Ryland & Ryland & Anor - [2018] FamCA 134

FAMILY COURT OF AUSTRALIA

RYLAND & RYLAND AND ANOR

[2018] FamCA 134

FAMILY LAW – PROPERTY SETTLEMENT – Adjustment of interest – Where the wife has absconded internationally with two of the children and refuses to participate in the proceedings – Where the matter proceeds on an undefended basis – Consideration of Family Law Act 1975 (Cth) (as amended) principles per ss 79(4), 75(2) – Meaning of “property” is defined in the Family Law Act 1975 (Cth) in s 4(1) – Where the husband seeks to retain the family home – Where the husband is facing further litigation costs to pursue the children who are abroad with the wife – Where the husband is paying child support – Orders for settlement of property

FAMILY LAW – PROPERTY – Where a creditor to a party seeks to be paid – Where the creditor has obtained a judgment debt – Whether there is a particular lien or an equitable lien – Where an assessment of costs is to be undertaken

Family Law Act 1975 (Cth) ss 4(1), 75(2), 75(2)(o), 79, 79(2), 79(4), 79(4)(e), 90MT(1)(a), 90MT(4), 90MZD
Deputy Commisioner of Taxation v Kliman & Kliman [2002] FLC 93-113 Ex partePatience; Makinson v The Minister (1940) SR (NSW) 96 Grogan & Orr [2001] NSWCA 114 Jackson & Richards [2005] NSWSC 630 Martin & Martin [2015] FamCA 260 Scammell & Co v WorkCcover Corporation & Anor [2006] SASC 258 Stanford v Stanford (2012) 247 CLR 108 Zdravkovic & Zdravkovic (1982) FLC 91-220
APPLICANT:	Ms Ryland

RESPONDENT:

Mr Ryland

INTERVENOR:

K Lawyers

FILE NUMBER:

ADC

3889

2016

DATE DELIVERED:

7 March 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

5 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Reynolds

SOLICITOR FOR THE RESPONDENT:

Southern Vales Legal

COUNSEL FOR THE INTERVENOR:

Mr Hemsley

SOLICITOR FOR THE INTERVENOR:

K Lawyers

Orders

That in full and final settlement of all claims that either party has against the other for property settlement pursuant to the provisions of the Family Law Act 1975 (Cth) (as amended) (“the Act”):-
(a)That on or before sixty (60) days from the date of this order the husband do pay to the wife the sum of EIGHTY SIX THOUSAND FIVE HUNDRED AND FOUR DOLLARS ($86,504) in the following manner:
(i)To an account held by the Family Court of Australia for and on behalf of the wife the sum of FIFTY FIVE THOUSAND AND FIVE DOLLARS ($55,005); and
(ii)To an account held by the Family Court of Australia the sum of THIRTY ONE THOUSAND FOUR HUNDRED AND NINETY NINE DOLLARS ($31,499) pursuant to a judgment debt in favour of K Lawyers.
(b)That the husband retain free from any claim by the wife the following:-
(i)All equity, interest and title in D Street, Suburb E;
(ii)Motor vehicles in his possession;
(iii)All monies standing to his credit in any bank account, credit union or financial institution;
(iv)All other personalty or realty…

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 Ryland & Ryland & Anor

Details

AGLC: Ryland & Ryland [2018] FamCA 134
Case: [2018] FamCA 134
Decision Date: 7 March 2018

CaseChat Overview and Summary

In the matter of Ryland & Ryland & Anor, Berman J of the Family Court of Australia made orders in full and final settlement of property settlement claims between the parties pursuant to the *Family Law Act 1975* (Cth). The dispute concerned the division of the parties' assets and liabilities.

The court was required to determine the appropriate allocation of property between the husband and wife. This included the division of real estate, motor vehicles, bank accounts, personalty, and superannuation entitlements. The orders also addressed the method of payment for the settlement sum and the consequences of default.

