ROWLEY & TOOMEY - [2019] FCCA 1549

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROWLEY & TOOMEY

[2019] FCCA 1549

Catchwords:
FAMILY LAW – Property – marital relationship – determination of property pool – where the husband made a significant initial financial contribution – where the wife received a significant inheritance during the relationship – whether funds accrued during the relationship and spent post-separation should be ‘added back’ – where the wife has accrued property post-separation – where the husband was the primary income earner and the wife the primary homemaker – determined it is just and equitable for a division of property – consideration of section 75(2) factors.

Legislation:

Family Law Act 1975 (Cth), ss.4, 75, 79

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

Cases cited:

Bevan v Bevan (2013) 279 FLR 1

C v C (2005) FLC 93-220

Dickons v Dickons [2012] FamCAFC 154

Eufrosin v Eufrosin [2014] FamCAFC 191

Lovine v Connor [2012] FamCAFC 168

Norbis v Norbis (1986) 161 CLR 513

Stanford v Stanford (2012) 247 CLR 108

Applicant:

MS ROWLEY

Respondent:

MR TOOMEY

File Number:

MLC 8744 of 2017

Judgment of:

Judge Blake

Hearing dates:

11 & 12 April 2019

Date of Last Submission:

12 April 2019

Delivered at:

Melbourne

Delivered on:

7 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr Sweeney

Solicitors for the Applicant:

Farrar Gesini Dunn

Counsel for the Respondent:

Ms Swart

Solicitors for the Respondent:

J A Middlemis

ORDERS

Within 14 days, the parties do all things necessary to cause the funds held in the interest-bearing investment account held by Farrar Gesini Dunn on behalf of the parties to be distributed as follows:
(a)$14,025 to School A in satisfaction of the 2019 school fees for the children [X] and [Y] (‘children’);
(b)$60,000 to a bank account to be held thereafter on trust for the benefit of the children (‘children’s bank account’) and for the purpose of paying the following expenses for the children:
(i)school fees;
(ii)camps and excursions;
(iii)uniforms and school materials;
(iv)private health insurance;
(v)out-of-pocket expenses for health care and dental care;
(vi)extracurricular activities including hobbies and sports and any other activities agreed between the parties.
(c)the balance to be split between the parties as follows:
(i)68% to the Applicant; and
(ii)32% to the Respondent.
Upon the funds in the children’s bank account being deposited, the parties do all such acts and things as may be required to:
(a)Ensure that the account requires both parties’ signatures to release any funds from the account;
(b)Come to an agreement regarding the use of any money and it be used only for the expenses outlined in order 1(b) herein; and
(c)Divide any funds equally between the parties in the event that there is any funds remaining in the account upon the children completing their secondary education.
The Property B Property and any liabilities associated with it in Pool 2 to remain with the Applicant.
The Motor Vehicle C and the Paintings be sold and the proceeds be split equally between the Applicant and the Respondent.
In…

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 ROWLEY & TOOMEY

Details

AGLC: ROWLEY & TOOMEY [2019] FCCA 1549
Case: [2019] FCCA 1549
Decision Date: 7 June 2019

CaseChat Overview and Summary

This case concerned a property dispute between a husband and wife, heard by Judge Blake. The central issue was the division of their marital assets and liabilities. The husband had made a significant initial financial contribution to the relationship, while the wife received a substantial inheritance during the marriage. The court was required to consider whether funds accrued during the relationship but spent post-separation, and property accrued by the wife post-separation, should be "added back" to the property pool. The court also had to determine a just and equitable division of the property, taking into account the parties' respective roles as primary income earner and primary homemaker, and consider the factors outlined in section 75(2) of the Family Law Act 1975.

The court reasoned that a division of property was just and equitable, applying the principles of property adjustment under the Family Law Act. The court's orders reflected a detailed distribution of assets and liabilities. A significant portion of funds held in an interest-bearing account was allocated to school fees and a trust for the children's future expenses, with the balance split 68% to the Applicant and 32% to the Respondent. Specific properties and assets, including a motor vehicle and paintings, were to be sold and proceeds split equally. The court also made orders for the division of superannuation interests in accordance with the Family Law (Superannuation) Regulations 2001, with a base amount allocated to the Applicant from the Respondent's superannuation. Each party was to retain sole ownership of property in their name, possession, or control, unless otherwise specified, and both parties were to indemnify each other in respect of liabilities. There were no orders as to costs.

Orders

Orders of the court

Within 14 days, the parties do all things necessary to cause the funds held in the interest-bearing investment account held by Farrar Gesini Dunn on behalf of the parties to be distributed as follows:

(a) $14,025 to School A in satisfaction of the 2019 school fees for the children [X] and [Y] (‘children’);

(b) $60,000 to a bank account to be held thereafter on trust for the benefit of the children (‘children’s bank account’) and for the purpose of paying the following expenses for the children:

(i) school fees;

(ii) camps and excursions;

(iii) uniforms and school materials;

(iv) private health insurance;

(v) out-of-pocket expenses for health care and dental care;

(vi) extracurricular activities including hobbies and sports and any other activities agreed between the parties.

(i) 68% to the Applicant; and

(ii) 32% to the Respondent.

Upon the funds in the children’s bank account being deposited, the parties do all such acts and things as may be required to:

(a) Ensure that the account requires both parties’ signatures to release any funds from the account;

(b) Come to an agreement regarding the use of any money and it be used only for the expenses outlined in order 1(b) herein; and

(c) Divide any funds equally between the parties in the event that there is any funds remaining in the account upon the children completing their secondary education.

The Property B Property and any liabilities associated with it in Pool 2 to remain with the Applicant.

The Motor Vehicle C and the Paintings be sold and the proceeds be split equally between the Applicant and the Respondent.

In accordance with section 90XT(4) of the Family Law Act 1975 (‘Act’), a base amount of $156,743.10 is allocated to the Applicant out of the Respondent’s interest in his Super Fund D Account, member number ….

In accordance with section 90XT(1)(a) of the Act:

(a) the Applicant is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;

(b) the entitlement of the Respondent in the Super Fund D Account (or the entitlement of such other person who becomes entitled to receive a payment out of the Respondent’s superannuation interest) is correspondingly reduced by force of this Order; and

The Trustee of the Super Fund D Fund (‘the Trustee’) shall do all such acts and things and sign all such documents as may be necessary to:

(a) calculate, in accordance with the requirements of the Act, the entitlement awarded to the Applicant in the immediately preceding clause of this Order; and

(b) pay the entitlement whenever the Trustee makes a splittable payment from the Respondent’s interest in the Super Fund D Fund.

Unless otherwise provided by these Orders, the Applicant be entitled to be the sole legal and beneficial owner of all items of property including real property, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects in her name, possession or control.

Unless otherwise provided by these orders the Respondent be entitled to be the sole legal and beneficial owner of all items of property including real property, money, motor vehicles, insurances, equities, superannuation entitlements, and personal effects in his name, possession or control.

10.

The Applicant indemnify the Respondent in respect of all liabilities in her sole name or jointly with any other person, including but not limited to any credit card debt in her sole name or jointly with another person, and any loan or debt to any financial institution or other person in her sole name or jointly with another person.

11.

The Respondent indemnify the Applicant in respect of all liabilities in his sole name or jointly with any other person, including but not limited to, any credit card debt in his sole name or jointly with another person, or any loan or debt to any financial institution in his sole name jointly or with another person.

12.

There be no order as to costs.

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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