Sanderson & Sanderson

Case [2021] FamCA 342

FAMILY COURT OF AUSTRALIA

Sanderson & Sanderson [2021] FamCA 342

File number(s): NCC 1455 of 2015
Judgment of: MCCLELLAND DCJ
Date of judgment: 28 May 2021
Catchwords: FAMILY LAW – PROPERTY – Final property orders – Where the parties seek orders for an adjustment of the marital property pool – Where the husband has not complied with his obligation of disclosure or meaningfully engaged in the proceedings – Where the Court finds that the contributions made by the parties during the course of their relationship is equal – Where the Court finds that the wife is entitled to a 15 percent adjustment in her favour as a result of greater initial and post separation contributions – Where the Court finds that the wife is entitled to a 35 percent adjustment on the basis of s 75(2) factors in respect to the husband’s non-disclosure and the wife’s role as sole carer and financial supporter of the parties’ child – Orders made for a 100 percent distribution of the identifiable marital asset pool in favour of the wife
Legislation:

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

Evidence Act 1995 (Cth) ss. 59, 76, 81, 140(1)

Family Law Rules 2004 (Cth) rr. 13.01(1) and 13.04(1)
Cases cited:

Briese & Briese (1986) FLC 91-713

Coghlan and Coghlan (2005) FLC 93-220

Efthidmiadis & Efthidmiadis (1993) FLC 92-361

Farnell and Farnell (1996) FLC 92-681

Goddard Elliott v Fritsch [2012] VSC 87

Graf-Salzmann & Graf [2015] FCWA 68

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Kildea v Kildea (2007) 38 Fam LR 347

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Lee Steere and Lee Steere (1985) FLC 91-626

Livesey v Jenkins [1985] AC 424

Manolis v Manolis (No 2) [2011] FamCAFC 105

McGlen-McLeod v Galloway [2012] NSWCA 368

Mills v Mills (1938) 60 CLR 150

Petruski v Balewa (2013) 49 Fam LR 116

Robb and Robb (1995) FLC 92-555

Rodgers & Rodgers (No 2) (2016) FLC 93-712

Stanford & Stanford (2012) 247 CLR 108

Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)

Whalan v Kogarah Municipal Council [2007] NSWCA 5

Zaruba & Zaruba (2017) FLC 93–776

Carroll, Hugh P K and Kopsen, Robyn Carroll, “The importance of full and frank disclosure in family law financial proceedings and the many consequences of non-disclosure” (2017) 45 Federal Law Review 97
Number of paragraphs: 208
Date of hearing: 22 March 2021
Place: Sydney by web conference
The Applicant appearing in person by telephone
The Respondent appearing in person by video

ORDERS

NCC 1455 of 2015
BETWEEN:

MR SANDERSON

Applicant
AND:

MS SANDERSON

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

28 MAY 2021

THE COURT ORDERS THAT:

1.Within 28 days of the date of these orders, the parties do all acts and things to cause the entirety of the funds in both the controlled monies accounts held by G Lawyers to be distributed to Ms Sanderson (“the wife”), and, for that purpose, this…

Continue reading Sanderson & Sanderson

Sign in free to access the full text

Details
AGLC
Sanderson & Sanderson [2021] FamCA 342
Case
[2021] FamCA 342
Decision Date

CaseChat Overview and Summary

In the matter of *Sanderson & Sanderson*, heard by McClelland DCJ, the parties, Mr Sanderson (the husband) and Ms Sanderson (the wife), sought final property orders to adjust the marital property pool. The dispute was significantly complicated by the husband's failure to comply with his disclosure obligations and his lack of meaningful engagement in the proceedings.

The court was required to determine the appropriate adjustment of the parties' property interests, considering their respective contributions and other relevant factors under sections 79(4) and 75(2) of the *Family Law Act 1975* (Cth). Key issues included assessing the equality of contributions, determining entitlement to adjustments based on greater initial and post-separation contributions, and considering the impact of the husband's non-disclosure and the wife's role as the sole carer and financial supporter of the parties' child.