Berman J ordered that the husband pay a sum of $86,504 to the wife within sixty days, with specific allocations to an account for the wife and a judgment debt in favour of K Lawyers. The husband was to retain certain assets, including property at D Street, Suburb E, motor vehicles, and his bank accounts and other personalty. The wife was to retain her bank accounts and personalty, as well as her superannuation entitlements with Super SA and Sun Super. Crucially, the court also allocated a base amount of $280,031 from the husband's interest in the L Superannuation Fund to the wife, with specific provisions for payment upon splittable payments being made by the fund's trustee, binding the trustee and the husband's estate. In the event of the husband's default in payment, the property at D Street was to be listed for sale, with outstanding settlement sums and interest to be paid to the wife from the net proceeds.

Orders

Orders of the court

That in full and final settlement of all claims that either party has against the other for property settlement pursuant to the provisions of the Family Law Act 1975 (Cth) (as amended) (“the Act”):-

(a) That on or before sixty (60) days from the date of this order the husband do pay to the wife the sum of EIGHTY SIX THOUSAND FIVE HUNDRED AND FOUR DOLLARS ($86,504) in the following manner:

(i) To an account held by the Family Court of Australia for and on behalf of the wife the sum of FIFTY FIVE THOUSAND AND FIVE DOLLARS ($55,005); and

(ii) To an account held by the Family Court of Australia the sum of THIRTY ONE THOUSAND FOUR HUNDRED AND NINETY NINE DOLLARS ($31,499) pursuant to a judgment debt in favour of K Lawyers.

(b) That the husband retain free from any claim by the wife the following:-

(i) All equity, interest and title in D Street, Suburb E;

(ii) Motor vehicles in his possession;

(iii) All monies standing to his credit in any bank account, credit union or financial institution;

(iv) All other personalty or realty in his possession and control; and

(v) All superannuation entitlements other than as provided for in these orders.

(i) All monies standing to her credit in any bank account, credit union or financial institution;

(ii) Any personalty or realty in her possession and control.

(iii) Her superannuation entitlements in Super SA and Sun Super;

(d) That should the husband fail to pay the settlement sum either in whole or in part by the due date and should the default continue for fifteen (15) days thereafter THEN the husband shall forthwith do all things necessary to list for sale by public auction or private treaty the property at D Street, Suburb E upon such terms and conditions as may be agreed between the parties but in the absence of agreement as may be ordered by this Honourable Court and from the net proceeds of sale the wife is to receive so much of the settlement sum as shall be outstanding and unpaid together with interest at the rate of ten (10) per centum per annum with the balance if any to be paid to the husband.

(e) (i) That pursuant to s 90MT(4) of the Act this Honourable Court do allocate to the applicant wife a base amount of TWO HUNDRED AND EIGHTY THOUSAND AND THIRTY TWO DOLLARS ($280,031) from the respondent husband’s interest in the superannuation scheme named L Superannuation Fund Account Number …-01.

(ii) That pursuant to s 90MT(1)(a) of the Act whenever the Trustee of the L Superannuation Fund shall make a splittable payment out of the respondent husband’s interest in the L Superannuation Fund, the Trustee shall pay to the applicant wife, her executors, administrators, beneficiaries, heirs or assigns the entitlement calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 and that there be a corresponding reduction to the entitlement the respondent husband would have had in the L Superannuation Fund but for this order.

(iii) That this order has effect from the operative time. That the operative time shall be the fourth business day after the service of this order on the Trustees.

(iv) That this order shall bind the Trustees of the said L Superannuation Fund.

(v) That the Trustees of the said L Superannuation Fund shall do all such acts and things and sign all such documents as may be necessary so that, in accordance with the Act and the Family Law (Superannuation) Regulations 2001 the Trustees can calculate the entitlement of, and make payment to the applicant wife in accordance with this order.

(vi) That the terms of these paragraphs herein shall be binding on the executors, administrators, beneficiaries, heirs or assigns of the respondent husband.

(vii) That the Trustees of the said L Superannuation Fund and the applicant wife do have liberty to apply with respect to the operation of paragraph 1(e) herein.

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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