Saberton and Saberton - [2012] FamCA 870

FAMILY COURT OF AUSTRALIA

SABERTON & SABERTON

[2012] FamCA 870

FAMILY LAW – PROPERTY SETTLEMENT –Adjustment of property interests – where the parties’ contributions were assessed as equal during the marriage – Orders for substantial adjustment of property in favour of the Wife to account for the uncertainty as to her future needs owing to her chronic illness– Where the family had always enjoyed an expensive lifestyle -Where chronic illness meant Wife required ongoing paid support to care for the three children of the marriage and to look after her home – where the adjustment also took into account the current financial position of the Husband in his new household, where he and his current partner both had substantial income earning capacity

FAMILY LAW – PROPERTY – Notional Add-backs – where the Mother alleged that father failed to make payments under various interim orders– where neither party has made any application for contravention prior to hearing - Where the wife sought orders that those unpaid amounts be added back to the pool of matrimonial assets - Smith v Smith (1984) FLC 91-512 distinguished – Where the Court found the husband had made his best effort to meet his interim obligations and there were no addbacks on these amounts –Orders made adding back amounts the father spent on gifts to his Mother

FAMILY LAW – SPOUSAL MAINTENANCE – Factors Considered – Where both parties consented as to the provision of spousal maintenance – where the issue in dispute related to the duration of the maintenance – Where orders were made for the duration of three years in circumstances where it was unclear as to the wife’s future employment owing to an uncertain diagnosis of a chronic illness – where wife intended to return to work

FAMILY LAW – CHILD SUPPORT – Application for Departure – Orders made under s 116 and 117 of the Child Support Assessment Act 1989 (cth) that Husband pay the children’s school fees and related expenses in addition to existing child support payments - Where the family enjoyed a costly lifestyle – where the costs of the children’s private education were substantial – where the Wife has been unable to work for more than ten years due to a chronic illness – where the children live with the Wife – where the Husband earns a substantial wage and has acted for the last ten years as the families primary provider of financial support

Child Support Assessment Act 1989 (Cth) s 116 and s 117
Family Law Act 1975 (Cth) ss 72, 75, 79 and 90MT
Family Law (Superannuation) Regulations 2001(Cth)

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Smith v Smith (1984) FLC 91-512
Omacini and Omacini (2005) FLC 93-218

APPLICANT:

Ms Saberton

RESPONDENT:

Mr Saberton

FILE NUMBER:

SYC

6689

2010

DATE DELIVERED:

10 August 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Cleary J

HEARING DATES:

16, 17 & 28 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

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 Saberton and Saberton

Details

AGLC: SABERTON & SABERTON [2012] FamCA 870
Case: [2012] FamCA 870
Decision Date: 10 August 2012

CaseChat Overview and Summary

This matter concerned orders made by Cleary J in the Federal Circuit and Family Court of Australia concerning property settlement between the parties, the wife and the husband. The dispute revolved around the division of matrimonial assets and liabilities, including the matrimonial home, company shares, and superannuation entitlements.

The court was required to determine the terms of the property settlement, including the sale of the matrimonial home, the distribution of sale proceeds, the payment of specific debts and sums between the parties, the transfer of company shares and assets, and the division of superannuation entitlements. The orders addressed the valuation and sale process for the matrimonial home, the allocation of sale proceeds towards various loans and credit card debts, and a specific payment to be made by the husband to the wife.

Cleary J ordered the wife to list and sell the matrimonial home, with the sale price to be agreed or determined by a valuer appointed by the wife. The proceeds were to be applied first to sale costs, then adjustments for rates, followed by specified National Australia Bank loans and a Citibank credit card debt. The remaining net balance was to be paid to the wife, with the husband to make up any shortfall if the net balance was less than $206,575. The husband was also ordered to pay a sum of $66,949 to the wife within three months of the sale settlement.