McClelland DCJ found that the contributions made by the parties during the relationship were equal. However, the wife was entitled to a 15 percent adjustment in her favour due to greater initial and post-separation contributions. Furthermore, a further 35 percent adjustment was awarded to the wife on the basis of section 75(2) factors, specifically citing the husband's inadequate disclosure and the wife's sole responsibility for the parties' child. Applying these considerations holistically, the court determined that it was just and equitable for the entirety of the identifiable marital asset pool to be distributed in favour of the wife.

Consequently, the court ordered the entirety of the funds held in the controlled monies accounts to be distributed to the wife, and the historic motor vehicle registered in the husband's sole name to be transferred to her. The parties were otherwise ordered to retain property and superannuation in their possession and to be responsible for liabilities in their respective names.

Orders

Orders of the court

NCC 1455 of 2015

BETWEEN:

MR SANDERSON

Applicant

AND:

MS SANDERSON

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

28 MAY 2021

THE COURT ORDERS THAT:

1. Within 28 days of the date of these orders, the parties do all acts and things to cause the entirety of the funds in both the controlled monies accounts held by G Lawyers to be distributed to Ms Sanderson (“the wife”), and, for that purpose, this Order serve as authority from each of the parties to G Lawyers to release such funds.

2. Within 30 days of the date of these orders, Mr Sanderson (“the husband”) do all acts and things to cause the historic motor vehicle 1 registered in his sole name to be transferred to the wife.

3. As between the parties, the husband remain solely responsible for all liabilities in his name, including but not limited to the following:

(a) Default Order for the husband to pay H Pty Ltd; and

(b) Monies owed to A Pty Ltd.

4. As between the parties, the husband will retain the following motor vehicles:

(a) Motor vehicle 1 (…);

(b) Motor vehicle 2 (…);

(c) Motor vehicle 3;

(d) Historic motor vehicle 2; and

(e) Car Trailer.

5. Other than as herein provided, the parties each be declared the owner at law and in equity of all items of personalty including but not limited to money held in their name, proceeds of bank accounts, furniture and furnishings, jewellery, and personal effects presently in their respective possession and control.

6. Other than as herein provided, the parties each be declared the owner of such superannuation/annuity entitlements, and pension benefits to which each of them is or might become entitled in his or her own right.

7. Other than as herein provided, the parties remain liable for any debts in his or her sole name as at the date of these orders, and, in this respect, shall indemnify and hold harmless the other from any liability in relation thereto.

8. In the event any party refuses or neglects to comply with any of the orders herein requiring a party to execute a deed or instrument, the Registrar or Deputy Registrar of this Court at its Sydney Registry is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute, in the name of the Husband or the Wife as the case may be, any deed or instrument necessary to give effect to the orders herein, or any of them, and to do all acts and things necessary to give validity and operation to the said deed or instrument.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

For reasons which I set out in this decision, taking into account the contribution factors and matters which I am required to consider pursuant to ss 79(4) and 75(2) of the Act, particularly the manner in which the husband has approached these proceedings including his inadequate disclosure, I have determined that it is appropriate for the property of the parties to be adjusted such that the wife receives 100 percent of the identified marital property. Nevertheless, for practical reasons, I have made orders for the husband to retain certain motor vehicles and a trailer which are in his possession. The orders otherwise provide for the parties to retain existing property and superannuation that is in their possession, and to be responsible for satisfying any liabilities that are in their respective names. BACKGROUND I will now set out the agreed facts relevant to this matter and, where controversial, the parties’ respective factual contentions. History of the parties’ relationship In 1955, the husband was born. He is currently aged 66 years. In 1973, the wife was born. She is currently aged 47 years. In 1998, the child from the wife’s earlier marriage, Ms F Sanderson (“Ms F”) was born. She lived with the parties until they separated and is currently aged 22 years. In 2000, the parties commenced cohabitation. In mid-2001, the parties married. In 2002, the husband commenced participating in a motorsport. In 2004, the only child of the parties’ marriage, B Sanderson (“B”), was born. She is currently aged 16 years. In 2014, the parties separated on a final basis but continued to live under the one roof until 28 March 2015. On 10 June 2015, the husband commenced proceedings in the Federal Circuit Court of Australia by filing an Initiating Application for final parenting and property orders. On 15 March 2016, Judge Myers made orders transferring the matter to the Family Court of Australia. On 15 November 2017, the husband withdrew all parenting applications. The children, being Ms F and B (collectively, “the children”) remain living with the wife. In June 2018, the parties divorced.A Pty Limited On 8 August 1998, the husband established a products and services business which he incorporated, on 18 January 1999, as J Pty Ltd. The husband was the sole director of this company. In February 2003, the company Company A was initially purchased and, after the acquisition, the company name was changed to A Pty Ltd and the wife commenced employment at A Pty Ltd. The wife continued to be employed by A Pty Ltd until the company was sold. The husband contends that J Pty Ltd purchased the Company A before changing the company name to A Pty Ltd. The husband further contends that the wife was not a director and shareholder of A Pty Ltd until April 2003. Comparatively, the wife contends that, in February 2003, both the parties were directors of A Pty Ltd and jointly purchased Company A in equal shares. The wife further contends that the acquisition involved A Pty Ltd taking over the liabilities owed by the purchased company.

