FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sangster & Sangster [2024] FedCFamC2F 923
File number(s): ADC 5349 of 2021 Judgment of: JUDGE DICKSON Date of judgment: 23 July 2024 Catchwords: FAMILY LAW – PROPERTY – Final hearing – Where the parties’ two adult daughters have joined as the Second and Third respondents – Marriage of 27 years – Where the First Respondent husband’s case is ad idem with the Second and Third Respondent daughters – Where the parties had various family business ventures and arrangements in which the wife was not a named partner or director – Comingling of familial finances – Equitable interests – Where the wife asserts that she has a beneficial interest in the real properties – Limitations as to the evidence made available at Trial – Consideration of the existence of equitable interests – Consideration of add backs – Assessment of contributions and future needs – Where it is not just and equitable to include the real properties owned by the Second and Third Respondent daughters in the net asset pool – Orders for the sale of property – 55 per centum division in favour of the wife subject to the add back of the wife’s superannuation amount – Justice and equity. Legislation: Evidence Act 1995 s 140.
Family Law Act 1975 (Cth) ss 75, 79, 106A.
Cases cited: Babette & Falconer [2015] FamCAFC 124
Bevan & Bevan (2013) FLC 93–545
Bolger & Headon [2014] FamCAFC 27
Carr v Baker [1936] 36 SR (NSW) 301
Crapp & Crapp [1979] FamCA 17
Dickons& Dickons (2012) 50 Fam LR 244
Dovgan & Dovgan [2021] FamCA 306
Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128
Fields & Smith [2015] FamCAFC 57
Fox v Percy (2003) 214 CLR 118
Gissing v Gissing [1971] A.C. 886
Green & Green (1989) 17 NSWLR 343
Hampton Court Ltd v Crooks [1957] HCA 28
Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Ho v Powell (2001) 51 NSWLR 572
Housing Commission of New South Wales v Pastoral Company Pty Ltd [1983] 3 NSWLR 378
Jabour & Jabour [2019] FamCAFC 78
JEL & DDF [2000] FamCA 1353
Mallet v Mallet (1984) 156 CLR 605
Muschinski v Dodds (1985) 160 CLR 583
Norbis v Norbis (1986) FLC 91-712
Perrin & Perrin (No 2) [2018] FamCAFC 122
Peterson & Davis (No 3) [2022] FedCFamC1F 650
Rainford & Rainford [2020] FamCA 945
Rodgers & Rodgers (2016) FLC 93-703
Rosati & Rosati (1998) FLC 92-804
Selkirk & Selkirk [2019] FamCAFC 63
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Silvia (Trustee) v Williams [2018] FCAFC 194
Stanford & Stanford [2012] HCA 52
Steinbrenner& Steinbrenner [2008] FamCAFC 193
Strong v Woolworths [2012] HCA 5
Summitt & Summitt and Ors [2009] FamCA 371
Taffner & Taffner (2021) FLC 94-022
Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950
Wei & Xia (No 5) [2023] FedCFamC1F 679
Division: Division 2 Family Law Number of paragraphs: 374 Date of last submission/s: 21 May…
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- Sangster & Sangster [2024] FedCFamC2F 923
- Case
- [2024] FedCFamC2F 923
- Decision Date
CaseChat Overview and Summary
The court deliberated on the evidence presented and the limitations thereof, focusing on the equitable interests claimed by the wife. It examined the contributions made by both parties and the needs of each for the future. Notably, the court decided that it was not just and equitable to include the real properties owned by the daughters in the net asset pool. Consequently, the court ordered the sale of the specified property, with the net proceeds to be disbursed according to the detailed provisions in the judgment. The wife was awarded a 55% division of the net assets, subject to the addition of her superannuation amount. The court's decision was based on a comprehensive assessment of the parties' financial situations and the principles of justice and equity.
The court issued specific orders for the sale of the property and the disbursement of the net proceeds, ensuring that all parties complied with the terms. The wife was granted certain personal belongings and assets, while the husband retained specific interests in family partnerships and companies, along with his savings and superannuation. The daughters were required to hold their interests in the property on trust for the wife and the husband. The court also mandated the closure of the Sangster Family Superannuation Fund and the execution of necessary documents to effectuate the orders.
The final orders included declarations regarding the trust held by the daughters, directives for the sale of the property, and detailed provisions for the disbursement of the net proceeds. The court dismissed all remaining applications as finalised and authorised the execution of documents on behalf of any defaulting party. The form of the order was subject to entry in the court’s records, with provisions for potential review or variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Orders
Orders of the court
ADC 5349 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS SANGSTER
Applicant
AND:
MR SANGSTER
First Respondent
MS B SANGSTER
Second Respondent
MS C SANGSTER
Third Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
23 JULY 2024
THE COURT ORDERS THAT:
1. There be a declaration that the Second Respondent, Ms B Sangster, and the Third Respondent, Ms C Sangster, hold their interests in the land situate at D Street, Suburb E in the State of South Australia being the whole of the land comprised and described in Certificate of Title … Folio … on trust as to half of the beneficial interest in the property for the Applicant Wife and the First Respondent Husband.
