FAMILY COURT OF AUSTRALIA
Rabino & Rainsford (No. 2) [2021] FamCA 551
File number(s): BRC 4468 of 2019 Judgment of: BAUMANN J Date of judgment: 29 July 2021 Catchwords: FAMILY LAW – PROPERTY – Dispute as to what constitutes the pool of interests – non-vested severance pay – ‘add back” for alleged excessive post separation expenditure – further submissions as to what orders achieve justice and equity required Legislation: Family Law Act 1975 (Cth) ss 79, 75 Cases cited: Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Chorn & Hopkins (2004) FLC 93-204
Clauson & Clauson (1995) FLC 92-595
Hickey & Hickey (2003) FLC 93-143
Line and Line (1997) FLC 92-729
M & M [1998] FamCA 42
Omacini & Omacini (2005) FLC 93-218
Rabino & Rainsford [2020] FamCA 142
Rix & Rix [2020] FamCA 165
Sand & Sand [2012] FamCAFC 179
Stanford & Stanford (2012) 247 CLR 108
Townsend & Townsend (1994) 18 Fam LR 505
Trevi & Trevi (2018) FLC 93-858
Watson & Ling (2013) FLC 93-527
Number of paragraphs: 89 Date of last submission/s: 15 May 2020 Date of hearing: 14 and 15 May 2020 Place: Brisbane Counsel for the Applicant: Mr P Hackett Solicitor for the Applicant: Hirst & Co Counsel for the Respondent: Mr R Maurice Solicitor for the Respondent: Fox & Staniland Lawyers ORDERS
BRC 4468 of 2019 BETWEEN: MS RABINO
Applicant
AND: MR RAINSFORD
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
29 JULY 2021
THE COURT ORDERS:
1.That these proceedings be adjourned for pronouncement of final property orders at 10.00am on 18 August 2021, for further submissions and if possible the pronouncement of orders, in the Family Court of Australia at Brisbane.
2.That within seven (7) days of the date of this Order, the wife provide to the husband’s solicitors a draft minute of order consistent with the Reasons for Judgment delivered 29 July 2021.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rabino & Rainsford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION:
The property dispute between the Applicant wife, Ms Rabino, and the Respondent husband, Mr Rainsford, raises some interesting and unusual issues about what interests exist and are available for division or alteration by Court order. As these Reasons demonstrate, some of those issues arise from the somewhat unique employment of the husband overseas, and some are from the fact that although the parties separated, I find, around December 2016, evidentially since the wife and the children returned to Australian in January…
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- Case
- [2021] FamCA 551
- Decision Date
CaseChat Overview and Summary
The court was required to determine the legal characterisation of the husband's prospective severance pay. Specifically, it had to decide whether this entitlement, which had not yet vested, should be treated as property to be included in the asset pool for division, or as a financial resource to be considered under section 75(2) of the *Family Law Act 1975* (Cth). Additionally, the court needed to assess whether the husband's post-separation expenditure of his income warranted an "add back" to the asset pool, thereby reducing his share.
Baumann J reasoned that the husband's severance pay entitlement, while not yet vested, was a certain future event contingent upon the cessation of his employment. Distinguishing the facts from *Sand & Sand* [2012] FamCAFC 179, the court found that the entitlement, based in part on years of service accumulated both before and after separation, should not be ignored. Consequently, the court determined that the gross severance payment of approximately $547,635 should be included in the property pool. Regarding the "add back" of post-separation expenditure, the court noted the wife's contentions regarding the husband's income and withdrawals, but ultimately concluded that the husband had not engaged in conduct that would justify an add-back, particularly given his ongoing support of the family unit and the wife's own income.
The proceedings were adjourned for the pronouncement of final property orders, with directions for the wife to provide draft minutes of order consistent with the court's reasons.
Orders
Orders of the court
BRC 4468 of 2019
BETWEEN:
MS RABINO
Applicant
AND:
MR RAINSFORD
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
29 JULY 2021
THE COURT ORDERS:
1. That these proceedings be adjourned for pronouncement of final property orders at 10.00am on 18 August 2021, for further submissions and if possible the pronouncement of orders, in the Family Court of Australia at Brisbane.
2. That within seven (7) days of the date of this Order, the wife provide to the husband’s solicitors a draft minute of order consistent with the Reasons for Judgment delivered 29 July 2021.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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
Ratio Decidendi
Legal Principle Established
As a result, no LOJA payment will be included in the pool of assets.ADDBACK FROM HUSBAND’S POST SEPARATION INCOME The husband’s evidence as to post separation income available to him is:(a)his income during the period from separation (taken to be December 2016) was $1,326,400;(b)after identifying what he had paid towards the maintenance of the wife and expenses for the family home (including the mortgage), he estimated that he had paid a total for the period of $517,578 for the wife’s benefit; and(c)he paid school fees for Mr P of $76,508 and for Ms O of $62,098. At paragraph 227, the husband calculated that he therefore “had income of $670,276 since December 2016 to use for my own expenses, including the support of my wife and adult daughter”. As a matter of law, the husband has no legal duty to support Ms O who, at the time of the hearing was an adult and was living in the United Kingdom. She was estranged from her mother at the time. The husband has a duty to support his new wife who lives in the United Kingdom. Mr Hackett submits that the husband has not made full disclosure about the circumstances of their cohabitation. The husband, for example, did not complete Part E or Part F of his Financial Statement affirmed 24 April 2020. He denied his new wife was “wealthy”. Although he had significant credit card liabilities, (totalling approximately $100,000 – see Item 51) at Item 30, his payments of $1,835 per week are higher than the minimum payment required. This is not a case where it can be asserted the husband, whilst generating a steady and good income, did not continue post separation to support the family unit. Furthermore, the wife had, at her disposal, the use of her income of approximately $1,247 per week nett (see her Financial Statement filed 7 May 2020). Over the period since separation to trial, I estimate the wife’s income would have been approximately $200,000 over that period. In final submissions, Counsel for the wife contends that:(a)as revealed in Exhibit 7, the husband’s solicitor by letter dated 29 May 2018 (two years before the hearing), on instructions, informed the wife’s solicitors, summarised at paragraph 7(b)(vi) the following distributions on a monthly basis from the husband’s income:Typically that gives the following:1.Typical pay – 95,700 [LCY]2.Paid to Australia – 82,718 [LCY] (Average)3.Expenses per month – 4,500 [LCY] (Average)4.Remainder = 9,022 [LCY] or $3,176 for travel and other recreational expenses.(b)the husband withdrew cash during the period, often at ATMs at work, totalling $216,654.43 (see Exhibit 6);(c)on the basis of these figures, the wife submits that approximately $370,000 of post separation income available to the husband has been used by the husband without any reasonable explanation, being: On the basis of the husband’s most recent Financial Statement, he has accumulated $100,000 in credit card liabilities with no discernible increase in liquid funds. The total personal expenditure above ($82,280 + $216,654) amounts to approximately $300,000 over 40 months or about 172 weeks, equating to a weekly spend (additional to payments to Australia as allowed) of $1,744 per week. The husband (at Item 32) estimated, without any details, his “other expenditure” of $4,459 per week which is much higher than the allowance the wife is prepared to concede of $1,744 per week.