Evidence

Evidence Before The Court

The wife seeks orders be made in accordance with those set out in her Case Outline document filed 27 February 2021, as follows: 1. That within 28 days of the date of order, the parties do all acts and things to cause the entirety of the funds held in the controlled monies accounts by G Lawyers to be distributed to the Wife, and for that purpose, this Order serve as authority from each of the parties to G Lawyers to release such funds.2. That within 42 days of the date of the order, The Husband pay to the Wife’s nominated bank account the sum of $275,000.3. That within 30 days of the date of the orders, the Husband do all acts and things to cause the motor vehicle being the Historic motor vehicle 1 registered in his sole name to be transferred to the Wife.4. That as between the parties the Husband remain solely responsible for all liabilities in his name, including but not limited to the following:a. Default Order for the Husband to pay H Pty Ltd;b. Monies owed to A Pty Ltd.5. That as between the parties, the wife will retain the following:a. monies held in bank accounts in her name; and b. furniture, furnishings, personalty and jewellery in her possession.6. That as between the parties, the husband will retain the following:a. Motor vehicle 4;b. Motor vehicle 3;c. Historic motor vehicle 2;d. Historic motor vehicle 2 (Shell);e. Van (…);f. Motor vehicle 1 (…);g. Truck 1 (…);h. Truck 2 (…);i. Proceeds of sale from Historic motor vehicle 3 (…)j. Proceeds of sale from Historic motor vehicle 4 (…);k. Motorcycle 1 (…); l. Motorcycle 2 (…);m. Bike Trailer (…);n. Quad Bike 1;o. Quad Bike 2;p. Quad Bike 3;q. Motor vehicle 5 (…);r. Car Trailer for Racing Cars;s. Caravan (…);t. Spa;u. One million Qantas Frequent Flyer points;v. Crystal Collection;w. Model Car Collection;x. Spring free Trampoline;y. Tractor;z. Ride on Mower;aa. Motor scooter (…);bb. Motorcycle 3 (…);cc. Historic Motorcycle 4;dd. Caravan 2;ee. Motor vehicle 2 (…);ff. Motor vehicle 6 (…);gg. Yacht;hh. Dingy boat;ii. Proceeds of sale from Q Street Suburb R;jj. monies held in bank accounts in his name; and kk. furniture, furnishings and personalty in his possession.7. That other than as herein provided the husband and the wife each be declared the owner at law and in equity of all items of personalty including but not limited to money, proceeds of bank accounts, jewellery, and personal effects presently in their respective possession and control.8. That other than as herein provided the husband and the wife each be declared the owner of such superannuation/annuity entitlements, and pension benefits to which each of them is or might become entitled in his or her own right. 9. That other than as herein provided, the husband and wife remain liable for any debts in his or her sole name at the date of these Orders and in this respect shall indemnify and hold harmless the other from any liability in relation thereto.10. That in the event the husband or the wife refuses or neglects to comply with any of the Orders herein requiring a party to execute a deed or instrument, the Registrar or Deputy Registrar of this Court at its Sydney Registry is appointed pursuant to Section 106A of the Family Law Act to execute, in the name of the husband or the wife as the case may be, any deed or instrument necessary to give effect to the orders herein, or any of them, and to do all acts and things necessary to give validity and operation to the said deed or instrument. EVIDENCE

