ORMOND & ORMOND - [2014] FCCA 1536

FEDERAL CIRCUIT COURT OF AUSTRALIA

ORMOND & ORMOND

[2014] FCCA 1536

Catchwords:
FAMILY LAW – Property settlement – long marriage – consideration of contributions – consideration of factors pursuant to s.75(2), particularly capacity to earn income – distribution of the property.

FAMILY LAW – Property settlement – lump sum maintenance – no application made for capitalisation of periodic maintenance.

Legislation:

Family Law Act 1975 (Cth), ss.72; 74; 75; 79

Bevan & Bevan (2013) FLC 93-545
Budding & Budding [2009] FamCAFC 165
Chapman & Chapman [2014] FamCAFC 91
NHC & RCH (2004) FLC 93-204
Clauson & Clauson (1995) FLC 92-595
Mitchell & Mitchell (1995) FLC 92-601
Norbis & Norbis (1986) 161 CLR 513
Stanford & Stanford (2012) 247 CLR 108
Vautin & Vautin (1998) FLC 92-827

Applicant:

MS ORMOND

Respondent:

MR ORMOND

File Number:

HBC 900 of 2012

Judgment of:

Judge Baker

Hearing dates:

16 and 17 April 2014

Date of Last Submission:

17 April 2014

Delivered at:

Hobart

Delivered on:

17 July 2014

REPRESENTATION

Counsel for the Applicant:

Mr Foster

Solicitors for the Applicant:

Murdoch Clarke

Counsel for the Respondent:

Mr Lewinski

Solicitors for the Respondent:

Butler McIntyre Butler

ORDERS

Within seven (7) days the Husband transfer to the Wife any right, title or interest he may have in the following:
(a)The property situated at Property N;
(b)Any shares owned by the Wife;
(c)The Wife’s motor vehicle; and
(d)Any household chattels or furniture in the Wife’s possession.
Within seven (7) days the Wife transfer to the Husband any right, title or interest she may have in:
(a)The property situated at Property R;
(b)The Husband’s motor vehicle;
(c)(omitted) Pty Ltd and (omitted) Unit Trust and (omitted) Trust (including the motor vessel “(omitted)”);
(d)The mooring; and
(e)Any household chattels or furniture in the Husband’s possession.
To give effect to the provision of paragraph 2(c) herein, the Wife within seven (7) days:
(a)Resign as a director of (omitted) Pty Ltd;
(b)Transfer her shareholding in (omitted) Pty Ltd to the Husband or his nominee;
(c)Renounce any interest or entitlement in the (omitted) Unit Trust; and
(d)Renounce any interest or entitlement in the (omitted) Trust.
The Order for interim spouse maintenance be discharged as at 8 January 2014.
Paragraphs 6 to 11 inclusive of these Orders are binding on the Trustees of the Ormond Superannuation Fund (“the Fund”).
The Husband and Wife do all such acts and things and sign all documents to give effect to the splitting orders set out herein. The transfers of the assets of the Fund are regulated, in part, by the Superannuation Industry (Supervision) Regulations 1994.
In accordance with s 90MT(1)(b) of the Family Law Act1975 (“the Act”), whenever a splittable payment within the meaning of s.90ME of the Act becomes payable to or on behalf of the Wife from her interest in the Fund, the Husband be entitled to be paid (by the Trustees of the Fund), 100% of that splittable payment and there is a corresponding reduction in the entitlement the Wife would have had but…

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 ORMOND & ORMOND

Details

AGLC: ORMOND & ORMOND [2014] FCCA 1536
Case: [2014] FCCA 1536
Decision Date: 17 July 2014

CaseChat Overview and Summary

In the matter of Ormond & Ormond, Judge Baker of the Family Court of Australia considered a property settlement dispute between a husband and wife following a long marriage. The proceedings involved the division of various assets, including real estate, vehicles, company shares, a unit trust, a motor vessel, a mooring, and interests in a superannuation fund. The court also addressed the discharge of an interim spousal maintenance order.

The primary legal issues before the court were to determine the appropriate distribution of the parties' property, taking into account their contributions and the factors enumerated in section 75(2) of the *Family Law Act 1975*, with a particular focus on the parties' respective capacities to earn income. The court was also required to make orders concerning the division of the parties' superannuation interests, including the allocation of splittable payments and the practical steps necessary to give effect to these divisions.

Judge Baker reasoned that a just and equitable distribution of the matrimonial assets was required, considering the length of the marriage and the contributions made by each party. The court applied the principles of property settlement under the *Family Law Act 1975*, including an assessment of future needs and financial circumstances. Specific orders were made for the transfer of various properties and assets between the parties, including the resignation of the wife as a director and the transfer of her shareholding in a company. The court also made detailed orders regarding the division of the Ormond Superannuation Fund, specifying the percentage of splittable payments each party would receive and outlining the obligations of the fund trustees.

