FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Schirmer & Schirmer [2025] FedCFamC2F 45
File number(s): SYC 2420 of 2023 Judgment of: JUDGE MURDOCH Date of judgment: 21 January 2025 Catchwords: FAMILY LAW – PROPERTY – Long marriage – Where there is dispute as to the value and nature of goodwill in the husband’s corporation – Where the single expert valuer opines that the goodwill component determined by him in the valuation of the corporation is enterprise goodwill – Where the husband asserts that inalienable personal goodwill exists and ought not to be part of the value of the company – Where this submission is accepted and the value of the goodwill ascribed by the single expert is deducted from the value – Where monies expended by the wife on legal fees and tax debt post separation are notionally added back to the pool for division – Where contributions throughout the relationship are found to be equal as agreed by the parties – Post-separation contributions favour the wife – Both parties assert that an adjustment should be made to the contribution findings pursuant to s79(4)(d)-(g) of the Family Law Act – Where adjustment made in favour of the husband owing to the disparity in income earning capacity. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79 Cases cited: Kowaliw and Kowaliw [1981] FamCA 70
TWN & PAQ (2005) FLC 93-230
AJO & GRO [2005] FamCA 195
Stanford & Stanford [2012] HCA 52
Trevi & Trevi [2018] FamCAFC 173
W & W [2000] FamCA 1302
Division: Division 2 Family Law Number of paragraphs: 133 Date of last submissions: 27 November 2024 Date of hearing: 26 – 27 November 2024 Place: Sydney Counsel for the Applicant: Mr Ford Solicitor for the Applicant: Doolan Callaghan Family Lawyers Counsel for the Respondent: Mr Fowler Solicitor for the Respondent: Sharon Moss Legal ORDERS
SYC 2420 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SCHIRMER
Applicant
AND: MR SCHIRMER
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
21 JANUARY 2025
THE COURT ORDERS THAT:
The Suburb B Property
1.Within 42 days of the date of these Orders, the parties shall do all acts and sign all documents necessary at the wife’s expense to:-
(a)transfer the Husband’s interest in the property situate at and known as C Street, Suburb B in the state of NSW being the whole of the land comprised in folio identifier … (‘the Suburb B property”) to the Wife; and
(b)discharge the joint current mortgage and all liabilities secured over the Suburb B property and the Wife shall refinance all liabilities into her sole name.
2.Simultaneously with Order 1, the Wife shall pay to the Husband the sum of $1,000,758 (“the settlement sum”).
3.Upon completion of the transfer pursuant Order 1, the Wife shall indemnify the Husband in respect of all liability, including any tax liability, penalty or interest in respect of such tax liability, actions, claims, suits and demands, past, present and future in respect…
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- AGLC
- Appeal from: Schirmer & Schirmer [2025] FedCFamC2F 45
- Case
- [2025] FedCFamC2F 45
- Decision Date
CaseChat Overview and Summary
The court accepted Mr Schirmer's submission that the personal goodwill component identified by the expert should not be part of the company's value, and therefore deducted this amount from the overall valuation. The court also added back to the pool monies the wife had spent on legal fees and a tax debt incurred post-separation. It found that the parties' contributions throughout the relationship were equal, as agreed, but post-separation contributions favoured the wife. Both parties sought an adjustment to the contribution findings under section 79(4)(d)-(g) of the Family Law Act, and the court made an adjustment in favour of the husband due to the significant disparity in their income-earning capacities.
The court ordered that Mr Schirmer's interest in the Suburb B property be transferred to Ms Schirmer, who would also pay him a settlement sum of $1,000,758. Mr Schirmer was to indemnify Ms Schirmer in respect of all liabilities associated with the property. Additionally, the husband was to receive a base amount of $326,714 from the wife's superannuation interest, with corresponding adjustments to her entitlements. The parties were to share the proceeds from the sale of a camper trailer equally and to cancel a joint credit card. Personal property, funds, vehicles, and other assets were to be retained by each party, except as otherwise specified in the orders. Both parties were to be solely responsible for their respective liabilities, with mutual releases from all other claims. In the event of non-compliance with certain orders, the court provided for a default sale of the Suburb B property, with proceeds applied to outstanding liabilities and debts before any remaining balance was paid to Ms Schirmer.