Decision

Reasons for decision

In addition, I am further of the opinion that, as result of the husband’s inadequate disclosure, which I have detailed above in considering the factor set out in s 75(2)(o) of the Act, I am satisfied that the wife is entitled to an additional adjustment of 20 per cent in her favour. To avoid doubt, in the assessment of that sum, I have had regard to the contribution made by the husband by way of financial and non-financial support in the care of Ms F, during the period of the parties’ relationship.CONCLUSION For the reasons which I have set out above, I am satisfied that it is appropriate, just and equitable for an order to be made requiring the totality of the identifiable property, which I have included in the balance sheet of the parties, remaining with the wife and, insofar as it is not currently in the name of the wife, being so transferred to her. However, in taking a holistic evaluation of the circumstances of this case, including the husband’s failure to constructively engage in this litigation, I am of the view that it is a futility requiring the husband to deliver to the wife those items of property which he refers to, in his Financial Statement filed 11 March 2021, as remaining in his possession. That reality appears to be implicitly acknowledged by the mother, in respect to her proposed order 6 as set out in her Case Outline document marked ‘Exhibit G’ in these proceedings. This is not the case, however, in respect to the Historic motor vehicle 1 which is in the wife’s possession but remains registered in the name of the husband. During the course of the proceedings, the husband indicated that he had no difficulty with that registration being transferred to the wife, as reflected in proposed order 2 as set out in his Case Outline document marked ‘Exhibit B’ in these proceedings. The Court trusts that he will facilitate that occurring, and, should he fail to do so, the orders I make in these proceedings provide that arrangements can be made for the necessary transaction to be executed by a Registrar of this Court. Essentially, therefore, I make orders as proposed by the wife, save to the extent that I have been unable to identify the property over and above those monies held in the controlled monies accounts, totalling $275,000 which the wife seeks to be transferred to her in accordance with proposed order 2 as set out in her Case Outline document. Therefore, I will not make that order sought by the wife. I will, however, make orders that the totality of funds currently held in the controlled monies accounts are to be paid to the wife. As I have noted, I will further order that the husband transfer the registration of the Historic motor vehicle 1 to the wife. Finally, I find that the ancillary orders otherwise proposed by the wife are appropriate to give effect to the purpose and intent of the distribution which I have determined to be just and equitable. Specifically, those ancillary orders will confirm that the parties’ superannuation interests lay where they currently exist, and will further confirm that the parties are each responsible for debts and liabilities that currently exist in their own names.

Ratio Decidendi

Legal Principle Established

More generally, in Petruski v Balewa (2013) 49 Fam LR 116 at [49], the Full Court stated: The task of assessing contributions under s 79 of the Act is an holistic one; what is required is to evaluate the extent of the contributions of all types made by each of the parties in the context of their particular relationship: Dickons v Dickons [2012] FamCAFC 154 (Dickons). As was also said by the Full Court in Lovine v Connor [2012] FamCAFC 168 at [40] and [41] (Lovine) such an evaluation “inevitably involves value judgments and matters of impression”, and accordingly it cannot be treated as “a mathematical exercise.”CONSIDERATION Is it just and equitable to make a property adjustment? Both parties sought an adjustment of their property interests pursuant to s 79 of the Act. In that regard, in Stanford at [42], the plurality of the High Court stated:In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4). In this case, both parties seek an order adjusting their property interests so that they can terminate their financial connection with each other and get on with their respective lives. The circumstances referred to in Stanford are therefore readily satisfied.The Balance Sheet The wife contends that the assets currently held by the parties are those set out at paragraph 9 of her trial Affidavit, set out as follows: Save to the extent that the husband acknowledges the existence of monies held in the controlled monies account no.1 and no.2 (collectively, “the controlled monies accounts”) to which I will refer, as well as the assets disclosed by him in his Financial Statement filed 11 March 2021 to be currently in his possession, the husband did not present evidence nor did he make submissions regarding the totality of the current assets and liabilities of the parties.