Pilot and Pilot - [2010] FamCA 1064

FAMILY COURT OF AUSTRALIA

PILOT & PILOT

[2010] FamCA 1064

FAMILY LAW – PROPERTY SETTLEMENT – long trial – reliability of witnesses – identifycation of relatively large asset pool – various add backs – full and frank disclosure contributions
FAMILY LAW – PRACTICE AND PROCEEDURE – Delay in delivering reasons – an explanation

Family Law Act 1975 (Cth) ss 75(2), 79, 117

MRR v GR [2010] HCA 4
Chorn & Hopkins (2004) FLC 93-204
Essex v Essex [2009] FamCAFC 236
Gollings & Scott (2007) FLC 93-319
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
McGregor v McGregor (1996) FLC 92-701
Omacini & Omacini (2005) FLC 93-218.
Townsend& Townsend (1995) FLC 92-569
Kannis & Kannis (2002) FLC 93-135
Stein v Stein (1986) FLC 91-779
Mezzacappa v Mezzacappa (1987) FLC 91-853
Black & Kellner (1992) FLC 92-287
Weir v Weir (1993) FLC 92-338
Gould & Gould (2007) FLC 93-333
Chang v Su (2002) FLC 93-117
Mallet v Mallet (1984) FLC 91-507

APPLICANT:

Ms Pilot

RESPONDENT:

Mr Pilot

FILE NUMBER:

HBF

1990

1999

DATE DELIVERED:

28 October 2010 & 22 November 2010

PLACE DELIVERED:

Hobart

PLACE HEARD:

Launceston & Hobart

JUDGMENT OF:

Benjamin J

HEARING DATES:

4 & 24 July 2008, 18 August 2008, 4 & 29 September 2008, 2, 16, 27, 28 & 30, 31 October 2008, 11 & 12 November 2008, 11 & 16 December 2008, 18, 23, 24, 25, 26 & 27 February 2009, 1 April 2009, 29 & 30 June 2009, 1, 2, 3, 6, 7, 8, 9, 10, 29 & 30 July 2009, 7 September 2009, 28 October 2009, 7 December 2009, 6 & 28 October 2010 and 22 November 2010.

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Foster with Ms Harper (2008) & Ms Eddington (2009 & 2010)
Mr Dixon S.C. at the view
Ms Trezise acted for the wife in August 2008

SOLICITORS FOR THE APPLICANT:

Murdock Clarke

COUNSEL FOR THE RESPONDENT:

Mr Gunson SC with Mr Murray
Mr McGuire (as he then was) at the view

SOLICITORS FOR THE RESPONDENT:

Murray & Associates

Orders

All extant Orders (excluding the Order that the husband pay spousal maintenance to the wife) be and are discharged.
The Order that the husband pay spousal maintenance be discharged as and from sixty (60) days from the date of this Order.
The husband pay to the wife the sum of $132,586.37 within twenty one days of the date of this order, together with interest on that sum accruing from 5 June 2010 to the date of payment. Such interest to be calculated in accordance with the rate of interest prescribed by the Rules under the Family Law Act 1975 (Cth).
The husband pay to the wife a further sum of $164,500 within three (3) months from the date of these orders.
Within three (3) months from the date of this order the parties:-
(a)Each pay to the Pilot Superannuation Fund the sum of $385,825.50 (making a total payment, excluding interest of $771,651);
(b)In addition…

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 Pilot and Pilot

Details

AGLC: Pilot and Pilot [2010] FamCA 1064
Case: [2010] FamCA 1064
Decision Date: 28 October 2010 & 22 November 2010

CaseChat Overview and Summary

This matter concerned orders made by Benjamin J in the Federal Circuit and Family Court of Australia. The proceedings involved a dispute between a husband and wife regarding the division of their assets and liabilities.

The court was required to determine the appropriate orders for the discharge of existing orders, the payment of spousal maintenance, the distribution of significant sums of money, the division of superannuation interests, and the transfer of company shares and trust interests. The court also had to consider the liabilities associated with a company and a unit trust, and the respective responsibilities of the parties in relation to these entities.

Benjamin J ordered the discharge of all existing orders, except for the husband's obligation to pay spousal maintenance, which was to be discharged in sixty days. The husband was ordered to pay the wife a sum of $132,586.37 with interest, and a further sum of $164,500 within three months. Both parties were ordered to pay substantial sums to the Pilot Superannuation Fund, with provisions for the transfer of real property or for one party to cover the other's liability. The court also made detailed orders concerning the transfer of the husband's interests in DE Pty Limited and the DE Unit Trust to the wife, including the assumption of liabilities by the wife. Furthermore, the court made orders binding on the trustees of the Pilot Superannuation Fund regarding the distribution of splittable payments.

