RAINFORD & RAINFORD - [2020] FamCA 945

FAMILY COURT OF AUSTRALIA

RAINFORD & RAINFORD

[2020] FamCA 945

FAMILY LAW – PROPERTY – Property Adjustment – Where discussion of applicable principles – Relevance of wife’s prospective inheritance – Where parties concede it appropriate to make adjusting orders – Where appropriate to consider a final adjusted pool for division – Where s 75(2) factors considered – Where husband will retain prospective CGT property liabilities – Where not appropriate to further adjust contribution based findings – Where orders made that pool be divided as to 52.5 per cent to the wife and 47.5 per cent to the husband.

Family Law Act 1975 (Cth) ss 75, 79

Bevan & Bevan (2014) FLC 93-572
Chapman & Chapman (2014) FLC 93-592
Dickons & Dickons (2012) 50 Fam LR 244
Eufrosin & Eufrosin [2014] FamCAFC 191
L & L [2004] FamCA 1010
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
White & Tullochv White (1995) FLC 92-640

APPLICANT:

Ms Rainford

RESPONDENT:

Mr Rainford

FILE NUMBER:

PAC

2577

2018

DATE DELIVERED:

13 November 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

28, 29 and 30 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Macpherson

SOLICITOR FOR THE APPLICANT:

Lewarne & Goldsmith

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Consort Family Law

Orders

The respondent husband within a period of 90 days to do all acts and things necessary to transfer to the applicant wife all of his right, title and interest in and to property situate and known as B Street, Suburb C in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier … and concurrently with such transfer the wife do all things necessary to refinance or discharge the present mortgage encumbrance secured over the said property so as to release the husband from any liability therefore.
Simultaneously with Order 1 above, the applicant wife do all things necessary to transfer all of her right, title and interest in and to property situate and known as Unit D Street, Suburb E in the State of Victoria and concurrently with the said transfer the respondent husband shall do all acts and things necessary to refinance any the Suburb E mortgage encumbrance secured over or relating to the said property so as to release the wife from any liability therefore.
Simultaneously with compliance with Order 1, the respondent husband pay to the applicant wife the sum of $123,330.
The wife transfer to the husband her interest in the joint Westpac Equity Access Acct #...30.

Superannuation Split

That in accordance with s 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable from the husband's interest in the Super Fund 1 Policy Number …12, the trustee shall pay to the wife or her legal/personal representation an amount calculated in accordance with Part 6 of the Family…

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.

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Details

AGLC: RAINFORD & RAINFORD [2020] FamCA 945
Case: [2020] FamCA 945
Decision Date: 13 November 2020

CaseChat Overview and Summary

In *Rainford & Rainford*, Foster J of the Family Court of Australia was required to determine property adjustment orders between the applicant wife and the respondent husband. The dispute concerned the division of the parties' assets and liabilities, with a specific consideration given to the wife's prospective inheritance and the husband's prospective Capital Gains Tax liabilities. The parties had conceded that adjusting orders were appropriate and that a final adjusted pool for division should be considered.

The court was tasked with determining the appropriate division of the parties' property pool, taking into account various factors under section 75(2) of the *Family Law Act 1975*. This included assessing the relevance of the wife's prospective inheritance and the husband's potential Capital Gains Tax liabilities on certain properties. The court needed to decide how these factors should influence the final property adjustment and whether any further adjustment beyond contribution-based findings was warranted.

Foster J reasoned that while the wife's prospective inheritance and the husband's prospective CGT liabilities were relevant considerations, the court should not further adjust the contribution-based findings. The court ultimately ordered a division of the property pool as to 52.5 per cent to the wife and 47.5 per cent to the husband. The orders detailed the transfer of specific properties between the parties, the refinancing or discharge of associated mortgages, a monetary payment from the husband to the wife, and a superannuation split in accordance with the *Family Law (Superannuation) Regulations 2001*. The parties were ordered to retain other assets and liabilities to their exclusion, with provisions made for the Registrar to sign documents if a party refused to do so.

Orders

Orders of the court

The respondent husband within a period of 90 days to do all acts and things necessary to transfer to the applicant wife all of his right, title and interest in and to property situate and known as B Street, Suburb C in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier … and concurrently with such transfer the wife do all things necessary to refinance or discharge the present mortgage encumbrance secured over the said property so as to release the husband from any liability therefore.

Simultaneously with Order 1 above, the applicant wife do all things necessary to transfer all of her right, title and interest in and to property situate and known as Unit D Street, Suburb E in the State of Victoria and concurrently with the said transfer the respondent husband shall do all acts and things necessary to refinance any the Suburb E mortgage encumbrance secured over or relating to the said property so as to release the wife from any liability therefore.

Simultaneously with compliance with Order 1, the respondent husband pay to the applicant wife the sum of $123,330.

The wife transfer to the husband her interest in the joint Westpac Equity Access Acct #...30.

Superannuation Split

That in accordance with s 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable from the husband's interest in the Super Fund 1 Policy Number …12, the trustee shall pay to the wife or her legal/personal representation an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $124,185 and that there be a corresponding reduction in the entitlement that the husband's share would have in the superannuation fund but for these orders.

That the Trustee of the Super Fund 1 (the trustee) shall do all acts and things and sign all documents as may be necessary to:

(a) Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement of the wife created by Order 4 of this Order; and

(b) Pay the entitlement whenever the Trustee makes a splittable payment out of the Husband's interest in the Super Fund 1 Fund

That order 4 has effect from the operative time and the operative time is four (4) business days after service of the Orders on the Trustee.

That after service of the payment split notice required pursuant to regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all acts and things and sign all documents as may be necessary, including but not limited to, exercising her request pursuant to Regulation 7A.06 (1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband's interest in Super Fund 1 to a fund of the wife's choosing in accordance with Regulation 7A.12 Superannuation Industry (Supervision) Regulations 1994.

The Court notes that:

(a) The value of the transferable benefit from the husband's interest into the wife's interest is calculated in accordance with Regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994;

(b) Pursuant to Regulation 14F of the Family Law (Superannuation) Regulations 2001, any payments from the wife's superannuation interest in the Super Fund 1 made after the trustee has created a new interest in the wife's name in the Super Fund 1 as contemplated by Clause 4 of this Order are not splittable payments; and

(c) The Trustee will be relieved of its obligations to calculate and split payment under Clause 4 of this Order in the event that the transferable benefit are transferred to a fund of the wife's choosing in accordance with the requirements under Superannuation Industry (Supervision) Regulations 1994.

10.

That the applicant wife shall, otherwise, retain to the exclusion of the respondent husband all assets in the applicant wife's name and possession or in trust for the child (Westpac Bank #...98 and Westpac Equities Account #...26) including her Bank Accounts, Motor Vehicle 1, Superannuation and Shares and the Applicant Wife shall be, otherwise, responsible for any liability solely in her name.

11.

Except as otherwise provided for herein these Orders, the respondent husband shall otherwise retain to the exclusion of the applicant wife all Bank Accounts in the husband's name, his shares, Motor Vehicle 2 Registration …, interest in F Pty Ltd, the properties situate at and known as G Street, Suburb H and J Street, Suburb H and the respondent husband shall, otherwise, be responsible for any liability in his name including registered mortgages secured over the properties at Suburb H.

12.

In the event either party refuses to sign any document necessary to give effect to these Orders, then the Registrar of the Family Court of Australia shall sign any document required to give effect to these Orders pursuant to Section 106A of the Family Law Act 1975.

13.

Liberty to apply as to implementation or enforcement of these orders.

14.

All outstanding applications be dismissed.

15.

The matter be removed from the active pending cases list.

16.

All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

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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