Riddler and Riddler and Ors - [2015] FamCA 436

FAMILY COURT OF AUSTRALIA

RIDDLER & RIDDLER AND ORS

[2015] FamCA 436

FAMILY LAW – PROPERTY – Final Orders – Whether a property owned by the husband is beneficially owned by the husband’s parents – Where the husband has an interest in properties overseas – Whether efforts have been made to remove assets from the control of the wife – Whether a Deed of Loan and Tenancy Agreement should be set aside pursuant to s 106B of the Act – Where the husband made significant financial contributions – Where an adjustment is made in favour of the wife under s 75(4).

FAMILY LAW – SPOUSE MAINTENANCE – Where the wife seeks a lump sum payment for spouse maintenance – Where there is no asset available against which such an order could be made – Where the application is dismissed.
FAMILY LAW – CHILD SUPPORT– Where the wife seeks a child support departure order – Where special circumstances warrant a child support departure order be made – Where it is impossible to identify the income of the husband – Where the making of a child support departure order would not cause hardship.

Family Law Act 1975 (Cth) ss 75(2), 75(4), 79(2), 106B

Child Support (Assessment) Act 1989 (Cth) s 117

Calverleyv Green (1984) 155 CLR 242
In the Marriage of Gyselman (1991)15 Fam LR 219
Charles Marshall Pty Limited v Grimsley [1956] HCA 28; (1956) 95 CLR 353
Kawada & Kawada & Ors [2012] FamCA 273
Chorn & Hopkins (2004) FLC 93-204

APPLICANT:

Ms A Riddler

1st RESPONDENT:

Mr B Riddler

2nd RESPONDENT:

Mr C Riddler

3rd RESPONDENT:

Ms D Riddler

FILE NUMBER:

WOC

302

2013

DATE DELIVERED:

27 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

30 September 2014,
1-2 October 2014 and
16-17 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

SOLICITOR FOR THE APPLICANT:

Reid Family Lawyers

COUNSEL FOR THE 1ST RESPONDENT:

Mr Blackah

SOLICITOR FOR THE 1ST RESPONDENT:

Searle & Associates Lawyers Pty Ltd

COUNSEL FOR THE 2ND RESPONDENT:

Mr Gould

SOLICITOR FOR THE 2ND RESPONDENT:

Godden Lawyers

COUNSEL FOR THE 3RD RESPONDENT:

Mr Gould

SOLICITOR FOR THE 3RD RESPONDENT:

Godden Lawyers

Orders

That pursuant to section 106B of the Family Law Act 1975 (Cth) (“the Act”):
(a)The Deed of Loan Agreement between Mr C Riddler, Ms D Riddler and Mr B Riddler dated 23 November 2010; and
(b)The Residential Tenancy Agreement between Mr C Riddler, Ms D Riddler and Mr B Riddler dated 28 July 2012
be set aside.
The Court declares that Mr B Riddler is the beneficial owner of the Unique Shares No’s … in E Property .
That within fourteen (14) days of the date of these orders, the husband shall do all things and sign all documents to sell his shares in E Property (which give the right to occupy the property F Street, Suburb G), being Unique No’s … and for the purpose of implementing that sale the parties shall…

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 Riddler and Riddler and Ors

Details

AGLC: Riddler and Riddler and Ors [2015] FamCA 436
Case: [2015] FamCA 436
Decision Date: 27 February 2015

CaseChat Overview and Summary

In the matter of *Riddler and Riddler*, Aldridge J of the Federal Circuit and Family Court of Australia was required to determine a dispute between Mr C Riddler (husband), Ms D Riddler (wife), and Mr B Riddler. The proceedings concerned the setting aside of a deed of loan agreement and a residential tenancy agreement, the beneficial ownership of certain shares in E Property, and the sale and distribution of proceeds from a property located at F Street, Suburb G. The wife's application for spousal maintenance was also before the court.

The court was tasked with determining whether to set aside the loan and tenancy agreements pursuant to section 106B of the *Family Law Act 1975* (Cth). Further issues included declaring the beneficial ownership of specific shares in E Property and making orders for the sale of the husband's shares in the F Street property, including the method of sale, appointment of agents, and disbursement of sale proceeds. The court also had to consider the wife's claim for spousal maintenance and make orders regarding the parties' respective liabilities for debts and the assessment of child support.

Aldridge J ordered that the deed of loan agreement and the residential tenancy agreement be set aside. The court declared Mr B Riddler to be the beneficial owner of the specified shares in E Property. The husband was ordered to sell his shares in the F Street property within four months, with detailed provisions for listing, agent appointment, and sale procedures, including a reserve price mechanism. The proceeds of sale were to be applied first to sale costs, then to discharge encumbrances, capital gains tax, with the balance distributed 71% to the wife and 29% to the husband. The wife's application for spousal maintenance was dismissed. The parties were ordered to retain other property in their sole possession and to indemnify each other for debts, with specific indemnities provided by the husband to the wife. Finally, child support payments were varied, with the husband to pay $500 per week per child and 100% of specified educational, sporting, and medical expenses for the children.