Orders

Orders of the court

All extant Orders (excluding the Order that the husband pay spousal maintenance to the wife) be and are discharged.

The Order that the husband pay spousal maintenance be discharged as and from sixty (60) days from the date of this Order.

The husband pay to the wife the sum of $132,586.37 within twenty one days of the date of this order, together with interest on that sum accruing from 5 June 2010 to the date of payment. Such interest to be calculated in accordance with the rate of interest prescribed by the Rules under the Family Law Act 1975 (Cth).

The husband pay to the wife a further sum of $164,500 within three (3) months from the date of these orders.

Within three (3) months from the date of this order the parties:-

(a) Each pay to the Pilot Superannuation Fund the sum of $385,825.50 (making a total payment, excluding interest of $771,651);

(b) In addition each party to pay to the Fund interest on the $385,825.50 from 5 June 2010 to the date of payment. Such interest to be calculated in accordance with the rate/s of interest prescribed by the Rules under the Family Law Act 1975 (Cth).

(c) Either party may transfer real property by way of part/whole satisfaction of the liability created by this order provided the value of that real property is either in accordance with the agreed value for the purpose of these proceedings or is reasonably accepted by both trustees and the parties’ respective accountants as having such a value.

(d) If one of the parties is unable or unwilling to pay their liability to the superannuation fund in accordance with this order, within the time specified, then the other party may (if he or she wishes) pay the whole amount of the principal and the interest liability of the other party. Upon such payment the liability of the non paying party shall be to the paying party with interest to accrue on the paid sum (including interest) calculated in accordance with the rate/s of interest prescribed by the Rules under the Family Law Act 1975 (Cth).

27, 99 and 31 Z Street

Within sixty (60) days of the date of this Order the husband and wife respectively do all such acts and sign all such documents as reasonably required to or for:-

(a) The husband to resign as Director and Secretary of DE Pty Limited.

(b) Transfer to the wife the husband’s entire share holdings in DE Pty Limited.

(d) Transfer to the wife the husband’s interest in the DE Unit Trust.

(e) Appoint the wife and/or her nominee as Appointors of any of the said Trust and for the retirement of the husband and/or any entity in which he is to retain an interest as Appointor.

(f) Transfer to the wife any interest in any Loan Account of the husband or any other entity or entities in DE Pty Limited and the said Trust.

(g) Discharge and/or release the husband from any personal liability relating to any liabilities of DE Pty Limited and the said trust.

(h) Discharge and/or release any entity in which the husband (as a result of these Orders retains any interest) from any liabilities of DE Pty Limited and the said Trust.

(i) Transfer to the wife the C class unit/share held by PG Pty Ltd as Trustee for the P Family Trust in the DE Unit Trust;

(j) Save and except as may be hereinafter provided the wife henceforth (as between the husband and the wife) shall be solely responsible for and indemnify the husband with respect to all liabilities (including but not limited to liabilities to the Australian Taxation Office) of DE Pty Limited and the said trust whether past, present or future and whether actual or contingent. This is provided that the husband has made clear and specific disclosure to the wife of all past or present liabilities of which the husband knew or ought to have reasonably known;

(k) Each party shall bear their own costs of such transfer and if taxes and/or duties are payable then such expenses shall be paid equally.

(l) The wife shall be entitled to all rents and profits in respect of these properties as and from the date of the making of these orders.

The Pilot Superannuation Fund

In calculating the assets of the fund the trustees shall regard the $771,651 plus accrued and accruing interest as an asset of the fund (being the money due to the fund pursuant to order 5 above).

The sub paragraphs of this Order are binding on the Trustees of the fund.

(a) That in accordance with Section 90MT(1)(b) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the fund:-

(i) The wife shall be entitled to fifty (50) per cent of the splittable payment; and

(ii) The husband shall be entitled to fifty (50) per cent of the splittable payment; and

(iii) There shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been paid but for this Order.

(b) That paragraph (a) has effect from the operative time.

(c) The operative time for the purposes of the splittable payment is thirty-two (32) business days from the date of service of this Order upon the Trustee of the fund.

(d)

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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