Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Olsson & Olsson [2022] FedCFamC1A 129
Appeal from: Olsson & Olsson [2022] FCWAM 95 Appeal number(s): NAA 62 of 2022 File number(s): PTW 6458 of 2015 Judgment of: ALDRIDGE J Date of judgment: 18 August 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from orders made to aid the enforcement of the property settlement orders – Where those orders altered the husband’s interest in the properties and the wife’s right of occupation in the former matrimonial home – Whether the orders are substantive or consequential – Where the substantive order was that the wife receive a fixed sum of money and thus the appealed orders are consequential – Exercise of direction – No error established – Appeal dismissed – Appellant to pay the costs of the respondent in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 79, 79A, 83 Cases cited: House v The King (1936) 55 CLR 499; [1936] HCA 40
McDonald and McDonald (1976) FLC 90-047
Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4
Pera & Pera (2008) FLC 93-372; [2008] FamCAFC 87
Ravasini and Ravasini (1983) FLC 91-312
Number of paragraphs: 51 Date of hearing: 4 August 2022 Place: Perth, delivered in Sydney Counsel for the Appellant: Mr Hedges SC Solicitor for the Appellant: Biddulph & Turley Counsel for the Respondent: Mr Hooper SC Solicitor for the Respondent: MGM O’Connor Lawyers ORDERS
NAA 62 of 2022
PTW 6458 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS OLSSON
Appellant
AND: MR OLSSON
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
18 august 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 26 July 2022 is dismissed.
2.The Application in an Appeal filed on 2 August 2022 is dismissed.
3.The Application in an Appeal filed on 3 August 2022 is dismissed.
4.The application for leave to appeal is refused.
5.The appellant is to pay the costs of the respondent fixed in the sum of $14,833.44.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Olsson & Olsson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
Introduction
On 21 November 2019, property settlement orders were made by consent in proceedings between Ms Olsson (“the wife”) and Mr Olsson (“the husband”). The wife was to be paid $1.27 million which was to be realised from the sale of three commercial properties…
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- AGLC
- Olsson & Olsson [2022] FedCFamC1A 129
- Case
- [2022] FedCFamC1A 129
- Decision Date
CaseChat Overview and Summary
The matter of Olsson & Olsson was heard by the Family Court of Australia, where the central dispute between the parties involved the division of their property and financial interests following their separation. The primary issue was the enforcement of settlement orders made by the Court on 21 November 2019, which detailed the distribution of assets and financial obligations between the parties, including a substantial settlement payment and various other financial and property-related directives.
The legal issues before the Court centred on the interpretation and enforcement of the orders, specifically whether the husband had complied with his obligations under the orders. The wife alleged that the husband had not fulfilled his commitments, including the payment of a substantial settlement sum, the payment of her income tax liabilities, and the release of her from certain financial guarantees and liabilities. The husband, on the other hand, argued that he had substantially complied with the orders and that any alleged non-compliance was either minor or had been rectified.
The Court examined the specific provisions of the orders and the evidence presented by both parties. The Court determined that while the husband had made some efforts to comply with the orders, there were instances of non-compliance or partial compliance that warranted enforcement action. The Court found that the husband had not fully met his obligations regarding the settlement payment, the payment of the wife's income tax liabilities, and the release of the wife from certain financial guarantees and liabilities. The Court ordered the husband to take specific steps to rectify these failures and ensure full compliance with the orders.
The Court's orders included directions for the husband to make outstanding payments to the wife, to release her from specified guarantees and liabilities, and to provide evidence of compliance with the orders within specified timeframes. The Court also granted liberty to apply for further orders if there was continued non-compliance or if specific issues arose during the enforcement process.
The legal issues before the Court centred on the interpretation and enforcement of the orders, specifically whether the husband had complied with his obligations under the orders. The wife alleged that the husband had not fulfilled his commitments, including the payment of a substantial settlement sum, the payment of her income tax liabilities, and the release of her from certain financial guarantees and liabilities. The husband, on the other hand, argued that he had substantially complied with the orders and that any alleged non-compliance was either minor or had been rectified.
The Court examined the specific provisions of the orders and the evidence presented by both parties. The Court determined that while the husband had made some efforts to comply with the orders, there were instances of non-compliance or partial compliance that warranted enforcement action. The Court found that the husband had not fully met his obligations regarding the settlement payment, the payment of the wife's income tax liabilities, and the release of the wife from certain financial guarantees and liabilities. The Court ordered the husband to take specific steps to rectify these failures and ensure full compliance with the orders.