Orders
Orders of the court
SYC 2420 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS SCHIRMER
Applicant
AND:
MR SCHIRMER
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
21 JANUARY 2025
THE COURT ORDERS THAT:
The Suburb B Property
1. Within 42 days of the date of these Orders, the parties shall do all acts and sign all documents necessary at the wife’s expense to:-
(a) transfer the Husband’s interest in the property situate at and known as C Street, Suburb B in the state of NSW being the whole of the land comprised in folio identifier … (‘the Suburb B property”) to the Wife; and
(b) discharge the joint current mortgage and all liabilities secured over the Suburb B property and the Wife shall refinance all liabilities into her sole name.
2. Simultaneously with Order 1, the Wife shall pay to the Husband the sum of $1,000,758 (“the settlement sum”).
3. Upon completion of the transfer pursuant Order 1, the Wife shall indemnify the Husband in respect of all liability, including any tax liability, penalty or interest in respect of such tax liability, actions, claims, suits and demands, past, present and future in respect of the Suburb B property.
4. Pending the transfer of the Suburb B property, save and except to comply with Orders 1 and 2 above, the parties are hereby restrained from further encumbering and/or increasing liabilities secured over the Suburb B property without the prior written consent of the other party.
E Pty Ltd
5. The Husband retains all of his interest in his business known as E Pty Ltd and indemnifies the Wife in relation to any liabilities whatsoever owed to or by (including but not limited to liabilities to the Australian Taxation Office, and any Division 7A loans) and associated with the said business.
Superannuation
6. Pursuant to s 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the Wife’s interest in Super Fund 1 (“the Fund”) (Number …) of which D Limited is the trustee (“the Trustee”), the Husband shall be entitled to be paid a base amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) and that there be a corresponding reduction to the entitlement of the Wife whose splittable payment would have been paid but for this Order.
7. For the purpose of Order 6 herein the base amount the Husband is to receive from the Wife’s superannuation interest is $326,714
8. Having been accorded procedural fairness in relation to the making of these Orders, the Orders bind the Trustee of the Fund.
9. The operative time for Order 6 herein is the tenth business day from the date that the Fund is served with these Orders.
10. The parties shall be equally liable for the costs, if any, incurred by the Trustee in giving effect to the splitting order.
The Trailer
11. Within 14 days from the date of these Orders the parties will do all acts and things necessary to cause the Camper Trailer to be sold by Facebook, marketplace or any other agreed method and for the sale proceeds to be shared equally. Any cost incurred to sell the property or dispose of the property shall be borne equally between the parties. If the camper trailer has not been sold within 30 days of its initial listing then the parties shall dispose of the trailer by an agreed method such as selling parts or a vehicle wreckage service and the parties shall share equally in the cost of giving effect to this Order.
The Joint Credit Card
12. Within 42 days of the date of these Orders:-
(a) the wife shall do all such things as are necessary to discharge all and any liability arising from the F Bank Visa Card account #...62; and
(b) upon the Wife’s compliance with Order 12(a) the parties shall cancel the said credit card.
Retention of Property
13. Except as otherwise provided herein the Respondent Husband shall retain, to the exclusion of the Wife, all of his right, title and interest in the following:
(a) all personal property, jewellery, furniture and other chattels currently in his possession, custody or control;
(b) all funds standing to his credit in any Bank, Credit Union or Building Society account
(c) any motor vehicles registered in his name;
(d) his trailer;
(e) any shares held by him in any public or private companies;
(f) all and any leave, long service leave or any other employment entitlements or benefits held by him;
(g) any superannuation entitlement(s) he has an interest in including his Super Fund 2 entitlements;
(h) any interest held by him with respect to a business or partnership;
(i) any tax refund he receives subsequent to these Orders;
(j) all and any other property of whatsoever nature.
14. Except as otherwise provided herein the Applicant Wife shall retain, to the exclusion of the Husband, all of her right, title and interest in the following:
(a) all personal property, jewellery, furniture and other chattels currently in her possession custody or control;
(b) all funds standing to her credit in any Bank, Credit Union or Building Society account;
(c) any shares held by her in any public or private companies;
(d) all and any leave, long service leave or any other employment entitlements or benefits held by her;
(e) any superannuation entitlement(s) she has an interest in;
(f) any interest held by her with respect to a business or partnership;
(g) any tax refund she receives subsequent to these Orders;
(h) all and any other property of whatsoever nature.
Indemnity and Release
15. The Husband shall be solely responsible for and meet the payment of all liabilities in the Husband’s sole name excluding any liabilities specifically dealt with in these Orders and the Husband indemnify and keep indemnified the Wife from any liability however arising.
16. The Wife shall be solely responsible for and meet the payment of all liabilities in the Wife’s sole name excluding any liabilities specifically dealt with in these Orders and the Wife indemnify and keep indemnified the Husband from any liability however arising.