The court ordered the discharge of the interim spousal maintenance order as of 8 January 2014. The orders provided for the transfer of specific assets between the husband and wife, the division of their superannuation interests, and the allocation of costs associated with compliance and the preparation of financial statements for the superannuation fund. Each party was to be solely entitled to property in their possession and solely liable for their respective debts and liabilities. The question of the respondent's costs was reserved.

Orders

Orders of the court

Within seven (7) days the Husband transfer to the Wife any right, title or interest he may have in the following:

(a) The property situated at Property N;

(b) Any shares owned by the Wife;

(d) Any household chattels or furniture in the Wife’s possession.

Within seven (7) days the Wife transfer to the Husband any right, title or interest she may have in:

(a) The property situated at Property R;

(b) The Husband’s motor vehicle;

(d) The mooring; and

(e) Any household chattels or furniture in the Husband’s possession.

To give effect to the provision of paragraph 2(c) herein, the Wife within seven (7) days:

(a) Resign as a director of (omitted) Pty Ltd;

(b) Transfer her shareholding in (omitted) Pty Ltd to the Husband or his nominee;

(d) Renounce any interest or entitlement in the (omitted) Trust.

The Order for interim spouse maintenance be discharged as at 8 January 2014.

Paragraphs 6 to 11 inclusive of these Orders are binding on the Trustees of the Ormond Superannuation Fund (“the Fund”).

The Husband and Wife do all such acts and things and sign all documents to give effect to the splitting orders set out herein. The transfers of the assets of the Fund are regulated, in part, by the Superannuation Industry (Supervision) Regulations 1994.

In accordance with s 90MT(1)(b) of the Family Law Act 1975 (“the Act”), whenever a splittable payment within the meaning of s.90ME of the Act becomes payable to or on behalf of the Wife from her interest in the Fund, the Husband be entitled to be paid (by the Trustees of the Fund), 100% of that splittable payment and there is a corresponding reduction in the entitlement the Wife would have had but for this Order.

In accordance with s.90MT(1)(a) of the Act whenever a splittable payment within the meaning of s.90ME of the Act becomes payable to or on behalf of the Husband, from his interest in the Fund, the Wife is entitled to be paid (by the Trustees of the Fund) the sum of Three Hundred and Eighty One Thousand Dollars ($381,000.00) and there is a corresponding reduction in the entitlement the Husband would have had but for this Order.

The operative time for this Order is four (4) days after service on the Trustees of the Fund.

10.

The Trustees of the Fund shall do all acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the Trustees can calculate the entitlement of, and make payment to, the Wife in accordance with paragraph 8 of this Order.

11.

Contemporaneously with the allocation to the Wife pursuant to paragraph 8 of this Order the Wife either:

(a) Do all things necessary, including but not limited to, exercising her request pursuant to reg 7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the parties interest in the Fund to a fund of the Wife’s choosing in accordance with reg 7A.12 of the Superannuation Industry (Supervision) Regulations 1994; or

(b) Provide written instructions to the Trustees of the Fund to pay to the Wife an amount equivalent to the amount calculated pursuant to paragraph 8 of this Order whereupon the parties shall do all things necessary to ensure payment of that amount to the Wife.

12.

Thereafter contemporaneously with the allocation or payment to the Wife pursuant to paragraph 11 of this Order, the Wife:

(a) Do all acts and things and sign all necessary documents submitted to her by the Husband so that she ceases to be a member of the Fund; and

(b) Resign and cease her role as a Trustee of the Fund and the Husband (excepting only the obligations of the Wife pursuant to paragraph 13 of this Order) indemnify the Wife against all liabilities attaching to the Fund thereafter.

13.

Within seven (7) days of receipt of a tax invoice from accountants “(omitted)” the costs of and associated with compliance by the Fund being costs of:

(a) Preparation of audited annual Financial Statements and Tax Returns for the financial year ended 30 June 2014; and

(b) Preparation of audited Financial Statements and Tax Returns for the year from the 1 July 2014 to the winding up of the Fund

shall be paid by the Husband and Wife in the proportion of 57% by the Husband and 43% by the Wife.

14.

Unless otherwise specified in this Order:

(a) Each party be solely entitled to the exclusion of the other to all property in the possession of that party as at this date;

(b) Each party be solely liable for and indemnify the other party against any liability encumbering any form of property to which that party is entitled pursuant to this Order; and

15.

The question of the Respondent’s costs of $13,455 be reserved.

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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