Orders

Orders of the court

That pursuant to section 106B of the Family Law Act 1975 (Cth) (“the Act”):

(a) The Deed of Loan Agreement between Mr C Riddler, Ms D Riddler and Mr B Riddler dated 23 November 2010; and

(b) The Residential Tenancy Agreement between Mr C Riddler, Ms D Riddler and Mr B Riddler dated 28 July 2012

be set aside.

The Court declares that Mr B Riddler is the beneficial owner of the Unique Shares No’s … in E Property .

That within fourteen (14) days of the date of these orders, the husband shall do all things and sign all documents to sell his shares in E Property (which give the right to occupy the property F Street, Suburb G), being Unique No’s … and for the purpose of implementing that sale the parties shall do the following:

(a) List the property for sale by public auction, such auction is to occur within four (4) months of the making of these orders at a price to be agreed between the parties and failing such agreement at a price, or at a reserve price, nominated by the President of the New South Wales Division of the Australian Property Institute and his/her nominee;

(b) Forthwith appoint such real estate agent and auctioneer, as the parties may agree and failing agreement within fourteen (14) days, list the property with such agent and auctioneer nominated by the President of the New South Wales Division of the Australian Property Institute (“the Agent”), the costs of and incidental to such appointment to be borne equally by the parties as and when they fall due.

(c) The parties shall each co-operate in every way with the Agent including (without limiting the generality the foregoing):

(i) making the keys available to the Agent;

(ii) allowing inspection of the property at all reasonable times as required by the Agent;

(iii) not do or say anything to hinder or prevent a sale being effected;

(iv) ensuring that the property including the grounds are in a neat, fit state of repair and tidy condition at the time of the inspection by the Agent and prospective purchasers;

(v) sign all documents as requested by the Agent in relation to the listing for sale of the property except contracts or agreements for sale which have not been authorised by the parties’ solicitors;

(vi) the parties shall each execute the contract for sale on the forms prepared by the solicitors having the conduct of the sale at a price or reserve price agreed upon by the parties or in the absence of any agreement at or above the price nominated by the President of New South Wales Division of the Australian Property Institute;

(vii) the parties shall do all things and sign all documents necessary to instruct a solicitor or licensed conveyancer, within seven (7) days of the date of these orders, to have the primary conduct of the sale on behalf of both parties and, failing agreement, such solicitor or conveyancer as nominated by the President of the New South Wales Division of the Australian Property Institute.

(viii) that any costs payable to the solicitors will be and form part of the legal costs of the sale to be deducted from the proceeds of sale.

(ix) neither party may confer upon any agent without the consent of the other party any right, or sole or exclusive agency in respect to the property or to any commission.

(d) That the husband is to vacate the Suburb G property at least seven (7) days prior to settlement.

(e) The proceeds of the sale shall be disbursed as follows:

(i) in payment of the usual costs associated with such sale including Agent’s commission, legal costs and disbursements;

(ii) in discharge of any mortgage or other encumbrances held over the property;

(iii) in discharge of any capital gains tax liability incurred on the sale of the property (and for the purpose of effecting such a payment the solicitor acting on the conveyance for the parties shall calculate and retain a sum sufficient for payment of the Capital Gains Tax);

(iv) the balance is to be distributed, as to 71 per cent to the wife and 29 per cent to the husband.

That wife’s application for a lump sum payment of spousal maintenance is dismissed.

That other than as provided by these orders, the parties shall retain to the exclusion of the other, all property in their sole name, possession and control, including their superannuation entitlements.

The parties shall indemnify the other and keep the other forever indemnified and shall be solely liable for all debts in their sole name or for which they are jointly liable with any other person and the husband is to indemnify the wife against any liability to Credit Corporation Limited, Alphera Finance Limited Commonwealth Bank of Australia other than in relation to account …, National Australia Bank other than the account in her name, Macquarie Bank, Citibank or Westpac Banking Corporation.

Pursuant to section 117 of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the administrative assessment of child support payable by the husband to the wife in respect of the children as follows:

(a) From the date of this order, the weekly rate of periodic child support payable by the husband to the wife in respect of the children be $500 per child; and

(b) From the date of this order, by way of non-periodic child support, the husband pay 100 per cent of the costs of:

(i) School fees and the costs of all school uniforms, stationery, books, excursions and all other associated costs with the childrens’ attendance at school;

(ii) The cost of participation by each of the children in swimming and one winter and one summer sport and any other agreed extra-curricular activities of the children;

(iii) Monthly premiums for private health insurance for the children;

(iv) Gap medical expenses for each of the children.

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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