17. Save and except for all sums to be paid pursuant to these Orders and for any indemnity, warranty, covenant or representation given by these Orders, each party hereto shall release the other from all sums of money, actions, proceedings, accounts, claims, demands, costs and expenses of any kind whatsoever which either party now has or at any time heretofore had, or but for these Orders might have had against the other for or on account of or in relation to any acts, cause, matter or thing whatsoever.
Default Sale
18. In the event the Wife fails to comply with Order 2 herein then on the 56th day from the date of these Orders, the parties shall do all acts and sign all documents necessary to list the Suburb B property for sale as set out in the following manner:
(a) The parties shall appoint a local real estate agent as agreed between them ("the agent"), or failing agreement, the Husband shall nominate the names of 3 agents to the Wife and the Wife shall select one from the list within 7 days; should the Wife not nominate the agent from the list the Husband provides within 7 days, the Husband shall be at liberty to select any agent from the list to be appointed;
(b) The parties shall appoint a solicitor/conveyancer as agreed between them ("the solicitor"), or failing agreement, the Husband shall nominate the a solicitors to the Wife and the Wife shall select one from the list within select one from the list within 7 days the Husband shall be at liberty to select any solicitor from the list to be appointed.
(c) The Suburb B property shall be initially sold via public auction, with such auction to occur within six (6) weeks of the property being listed for sale by the agent, with the reserve price to be as agreed between the parties, and failing agreement as recommended by the agent;
(d) If the Suburb B property remains unsold after a period of 2 weeks following the auction in 1.3 above, the parties shall do all acts and things and sign all documents necessary to list the property for sale via private treaty for a 6-week period thereafter;
(e) If the Suburb B property remains unsold after the private treaty period in 1.4 above, the Suburb B property shall be listed for sale via public auction again, with such auction to occur within a further four (4) week period, with the reserve price to be as agreed between the parties, and failing agreement as recommended by the agent.
(f) The parties shall cooperate in every way with the agent and solicitor, including, without limiting the generality of the foregoing:
(i) Making the key and alarm codes (if any) available to the agent;
(ii) Signing all documents requested by the agent to sell the Suburb B property;
(iii) Executing a contract for sale in the form prepared by the solicitors having the contract of sale at the sale price;
(iv) Allowing the inspection of the Suburb B property at all times as requested by the agent;
(v) Doing all necessary repairs or improvements as recommended by the agent, with such repairs/improvements to be shared equally by the parties;
(vi) Ensuring the Suburb B property, including the grounds, are in a neat and clean condition at the time of inspection by the agent and any prospective purchaser;
(vii) Doing or saying nothing to hinder or prevent a sale being effected.
19. Upon settlement of the sale of the Suburb B property pursuant to Order 18 above, the parties shall apply the proceeds of sale in the following or priority:
(a) In payment of agent's commission, advertising, marketing and auction expenses in relation to the sale;
(b) In payment of legal costs and disbursements in relation to the sale;
(c) In payment and discharge of all mortgages, loans, charges and encumbrances in respect of the Suburb B property, including the mortgages owed to F Bank; and
(d) In payment of the balance thereafter remaining as to:
(i) The sum referred to in Order 2 plus interest at the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to accrue from the date of non-compliance until final payment; and
(ii) The remainder to the Wife.
Omnibus
20. Except as otherwise provided for in these Orders, the Wife and the Husband each be the sole legal and beneficial owners of all items of all property including household contents, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively to the exclusion of the other.
21. Except as otherwise provided for in these Orders, the parties are each solely entitled to the exclusion of the other to all financial resources of whatsoever nature and kind in their name, possession, or control and to which they are or may become entitled.
22. Except as otherwise provided for in these Orders, each party shall retain to the exclusion of the other, sole responsibility for all and any liability currently in their names.
23. Each party shall do all things necessary including providing all consents to give effect to these Orders in the time periods described in these Orders.
Section 106A Order
24. In the event that either party fails or neglects to sign any document pursuant to these Orders, a Registrar of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed to execute such documents in the name of the party in default so as to give validity and operation to these Orders pursuant to s 106A of the Family Law Act 1975 (Cth) upon being satisfied of such failure or neglect by way of affidavit evidence.
Costs
25. Should any party wish to make an application for costs of or incidental to these proceedings, they are to file and serve within 28 days of the date of these orders an Application in a Proceeding specifying the orders sought as to costs and any affidavit in support thereof of no more than 5 pages and 5 annexures.
26. In the event that no application is filed pursuant to Order 25 then all applications for costs are dismissed.
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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