The Court's orders included directions for the husband to make outstanding payments to the wife, to release her from specified guarantees and liabilities, and to provide evidence of compliance with the orders within specified timeframes. The Court also granted liberty to apply for further orders if there was continued non-compliance or if specific issues arose during the enforcement process.
Orders
Orders of the court
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Background
Background to the litigation
It is therefore necessary to say something about the parties’ property and to set the relevant orders out in full.Background The parties’ directly or indirectly, owned four items of real estate together with interests in three companies and a trust (which were collectively referred to in the orders as the “entities”). Two properties were owned by companies owned and controlled by the husband and one was owned by the husband himself. The former matrimonial home, described in the orders as the “FMH”, was owned jointly or in common. At the time they were made, it was occupied only by the wife. The relevant orders made on 21 November 2019 were:14.That the Husband pay to the Wife the sum of $1,270,000 (“the settlement”) as follows:- (a)the sum of $80,000 within 30 days of the date of these Orders (“the first payment”); (b)the sum of $10,000 per month (“the monthly payments”) until the settlement of the sale of the property situated at [Suburb C], in the State of Western Australia (“the FMH”) to commence on the first month following the payment of the sum pursuant to Order 14(a) hereof; (c) any amounts payable pursuant to Orders 22(d), 23(d) and 24(d) hereof; (d) the amount of $175,000 as set out in Order 9 hereof; (e)the balance then remaining of the settlement sum upon settlement of the sale of the FMH pursuant to Order 27(d) hereof save that in the event that there are insufficient funds from the sale then the payments pursuant to sub paragraph (b) hereof continue until such time as the Wife receives the full amount to which she is entitled under this Order. Other payments 15.That within 14 days of these Orders being made or within 14 days of the issue of a Notice of Assessment or Amended Notice of Assessment as the case may be, whichever is the sooner, the Husband will either pay or cause to be paid all income tax of the Wife, past present or future, arising from distributions to the Wife from one or more of the Entities (as defined in Order 18 or any other entity under the control of the Husband) assessed in accordance with any Notice of Assessment or any subsequent Amended Notice of Assessment issued to the Wife or enter into a payment plan with the Australian Taxation Office as to same and any penalties and interest which may have accrued payable by the Wife for the 2016, 2017, 2018, 2019 and 2020 tax years and provide proof of payment to the Wife within 7 days of payment.…The Entities 17.That on the making of these Orders the Husband forthwith do all acts and sign all documents necessary to:- (a)secure the Wife’s release from any guarantee given by her and arising from, or in relation to, her involvement in any of the Entities as defined in Order 18; (b)pay as and when they fall due, and indemnify the Wife, and thereafter keep her indemnified, against any and all actions, claims or debts arising from or in relation to her involvement in the Entities including but not limited to: (i) Any guarantees given by her; (ii)Any amounts recorded as owing by her in the financial statements of any of the Entities; (iii)Any Capital Gains Tax payable in respect to the sale of the Commercial Properties as defined below; and (iv)Any tax, interest or penalties arising from distributions made to her from, or her involvement in, any of the Entities, including the tax liabilities, including penalties and interest, arising in her name from distributions made to her in the financial years from 2016 to 2019 as referred to in Orders 18 and 19 excluding any fines or penalties that the Wife may incur from the Australian Taxation Office for any receipt of government payments such as the family tax benefit. (c)within 7 days transfer Wife’s mobile telephone number (being …) to the Wife, he having paid all amounts due to the provider up to and including the date of transfer.18.That upon the Husband’s compliance with Order 14(a) and Orders 17(a) and (c), and at his cost, the Wife do all acts and sign all the documents necessary, at the Husband’s expense as to (a), (b), (c) and (e) to:- (a)Resign from any offices or positions she holds in [P Pty Ltd] and [Y Pty Ltd] including as a director; (b)Transfer to the Husband all of her shares in [D Pty Ltd], [P Pty Ltd] and [Y Pty Ltd]; (c)Transfer and assign to the Husband any amounts listed as owing to her in the financial statements of any of the aforementioned entities or the [Olsson] Trust (hereinafter collectively referred to as “the Entities”), and transfer to the Husband any debts showed as owed by her to the entities; (d) Withdraw the Statutory Demands issued against the companies; and (e)Subject to these Orders, relinquish any rights she may have as a beneficiary of [Olsson] Family Trust. The Commercial Properties 19.That the Husband forthwith do all acts and things and sign all documents necessary to list on the market for sale, and thereafter cause the sale and settlement of the following properties:- (a) [Property A, Suburb A](b) [Property