FAMILY COURT OF AUSTRALIA
| RADCLIFF & RADCLIFF | [2020] FamCA 165 |
| FAMILY LAW – PROPERTY – Where the husband received share rights as an employment-related benefit – Where shares have not yet vested – Where the wife contends that unvested shares are property and not financial resources – Where the vesting of the shares is contingent on conditions being met – Where the company board has a broad discretion in respect to vesting – Where the Court determines that the unvested shares are not property but a financial resource. FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the parties seek orders for an adjustment of the matrimonial property – Where the wife asserts that the husband is capable of earning a greater income – Where the husband previously earned a significant income throughout the marriage – Where the husband is focusing on a start-up business and has not returned to paid workforce after redundancy – Where the children reside with the husband – Where the husband is now the children’s primary carer – Where the Court determines that the husband is entitled to continue role as parent – Where the Court determines that the husband’s post-separation care of the children is greater than the wife’s – Where the wife has not paid child support to the husband – Adjustment made in favour of the husband. |
| Evidence Act 1995 (Cth) s 76(1) Family Law Act 1975 (Cth) ss 4(1), 75(2), 79, 79(4), 80, 80(1), 117 |
| Antmann & Antmann (1980) FLC 90-908 Johnston & Johnston [2003] FamCA 747 Mallet v Mallet (1984) 156 CLR 605 Nielson & Nielson [2012] FamCA 70 Ogilvie v Adams [1981] VR 1041 Paskin & Laurence [2018] FamCA 554 Petruski & Balewa [2013] FamCAFC 15 Shakir & Shakir [2014] FamCA 796 Shaw & Shaw (1989) FLC 92-030 |
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- AGLC
- RADCLIFF & RADCLIFF [2020] FamCA 165
- Case
- [2020] FamCA 165
- Decision Date
CaseChat Overview and Summary
The court determined that the unvested shares were not property but a financial resource. This was because the vesting of these shares was contingent on conditions being met, and the company board retained a broad discretion regarding their vesting. In relation to the property adjustment, the court found that the husband was entitled to continue in his role as the children's primary parent, noting that his post-separation care of the children was greater than the wife's. The court also took into account that the wife had not paid child support to the husband.
The court ordered that the husband pay the wife the sum of $988,020 within 14 days. Further orders directed the closure of a specific bank account, with the funds to be distributed to the wife in partial satisfaction of this sum. Each party was to retain sole legal and beneficial entitlement to other assets and financial resources in their possession, and to be indemnified against liabilities associated with those assets. Both parties were to retain their respective superannuation entitlements, foregoing any claims on each other's superannuation. The Registrar of the Federal Circuit Court at Wollongong was appointed to execute documents if either party failed to comply with the orders. The parties were granted liberty to apply in respect to costs.
Orders
Orders of the court
1.
That within 14 days the husband pay to the wife or at her direction the sum of $988,020.
2.
That within 14 days the parties do all acts and things and sign all documents necessary to close the D Bank offset account number …4-7 and the funds in this account at the date of closure shall be distributed to the wife in partial satisfaction of the sum payable pursuant to Order 1.
3.
That unless otherwise specified in these Orders, each party shall be solely legally and beneficially entitled to all other assets and financial resources in their sole name, possession or control, and will indemnify the other and keep them indemnified in respect of any liabilities in their sole name, and any liabilities associated with any asset which they are to retain pursuant to these Orders.
4.
That the wife shall retain all her superannuation entitlements and the husband shall forego any claim that he may have on the superannuation benefits belonging to or earned by the wife.
5.
That the husband shall retain all his superannuation entitlements and the wife shall forego any claim that she may have on the superannuation benefits belonging to or earned by the husband.
6.
That pursuant to s 106A of the Family Law Act 1975 (Cth), the Registrar of the Federal Circuit Court at Wollongong is appointed to execute any documents required to be completed to give effect to these Orders in the event either party fails, refuses or neglects to comply with any Order herein.
7.
The parties have liberty to apply in respect to the question of costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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