Richard and Richard - [2018] FCCA 55

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICHARD & RICHARD

[2018] FCCA 55

Catchwords:
FAMILY LAW – Property – whether one party is in possession of a cash sum – assets disposed of post-separation – add-backs.

Legislation:

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

Cases cited:

Bevan & Bevan (2013) FLC ¶93-545

McMahon & McMahon (1995) FLC ¶92-606

Norbis v Norbis (1986) FLC ¶91-712

Polonius &York [2010] FamCAFC 228

Stanford & Stanford (2012) 247 CLR 108

Vass & Vass [2015] FamCAFC 51
Zalewski &Zalewski (2005) FLC ¶93-241

Applicant:

MR RICHARD

Respondent:

MS RICHARD

File Number:

HBC 512 of 2015

Judgment of:

Judge Baker

Hearing dates:

1 December 2017, 19 December 2017

Date of Last Submission:

19 December 2017

Delivered at:

Hobart

Delivered on:

17 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr Trezise

Solicitors for the Applicant:

Dobson Mitchell Allport

Counsel for the Respondent:

Ms Mooney of Counsel

Solicitors for the Respondent:

Wallace Wilkinson & Webster

ORDERS

The Husband shall do all acts and things required to transfer to the wife all his right, title and interest in the former matrimonial home situate at Property A in Tasmania more particularly described in Certificate of Title Volume (omitted).
The Husband and the Wife shall do all acts and things required to transfer the sum of $75,200.00 from the (omitted bank account) in the joint names of the parties to an account of the Husband’s choosing, with the balance to be transferred to an account of the Wife’s choosing, and shall then cause the closure of the said (omitted bank account).
That save as it otherwise specifically provided for in this Order the Wife shall relinquish to the Husband and where necessary transfer to him any claim or interest which she may have in or to:
(a)Any motor vehicle or motorcycle in the Husband’s possession and/or registered in his name;
(b)All cash at bank or invested in the sole name of the Husband;
(c)All personalty, chattels, tools, furniture and effects in the Husband’s name or in his possession;
The Husband shall relinquish to the Wife and where necessary transfer to her any claim or interest which he may have in or to:
(a)The business known as the Business A.
(b)Any motor vehicles in the Wife’s possession and/or registered in his name;
(c)All cash at bank or invested in the sole name of the Wife;
(d)All personalty, chattels, tools, furniture and effects in the Wife’s name or in her possession.
That unless otherwise specified in this Order:
(a)Each party shall be solely liable for and indemnify the other against any liability encumbering any form of property to which that party is entitled pursuant to this Order;
(b)Each party shall be liable for their respective debts and hereby releases the other from any and all personal debts owing or alleged to be owed one to the other.
Each of the parties shall do all such things and execute all such documents as they shall be required to do and execute to give effect to…

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 Richard and Richard

Details

AGLC: Richard and Richard [2018] FCCA 55
Case: [2018] FCCA 55
Decision Date: 17 January 2018

CaseChat Overview and Summary

This matter concerned an application for final property orders between Mr Richard (the Husband) and Ms Richard (the Wife), heard by Judge Baker. The dispute involved the division of the parties' assets and liabilities following their separation, including the former matrimonial home, bank accounts, personal property, and superannuation interests.

The court was required to determine how the parties' property and financial resources should be divided and to make orders to give effect to that division. Specifically, the court needed to address the transfer of the former matrimonial home, the distribution of funds from a joint bank account, the allocation of various personal assets and debts, and the division of the Husband's superannuation interest.

Judge Baker made orders for the transfer of the former matrimonial home to the Wife and the distribution of funds from a joint bank account. The parties were to relinquish claims to certain personal property and motor vehicles in the other's possession, with each party to be solely liable for liabilities encumbering property they received and for their respective debts. Crucially, the court ordered that a base amount of $37,950.00 be allocated to the Wife from the Husband's superannuation interest, with the trustee of the superannuation fund to pay this amount to the Wife upon splittable payments being made to the Husband.

Orders

Orders of the court

The Husband shall do all acts and things required to transfer to the wife all his right, title and interest in the former matrimonial home situate at Property A in Tasmania more particularly described in Certificate of Title Volume (omitted).

The Husband and the Wife shall do all acts and things required to transfer the sum of $75,200.00 from the (omitted bank account) in the joint names of the parties to an account of the Husband’s choosing, with the balance to be transferred to an account of the Wife’s choosing, and shall then cause the closure of the said (omitted bank account).

That save as it otherwise specifically provided for in this Order the Wife shall relinquish to the Husband and where necessary transfer to him any claim or interest which she may have in or to:

(a) Any motor vehicle or motorcycle in the Husband’s possession and/or registered in his name;

(b) All cash at bank or invested in the sole name of the Husband;

The Husband shall relinquish to the Wife and where necessary transfer to her any claim or interest which he may have in or to:

(a) The business known as the Business A.

(b) Any motor vehicles in the Wife’s possession and/or registered in his name;

(d) All personalty, chattels, tools, furniture and effects in the Wife’s name or in her possession.

That unless otherwise specified in this Order:

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

(b) Each party shall be liable for their respective debts and hereby releases the other from any and all personal debts owing or alleged to be owed one to the other.

Each of the parties shall do all such things and execute all such documents as they shall be required to do and execute to give effect to the terms of this Order.

In accordance with section 90MT(4) of the Family Law Act 1975 (Cth) (‘the Act’), a base amount of $37,950.00 will be allocated to the Wife, Ms Richard, out of the interest of the Husband, Mr Richard, in the (omitted superannuation account)

Pursuant to section 90MT(1)(a) of the Act, whenever the Trustee of (omitted superannuation account) makes a splittable payment in respect of the Husband’s interest in (omitted superannuation account) the Trustee will:

(a) Pay to the Wife or her legal and personal representatives the entitlement to calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

(b) Make a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order.

The operative time for paragraph 7 above is four (4) business days after the service of a certified copy of this Order on the trustee of (omitted superannuation account).

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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