subject to compliance with Orders 1 and 2 hereof, the husband is declared the sole legal and beneficial owner (as between the parties) of the following items of personal property and the wife shall forthwith do all such things and sign all such documents as may be necessary to transfer all her right, title, and interest in such property to the husband:

(a) All assets other than real property held by the parties jointly in the N Family Trust, including float shares, trading shares, and managed funds;

(b) The W investments;

(d) Type 1 boat; and

(e) Furniture and personal effects in the possession of the husband.

11.

Subject to compliance with Orders 1 and 2 hereof, the wife shall forthwith do all such things and sign all such documents as may be necessary to resign or relinquish her trusteeship of the Neil Family Trust.

12.

Each party shall forthwith do all acts and things and sign all such documents as may be necessary so as to direct L Pty Ltd, pursuant to Part 7A of the Superannuation Industry (Supervision) Regulations 1994, to roll-over or transfer the superannuation interest of the wife in the Neil Superannuation Fund to another regulated superannuation fund, approved deposit fund, exempt public sector superannuation scheme, or retirement savings account, as nominated by the wife in writing.

13.

Upon compliance with Order 12 hereof:

(a) The husband is declared the sole legal and beneficial owner (as between the parties) of the shares in L Pty Ltd and the wife shall forthwith transfer to the husband all her right, title, and interest in such shares; and

(b) The wife shall forthwith resign any office she holds in L Pty Ltd.

14.

The husband shall indemnify and keep indemnified the wife against any and all liability arising from:

(a) Her holding office in L Pty Ltd;

(b) Her shareholding in L Pty Ltd; and

15.

The wife shall indemnify and keep indemnified the husband against any and all liability arising in relation to the administration of the deceased estate of the late Mr D pursuant to letters of administration granted to the wife on 27 September 2006, and the use of the assets of that deceased estate.

16.

Unless otherwise provided:

(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these Orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder, investment accounts are deemed in the possession of the named investor, and superannuation entitlements are deemed in the possession of the superannuant.

(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names, including any individual liability for capital gains tax arising out of the sale by either of the parties of real or personal property pursuant to these Orders.

17.

Orders 1.1, 1.2, and 1.3 made on 20 April 2010 are discharged.

18.

The husband shall pay to the wife the sum of $550 per week by way of spousal maintenance upon the following conditions:

(a) The first payment is due 7 days from the date of these orders;

(b) Payments shall be made by way of direct deposit to the wife’s account held with the St George Bank, being BSB number … and account number …;

(i) The husband complies with Order 2 hereof;

(ii) The wife graduates from the course in which she is currently enrolled at … University;

(iii) 31 December 2012 is reached.

19.

In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these Orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act 1975.

20.

Any and all outstanding applications are dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.