FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAUNDERS & SAUNDERS | [2019] FCCA 350 |
| Catchwords: FAMILY LAW – Property – where both parties seek orders for final property distribution – where the date of separation is in issue – where lack of disclosure by parties a significant issue – where husband seeks that jewellery disposed of by the wife post-separation be treated as an “addback” – discussion of relevant legal principles regarding “addbacks” – where the Court is not satisfied that justice and equity require the dissipated jewellery to be added back – where dissipation of jewellery taken into account as a s.75(2) factor – where husband made greater initial contribution – where wife makes allegations of family violence against the husband – where the wife argues that the husband’s conduct made her contributions more arduous – where the Court satisfied the husband’s conduct made the wife’s contributions more arduous. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79, 80, 81, 117 |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116; (2014) 49 Fam LR 387 |
| Applicant: | MR SAUNDERS |
| Respondent: | MS SAUNDERS |
| File Number: |
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- AGLC
- SAUNDERS & SAUNDERS [2019] FCCA 350
- Case
- [2019] FCCA 350
- Decision Date
CaseChat Overview and Summary
The court was required to determine the date of separation, whether the dissipated jewellery should be treated as an "addback" to the asset pool, and how to achieve a just and equitable distribution of the parties' property, considering their initial contributions and the impact of family violence. The court also had to address the valuation and sale of Property A, which was a substantial asset.
Judge Harper found that while the husband had made greater initial contributions, the wife's contributions were made more arduous due to the husband's conduct. The court was not satisfied that justice and equity required the dissipated jewellery to be added back to the asset pool, instead taking this dissipation into account as a factor under section 75(2) of the Family Law Act 1975 (Cth). The court ordered the applicant to pay the respondent a sum of $500,316 within 42 days, or alternatively, an amount calculated by a specified formula if the parties agreed on a value for Property A. In default, Property A was to be listed for sale by public auction, with detailed provisions for the sale process and disbursement of proceeds. The applicant was also ordered to transfer 50 ordinary shares in B Pty Limited to the respondent. The court also noted the parties' agreement to release their rights to make applications in relation to each other's estates under family provision legislation.
Orders
Orders of the court
1.
For the purposes of the following orders:
(a) the value of the parties’ net assets is $189,231.00, excluding the value of Property A, NSW (hereinafter referred to as Property A) (“value of parties’ net assets”);
(b) The respondent’s deficit of assets over liabilities is $36,193.00
2.
That within 42 days the applicant pay to the respondent the sum of $500,316.
3.
Notwithstanding Order 2, within 42 days the parties may agree in writing a value for Property A (“agreed value”) in which event in lieu of the amount specified in Order 2 the applicant shall pay the respondent a sum calculated in accordance with the following formula:
A + (0.36 * (B + C))
A = the respondent’s deficit of assets over liabilities
B = the value of the parties’ net assets
C = the agreed value
4.
In default of Order 2 or 3, that within 14 days of such default the applicant do all acts and things and sign all necessary documents to list the property known as and situate at Property A for sale by public auction with an agent determined by him in accordance with the following sub-clauses:
(a) The applicant shall notify the respondent of the Agent he has appointed and provide her with a copy of the Agency Agreement within 24 hours of executing the said Agreement;
(b) The applicant will do all such things and sign all documents so as to authorise the auctioneer to sell the property by auction for the best price reasonably obtainable and the auction period shall be not less than 8 weeks from the date the Agency Agreement is signed by the applicant and not later than 16 weeks from the date the Agency Agreement is signed by the applicant unless otherwise determined by the real estate agent and the applicant shall inform the respondent as to the date of the Auction;
(c) The applicant shall be responsible for meeting any upfront costs of the Agent and/or Auctioneer and shall be reimbursed such costs from the proceeds of sale as provided for in these Orders;
(d) The applicant shall nominate a reserve price 10 days prior to the auction after consultation with the agent as to the market value of the property, and notification to the respondent, and adopt the market value advised by the agent as the reserved price; and
(e) The applicant shall provide all necessary directions and instructions to cause the proceeds of sale, as may be held by the Agent, to be disbursed in accordance with these Orders.
5.
That in the event Property A fails to sell at the auction or within 72 hours following the auction that the property immediately be listed for sale by private treaty at a list price as nominated by the applicant in accordance with the recommendations of the Agent and not less than 5% below the reserve price at the auction.
6.
That upon completion of the sale of Property A in accordance with these Orders the applicant shall do all acts and things and execute all documents necessary to cause the proceeds of sale to be paid as follows:-
(a) The payment of all agents commission and auctioneer expenses (if any) and solicitors/conveyancers costs referrable to the sale;
(b) The payment of all adjustments of municipal and water rates;
(c) The payment to the applicant of the costs paid by him in relation to any upfront agent’s expenses in accordance with Order (4)(c) above;
(d) In payment of the balance then remaining (“net balance”):
(i) to the respondent, according to the following formula
A + (0.36 * (B + C))
A = the respondent’s deficit of assets over liabilities
B = the value of the parties’ net assets
C = the net balance
(ii) the remainder to the applicant.
7.
That within 28 days of the making of these orders, the applicant do all such acts and things and sign all necessary documents so as to transfer to the respondent free of encumbrances 50 ordinary shares in the company B Pty Limited.
8.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth), to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
9.
That the applicant and the respondent do all acts and things and give all consents and execute all documents and writing necessary to give effect to the orders made herein.
10.
If any party seeks an order for costs, an appropriate application to the Court may be made within 28 days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.
THE COURT NOTES THAT:
A. Any application as to costs will be dealt with by way of written submissions, unless the parties request to be heard orally.
B. The Court notes that the parties have for the purpose of finally determining the financial relationships between them and to avoid further proceedings between them agreed as follows:
(i) Subject to the approval of the Supreme Court of New South Wales pursuant to the legislation relating to the release of the rights to apply for a family provision order, the applicant and the respondent each releases his or her rights to make an application in relation to the estate of the other pursuant to such legislation;
(ii) The applicant and the respondent each gives that release in consideration of the other terms of this agreement;
(iii) The applicant and the respondent acknowledge that it is to his and her advantage in the light of the terms of this agreement to grant the release;
(iv) The applicant and the respondent acknowledge the terms of this agreement and that they have taken into account the position of the other in the event of the death of the other;
(v) The applicant and the respondent accept that for the purposes of the Act the provisions of this agreement including this release are fair and reasonable;
(vi) At any time after the execution of this agreement the applicant or the respondent or his/her legal representative may request the other party or his/her legal representative to join in at the cost of the one requesting an application to the Court for the approval of this agreement to relinquish all claims under the Act. If such a request is made the other covenants to comply with such a request and to do all things reasonably necessary to obtain the approval of the Supreme Court at the cost of the one requesting.
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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