B, Suburb A] (c) [Property C, Suburb A] (collectively referred to as “the Commercial Properties”) and each property shall be actively marketed for sale and listed on realestate.com.au within 4 weeks of the date of these orders and remain listed and available for viewing on a weekly basis on such website until sale. 20.That the Husband shall accept any offer for any of the Commercial Properties which either meets or exceeds or is within 10% of the value being: (a) $762,125 for [Property A]; (b) $1,772,550 for [Property B](c) $446,725 for [Property C] 21.In the event that all of the above properties set out in Order 19 are not sold within a period of 12 months the parties agree to reconsider the acceptable sale price for those properties based on three updated appraisals of the properties at that time. 22.Upon the sale and settlement of [Property A] the proceeds be distributed as follows:- (a) In payment of any Agent’s fees and commissions; (b) In payment of any adjustments for rates and taxes; (c) In payment of any loans secured by mortgage over [Property A]; (d)In payment of the balance (if any) to the Wife in reduction of the amount owing to her pursuant to Order 14. 23.Upon the sale and settlement of [Property B] the proceeds be distributed as follows:- (a) In payment of any Agent’s fees and commissions; (b) In payment of any adjustments for rates and taxes; (c) In payment of any loans secured by mortgage over [Property B]; (d)In payment of the balance (if any) to the Wife in reduction of the amount owing to her pursuant to Order 14. 24.Upon the sale and settlement of [Property C] the proceeds be distributed as follows:- (a) In payment of any Agent’s fees and commissions; (b) In payment of any adjustments for rates and taxes; (c) In payment of any loans secured by mortgage over [Property C]; (d)In payment of the balance (if any) to the Wife in reduction of the amount owing to her pursuant to Order 14. The Former Matrimonial Home 25.Upon an unconditional contract for the sale of the last of the commercial properties being entered into, the parties do all acts and sign all documents necessary to list on the market for sale, and thereafter cause the sale and settlement of the FMH. 26. For the purposes of the preceding paragraph:- (a)The parties appoint such real estate agents as they shall agree upon, and failing agreement, such agent as may be recommended by the president of the Real Estate Institute of Western Australia upon request from either party in writing (“the Agent”); (b)The parties list the property for sale in such a manner and upon such terms as the parties may agree upon advice from the Agent; (c)The Wife shall co-operate with the Agent’s reasonable requests and ensure the FMH is in a reasonable and tidy state of repair and facilitate the Agent in having open homes at such reasonable times as they may request; (d)The parties accept any offer over $1,850,000 or such other sum as is agreed with the property to be listed for sale at $1,990,000; and (e)The parties otherwise have liberty to apply in relation to the terms of sale. 27.Upon the sale and settlement of the FMH the proceeds be distributed as follows:- (a) In payment of any Agent’s fees and commissions; (b) In payment of any adjustments for rates and taxes; (c) In payment of any loans secured by mortgage over the property; (d)In payment of the remaining amount due to the Wife pursuant to Order 14 of these Orders; (e) In payment of the balance then remaining to the Husband. 28. Pending settlement of the sale of the former matrimonial home: (a)The Wife have exclusive use and occupation of the FMH and during such right of occupation she pay all the costs of occupation being gas, electricity, water usage, contents insurance, cleaning, general pool maintenance and garden maintenance. (b)The Wife is to keep the FMH in clean and tidy condition, fair wear and tear excepted with the property to be presented as a residential property. (c)That forthwith upon these Orders being made, the Husband pay or cause to be paid the following amounts:- (i)Such amounts as may be necessary to service the loans secured by mortgage over the FMH as and when they fall due. (ii)Obtain and maintain home insurance for the home with a reputable insurance company and provide proof to the Wife within 7 days of a certificate of currency of insurance covering the home to the value of $850,000. (iii)The following payments relating to the FMH as and when they fall due:- (A)Rates and taxes and provide proof to the Wife of payment within 14 days of the due date; (B) Urgent repairs as defined below; (C)Agreed general repairs and maintenance and agreed or necessary improvements Urgent repairs (for example repairs relating to basic services such as the provision of hot water, electricity and gas and repairs to inbuilt whitegoods (excluding the zip tap in the kitchen) and appliances to ensure they are in full working order) are to be carried out by licensed contractors paid for by the Husband within 48 hours of any urgent issue arising.…33. That there be liberty to apply in respect of:- (a)the sale of the Commercial Properties in the event that the properties are not sold within 12 months of the date of these Orders; (b) the sale of the FMH; and/or (c)the release of the Wife from the guarantees referred to in Order 17(a) hereof.
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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