Sanders and Sanders - [2009] FamCA 457

FAMILY COURT OF AUSTRALIA

SANDERS & SANDERS [2009] FamCA 457

FAMILY LAW – PROPERTY SETTLEMENT – Assets and Liabilities – Contributions – Adjustments
FAMILY LAW – SPOUSE MAINTENANCE – Threshold issue – Need – Adequate Reason – Capacity

Family Law Act 1975 (Cth) ss 75 & 79
In the Marriage of Kennon (1997) FLC 92-757; 22 Fam LR 1
In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
M v M (2006) 36 Fam LR 97
Mitchell v Mitchell (1995) 19 Fam LR 44; 120 FLR 292; (1995) FLC 92-601

APPLICANT: Mr Sanders

RESPONDENT: Ms Sanders

FILE NUMBER: SYC 8576 of 2007

DATE DELIVERED: 29 May 2009

PLACE DELIVERED: Sydney

JUDGMENT OF: Judicial Registrar Loughnan
PLACE HEARD: Sydney

HEARING DATE: 11& 12 May 2009
REPRESENTATION

COUNSEL FOR THE APPLICANT
HUSBAND:
Mr R. Bell

SOLICITOR FOR THE APPLICANT: Argyle Lawyers

COUNSEL FOR THE RESPONDENT
WIFE:
Mr J. Priestley

SOLICITOR FOR THE RESPONDENT Penny Waters Armstrong Legal
Orders
1.DEFINITIONS
(a)“Y Company” means Y Pty Limited (ACN …) a company in which the husband is the sole director/secretary. There are 2 ordinary shares issued in Y Company. The husband holds 1 ordinary share and the wife holds 1 ordinary share. Y Company is the corporate trustee of the Sanders Family Trust and the Sanders Family Trust (I).
(b)“N Holdings” means N Holdings Pty Limited (ACN …). The husband and Mr A are the directors of N Holdings. The husband holds 60 ordinary shares, the wife holds 3 “C” and 2 “E” Class shares and W and G respectively hold 3 “C” and 2 “F” Class shares. The remaining shares are held by LA, PA and JA. N Holdings is the corporate trustee of the Sanders and A Family Trust.
(c) “the former matrimonial home” means the whole of the land contained in Certificate of Title folio identifier … together with the improvements erected thereon and known as V property, registered in the names of the parties as joint tenants. The former matrimonial home is currently listed for sale.
(d)“the husband's car” means the Mercedes … registration number A… registered in the name of NPA Company.
(e)“the husband’s superannuation entitlements” means the husband’s superannuation with National Mutual/AXA Fund via the Summit Master Trust.
(f)“the NPA Group” (ABN …) means the trading names of NPA Company, M Company under NE Group which represents a business partnership.
(g)“the…

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 Sanders and Sanders

Details

AGLC: Sanders and Sanders [2009] FamCA 457
Case: [2009] FamCA 457
Decision Date: 29 May 2009

CaseChat Overview and Summary

This matter came before Judicial Registrar Loughnan concerning property settlement and spousal maintenance between a husband and wife. The dispute involved the division of various assets and liabilities, including the former matrimonial home, company shares, trust interests, vehicles, and superannuation entitlements. The court was required to determine how these assets and liabilities should be distributed between the parties and to make orders regarding spousal maintenance.

The court's reasoning focused on the practical division of the parties' financial affairs. It ordered the sale of the former matrimonial home, with the net proceeds to be applied first to discharge specified joint liabilities and sale costs, followed by a distribution of 77% to the wife and 23% to the husband. The court also made orders for the transfer of specific shares in Y Company and N Holdings, and for the wife to disclaim and assign any loan accounts in certain family trusts to the husband. The parties were declared to be the sole owners of their respective vehicles, bank accounts, and superannuation, with specific exceptions.

Further orders stipulated that the husband would be solely responsible for his credit card debts and other liabilities, while the wife would be solely responsible for her credit card debts. Each party was released from all debts owing to the other, except as otherwise provided. The existing spousal maintenance order was varied to reduce the weekly payment to $357.00, continuing only until 29 November 2009, unless otherwise agreed. The court also included machinery orders to facilitate the execution of these property and maintenance provisions.

Orders

Orders of the court

1. DEFINITIONS

(a) “Y Company” means Y Pty Limited (ACN …) a company in which the husband is the sole director/secretary. There are 2 ordinary shares issued in Y Company. The husband holds 1 ordinary share and the wife holds 1 ordinary share. Y Company is the corporate trustee of the Sanders Family Trust and the Sanders Family Trust (I).

(b) “N Holdings” means N Holdings Pty Limited (ACN …). The husband and Mr A are the directors of N Holdings. The husband holds 60 ordinary shares, the wife holds 3 “C” and 2 “E” Class shares and W and G respectively hold 3 “C” and 2 “F” Class shares. The remaining shares are held by LA, PA and JA. N Holdings is the corporate trustee of the Sanders and A Family Trust.

(c) “the former matrimonial home” means the whole of the land contained in Certificate of Title folio identifier … together with the improvements erected thereon and known as V property, registered in the names of the parties as joint tenants. The former matrimonial home is currently listed for sale.