Further orders directed the husband to transfer his shares in L Pty Ltd to the wife and resign as director and secretary, with the wife to ensure the husband's release from liabilities to L Pty Ltd and to indemnify her against third-party creditors. The wife was also to arrange for the transfer of L Pty Ltd's shares in X Pty Ltd and company assets to the husband at his expense. The court also made orders pursuant to s 90MT(1)(a) of the Family Law Act 1975 regarding the wife's entitlement to 100 per cent of the husband's splittable payments from The Y Superannuation Fund.

Orders

Orders of the court

That within 42 days of the date of Order, the wife will do all acts to cause the matrimonial home to be listed for sale and sold for its fair market value which must be agreed between the parties or in default of agreement for a period of excess of 14 days must be the price determined by a valuer appointed by the wife whose determination will be final and binding upon the parties, and by way of consequential arrangements that shall be made for the purpose of effecting the sale:

1.1 The parties will list the property for sale with R Real Estate;

1.2 The parties will appoint, P solicitors, to conduct the conveyance in relation to the sale,

1.3 The property is to remain on the market until sold or for the expiry of three months from the date of orders, whichever is sooner and thereafter is to be offered for sale by auction.

That upon settlement of the sale of the home, the parties will do all acts and things to cause the proceeds of sale to be distributed as follows:

3.1 in payment of (or reimbursement to the party having made the prepayment of) all legal costs, commissions, and agent expenses (including advertising expenses) in relation to the sale, and the cost of any value appointed by the wife in accordance with Order 1 herein;

3.2 in adjustments of rates and other outgoings;

3.3 payments in respect of the following National Australia Bank loans:

3.3.1 Loan number …(“the home loan”);

3.3.2 Loan number …(“the S loan”);

3.3.3 Bank account number …(“the L Ltd overdraft”);

3.3.4 Loan number …(“the business loan”)

such that the total borrowings in relation to the accounts listed as 3.3.1, 3.3.2, 3.3.3 and 3.3.4 herein at no time exceeds the amount of $1,900,000.

3.4 Citibank Credit Card held by the wife in the amount of $31,984; and

3.5 in payment of the net balance remaining to the wife and in the event that the net balance is less than the sum of $206,575, then the husband will pay to the wife the sum being the difference between the actual net balance and $206,575.

That within three months of the date of settlement of sale of the matrimonial home, the husband shall pay to the wife the sum of $66,949.

4.1 That within 60 days of the date of Order the husband do all acts and things to sign all such documents to:

4.1.1 transfer all shares held by him in her name in the companies known as L Pty Ltd, ACN number …(“L Pty Ltd”) to the wife;

4.1.2 resign as director and secretary of L Pty Ltd.

4.2 That the wife in her capacity as director of L Pty Ltd cause the husband to be released from any liability arising from any loan account owed by him to L Pty Ltd and that the husband release L Pty Ltd from any claim he may have as a result of monies owned to him by way of loan account by L Pty Ltd and the husband further indemnify the wife and keep her indemnified in respect of all liability whatsoever to any third party creditor of L Pty Ltd for any debt incurred prior to his compliance with Order 4 or arising out of any act or failure to act by L Pty Ltd or its directors prior to his compliance with Order 4.

4.3 That the wife in her capacity as director of L Pty Ltd do all acts and things to cause the company’s shares in X Pty Ltd, the office furniture and equipment owned by L Pty Ltd to be transferred to the husband at his expense if any.

4.4 That except as otherwise provided herein, as between the parties the wife be declared the owner of all of the assets of L Pty Ltd Pty Ltd.

5.1 That pursuant to s 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s entitlement in the self managed fund known as The Y Superannuation Fund, (“the Fund”) the wife shall be entitled to be paid 100 per cent of the husband’s entitlement in accordance with Family Law (Superannuation) Regulations 2001 and that there be a corresponding reduction to the entitlement of the husband that he would have had in the Fund but for this Order.

5.2

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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