2. In full and final settlement of all claims for alteration of property pursuant to Part VIII of the Family Law Act 1975 (Cth) (as amended):
(a) Within sixty (60) days of the date hereof the Applicant Wife and the First Respondent Husband shall do all such things so as to place the property at D Street, Suburb E in the State of South Australia being the whole of the land comprised and described in Certificate of Title … Folio … (‘the Suburb E property’) on the market for sale on such terms and conditions as they agree in writing and with such selling agent as they agree in writing (or failing agreement by such selling agent as nominated by the Secretary of the Real Estate Institute of South Australia).
(a) The Applicant Wife and the First Respondent Husband shall follow all advice provided by the said selling agent including the mode of sale, the terms of sale and any offers to purchase the said Suburb E property.
(b) Upon sale of the Suburb E property, the net proceeds shall be disbursed in the following manner:
(i) To pay all sales costs and commissions;
(ii) To the Applicant Wife the sum of $64,333 (SIXTY-FOUR THOUSAND THREE HUNDRED AND THIRTY-THREE DOLLARS AND ZERO CENTS);
(iii) Such sum as shall be calculated by F Company for the payment of Capital Gains Tax (if any) on behalf of the First Respondent Husband arising from the sale of the Suburb E property;
(iv) The payment of any liabilities arising in relation to the Sangster Family Pty Ltd self-managed superannuation fund including but not limited to accounting fees and any penalties imposed by the Australian Taxation Office;
(v) The payment of a liability to the Australian Taxation Office for Sangster Pty Ltd in the sum of $4,728;
(vi) A sum representing 55% to the Applicant Wife;
(vii) A sum representing 45% to the First Respondent Husband;
WHERE:
A. = the assets retained by the Applicant Wife – ($39,500);
B. = the assets retained by the First Respondent Husband – ($490,800);
C. = the net proceeds of the sale of the Suburb E property;
D. = AND WHERE A+B+C = I;
E. The Applicant Wife shall receive a sum equal to (I x 55%) – A; and
F. The First Respondent Husband shall receive a sum equal to (I x 45%) – B.
(b) The Applicant Wife do retain as her sole property:
(i) Motor Vehicle 1 ;
(ii) The furniture and effects situate in the Suburb E property subject to paragraph 2(d) herein;
(iii) Artwork;
(iv) All sewing equipment, fabrics and associate items;
(v) The gardening equipment and mower;
(vi) Her savings and investments;
(vii) The sale proceeds of her H shares and her personal possessions.
(c) The First Respondent Husband do retain as his sole property:
(i) His one-third interest in the assets owned by the partnership ‘Sangster’;
(ii) His one-third interest in the assets owned by Sangster Pty Ltd;
(iii) His savings and investments; and
(iv) His superannuation balance in the Sangster Family Superannuation Fund in the sum of $63,332.
(d) Within twenty-eight (28) days of the date hereof (or on such other date as the parties agree in writing) the Respondents shall attend and collect from the Suburb E property the following:
(i) All Manchester and linen;
(ii) King Size Mattress (in original plastic);
(iii) All tools and equipment belonging to the Respondent Husband;
(iv) All personal belongings and paperwork which belong to each of the Respondents;
(v) All assets owned by Sangster Pty Ltd including but not limited to:
A. Motor Vehicle 2;
B. Motor Vehicle 3;
C. Motor Vehicle 4;
D. Motor Vehicle 5;
E. Motor Vehicle 6;
F. All sports equipment;
G. Shipping container and all contents within it; and
(vi) All paperwork relating to the partnership and company.
(e) The Applicant Wife shall do all such things to ensure that the said items referred to in paragraph 2(d) herein are made available for collection by the First, Second and Third Respondents including permitting unhindered access to all outbuildings and storage containers situate at the Suburb E property.
(f) In relation to the Sangster Family Superannuation Fund the parties shall:
(i) Comply with all requests made by Mr J of F Company to sign any documents in relation to the said Fund including but not limited to the 2021 financials and tax returns for the Sangster Family Pty Ltd and the Sangster Family Superannuation Fund;
(ii) Do all such things as required to ensure that all the documents are lodged with the Australian Taxation Office and the Sangster Family Superannuation Fund is closed; and
(iii) Resign their directorship or transfer their shares as requested by the said Mr J.
(g) All parties shall do all acts and things reasonably required including the signing or execution of all necessary documents to give effect to the terms of this order within fourteen (14) days of being requested to do so.
(h) Within twenty-eight (28) days of the date hereof, the parties do discharge at their sole expense any caveat or encumbrance registered by them over any asset the subject of these proceedings.
(i) Pursuant to section 106A of the Family Law Act 1975 (Cth), in the event that any party should fail, refuse or neglect to execute any document necessary to implement the terms of these orders, then upon proof of such failure, refusal or neglect by affidavit, a Judicial Registrar or Deputy Registrar of this Honourable Court is hereby authorised to execute any such document on behalf of the defaulting party.
3. All extant applications are dismissed as finalised.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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