(d) “the husband's car” means the Mercedes … registration number A… registered in the name of NPA Company.

(e) “the husband’s superannuation entitlements” means the husband’s superannuation with National Mutual/AXA Fund via the Summit Master Trust.

(f) “the NPA Group” (ABN …) means the trading names of NPA Company, M Company under NE Group which represents a business partnership.

(g) “the R Street units” means the two joint commercial offices situated at R Street, being the whole of the land contained in Certificate of Title Folio Identifier … registered in the name of N Holdings Pty Limited, subject to a mortgage to National Australia Bank.

(h) “the wife's bank account” means the monies standing to the credit of the wife in the account held in her sole name

(i) “the wife's car” means the Mercedes … registration number B… registered in the name of NPA Company.

(j) “wife's superannuation entitlements” means the wife’s superannuation fund with the National Mutual/AXA Fund via Summit Master Trust.

(k) “W and G” means the children of the marriage namely, W born … September 1986 (“W”) and B (“G”) born on … July 1988.

(l) “The NE Group” means the trading names of NPA Company, M Company and the NE Group.

2. PROPERTY ORDERS

2.1 That the former matrimonial home be sold as soon as practicable. In the event that the parties are unable to agree on an issue to do with the price or the marketing of the home they are to request the President of the Real Estate Institute of NSW to make a decision on that issue and will abide by that decision.

2.2 That upon settlement of the sale of the former matrimonial home the net proceeds of sale shall be distributed in the following manner and priority:

(a) Firstly, to discharge the following liabilities:

(i) The overdraft facility with the National Australia Bank; being account number …;

(ii) The business instalment loans with the National Australia bank; being account number 57… and account number 79 …;

(iii) The Flexiplus mortgage line of credit with the National Australia Bank; being account number …;

(iv) The National Australia Bank Home Loan; being account number …; and

(v) The L Sanders Investment Account; being account number ….

(b) Secondly, to pay all costs and expenses of the sale including legal costs and disbursements.

(d) Fourthly, to meet the costs of the President of the Real Estate Institute of NSW or his delegate, arising from any request made by the parties pursuant to these orders;

(e) Fifthly, in the payment of 77% of the remaining balance to the wife; and

(f) Sixthly, in payment of the remaining balance to the husband.

2.3 That within 28 days from the date of this Order, the husband shall do all acts and things and sign all documents as may be necessary to transfer the wife’s motor vehicle into her sole name and at her expense.

2.4 That within 28 days from the date of this order the wife shall do all acts and things and sign all documents as may be necessary to transfer to the husband:

(a) her one share in Y Company;

(b) her 3 “C” class shares in N Holdings.

2.5 That within 28 days from the date of these orders the wife shall:

(a) Disclaim her interest in the Sanders Family Trust, the Sanders Family Trust (I) and the Sanders and A Family Trust; and

(b) Assign to the husband any loan account (debit or credit) that she has in the Sanders Family Trust, the Sanders Family Trust (I) and the Sanders and A Family Trust.

2.6 It is declared that except as otherwise provided for herein the wife shall be declared to be the sole owner of and the husband shall have no interest in:

(a) The wife’s motor vehicle;

(b) The wife’s bank accounts;

(d) All other property and personal effects in her possession, custody and control as at the date of these orders.

2.7 It is declared that except as otherwise provided for herein the husband shall be declared to be the sole owner of and the wife shall have no interest in:

(a) The NE Group;

(b) Y Pty Ltd;

(d) The husband’s motor vehicle;

(e) The husband’s Superannuation entitlements;

(f) The husband’s bank accounts;

(g) All other property and personal effects in his possession, custody and control as at the date of these orders.

2.8 The husband shall be solely responsible for and indemnify and keep indemnified the wife in respect of:

(a) the husband's credit card debts;

(b) any liabilities, taxation obligations, debts, dues or obligations of the husband.

2.9 The wife shall be solely responsible for and indemnify and keep the husband indemnified in respect of:

(a) the wife's credit card debts.

(b) any liabilities, taxation obligations, debts, dues or obligations of the wife.

2.10 Except as any clause forming part of this Order provides to the contrary, each of the husband and the wife releases the other from all debts owing from one to the other.

3. SPOUSE MAINTENANCE ORDER

3.1 The order for spouse maintenance contained in the orders made by this Court on 18 February 2008 is varied to provide that as from the date of this order the rate of maintenance be reduced to $357.00 per week and that unless the parties otherwise agree in writing those payments continue only until 29 November 2009.

4. MACHINERY ORDERS

4.1 The parties are to sign any deeds, documents, instruments and writings as may be necessary to give affect to these orders and to do all acts and things necessary to give them validity and operation.

4.2 Should either party refuse or neglect to sign any deeds, documents, instruments and writings as may be necessary to give affect to these orders within fourteen (14) days of being requested to do so, the Registrar and each Deputy Registrar of the Family Court of Australia is appointed, pursuant to Section 106A of the Family Law Act 1975, to execute such deeds, documents, instruments or writings in the name of the defaulting party and do all acts and things necessary to give them validity and operation.

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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