Scrivener and Neill - [2016] FCCA 1758

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCRIVENER & NEILL

[2016] FCCA 1758

Catchwords:
FAMILY LAW – Final hearing parenting and property - parenting issues settled after evidence taken from the family report writer – property issues remain in dispute – initial contributions – business income.

Legislation:

Family Law Act 1975, ss.4(1), 78, 79(2), 79(4), , 90MT, 90SF(3), 90SM(1), 90SM(3), 90SM(4), 106A

Cases cited:

Pierce v Pierce (1998) FLC 92-844

Williams & Williams [2007] FamCA 313
Manolis & Manolis (No. 2) [2011] FamCAFC 105
Agius & Agius [2010] FamCAFC 143

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143

Stanford & Stanford [2012] HCA 52
Watson & Ling (2013) 49 Fam LR 303
C & C (2005) FLC 93-220
Jarrott and Jarrott [2012] FamCAFC 29
Waters & Waters (1981) FLC 91-019
Smith & Smith (1991) FLC 92-261
Docters Van Leeuwen & Docters Van Leeuwen (1990) FLC 92-148

Applicant:

MR SCRIVENER

Respondent:

MS NEILL

File Number:

MLC 7589 of 2015

Judgment of:

Judge Harland

Hearing dates:

9, 10 and 11 May 2016

Date of Last Submission:

8 June 2016

Delivered at:

Dandenong

Delivered on:

13 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr Hannan

Solicitors for the Applicant:

Pearsons Lawyers Pty Ltd

Counsel for the Respondent:

Mr Duckett

Solicitors for the Respondent:

Ccs Lawyers

ORDERS

That there be a division of the net assets (excluding superannuation set out paragraph 9 of these reasons) of the parties as to 49% to the Respondent and 51% to the Applicant (“the settlement amount”).
That the parties forthwith do all things and sign all documents as are required to list the real property at Property P and being the whole of the land comprised of title reference Volume (omitted) (“the Property P property”) for auction at the earliest possible date at a reserve to be agreed between the parties and failing agreement at the reserve recommended by the Real Estate Agent.
Upon the sale of the Property P property the proceeds be applied as follows:
(a)Firstly, to pay all costs, commissions and expenses arising from the sale;
(b)Secondly, to pay all outstanding outgoings associated with the property;
(c)Thirdly, the sum required to discharge the mortgages encumbering the properties namely the (omitted) Bank mortgage (account number (omitted)) and the (omitted) Bank loan (account number (omitted));
(d)Fourthly, to pay $50,000 to the Applicant by way of part property settlement; and
(e)Fifthly, to pay the balance to the Respondent.
That within 60 days of the date of the signing of the contract of sale for Property P property (“the settlement date”):
(a)The Applicant do all things and sign all documents so as to discharge all remaining joint mortgages (including line of credit accounts); and
(b)The Applicant pay to the Respondent the balance of the settlement amount.
That contemporaneously with the discharge of all joint mortgages and payment of the settlement amount pursuant to these orders the Respondent do all such acts and things and sign all necessary documents to transfer to the Applicant all her right, title and interest…

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 Scrivener and Neill

Details

AGLC: Scrivener and Neill [2016] FCCA 1758
Case: [2016] FCCA 1758
Decision Date: 13 July 2016

CaseChat Overview and Summary

This matter concerned the division of net assets between the Applicant, Scrivener, and the Respondent, Neill, in the Federal Circuit Court of Australia, presided over by Judge Harland. The dispute involved the distribution of various properties, including real estate, a business, and superannuation entitlements, as well as the resolution of liabilities associated with a family trust.

The court was required to determine the appropriate division of the parties' net assets, excluding superannuation, and to make orders for the sale and distribution of proceeds from specific properties. Further issues included the discharge of joint mortgages, the transfer of property interests, the equalisation of superannuation benefits, and the allocation of liabilities and interests in a family trust and a company. The court also needed to address the parties' respective entitlements to other assets and to make provision for the execution of documents if a party failed to comply with the orders.

The court ordered a division of net assets as to 51% to the Applicant and 49% to the Respondent. It directed the sale of a property, with proceeds to be applied first to sale costs, then outgoings and mortgage discharges, followed by a $50,000 payment to the Applicant, and the balance to the Respondent. The Applicant was ordered to discharge remaining joint mortgages and pay the balance of the settlement amount to the Respondent within 60 days of the sale contract. Contemporaneously, the Respondent was to transfer her interest in two other properties to the Applicant. Provisions were made for the sale of these latter properties if the Applicant could not meet his obligations. The court also ordered an equalisation of superannuation, requiring the Applicant to pay $96,000 to the Respondent's nominated superannuation fund, with the Respondent relinquishing her interest in the Applicant's superannuation fund. The Applicant was to retain sole interest in a business and a family trust, while the Respondent was to retain other specified assets. The court further ordered that the Registrar of the Federal Circuit Court be authorised to execute documents on behalf of a party who failed to comply with the orders.

Orders

Orders of the court

That there be a division of the net assets (excluding superannuation set out paragraph 9 of these reasons) of the parties as to 49% to the Respondent and 51% to the Applicant (“the settlement amount”).

That the parties forthwith do all things and sign all documents as are required to list the real property at Property P and being the whole of the land comprised of title reference Volume (omitted) (“the Property P property”) for auction at the earliest possible date at a reserve to be agreed between the parties and failing agreement at the reserve recommended by the Real Estate Agent.

Upon the sale of the Property P property the proceeds be applied as follows:

(a) Firstly, to pay all costs, commissions and expenses arising from the sale;

(b) Secondly, to pay all outstanding outgoings associated with the property;

(c) Thirdly, the sum required to discharge the mortgages encumbering the properties namely the (omitted) Bank mortgage (account number (omitted)) and the (omitted) Bank loan (account number (omitted));

(d) Fourthly, to pay $50,000 to the Applicant by way of part property settlement; and

(e) Fifthly, to pay the balance to the Respondent.

That within 60 days of the date of the signing of the contract of sale for Property P property (“the settlement date”):

(a) The Applicant do all things and sign all documents so as to discharge all remaining joint mortgages (including line of credit accounts); and

(b) The Applicant pay to the Respondent the balance of the settlement amount.

That contemporaneously with the discharge of all joint mortgages and payment of the settlement amount pursuant to these orders the Respondent do all such acts and things and sign all necessary documents to transfer to the Applicant all her right, title and interest in the properties situated at Property W and being the whole of the land comprised in title reference Volume (omitted) (“the Property W property”) and Property M and being the whole of the land comprised of title reference Volume (omitted) (“the (omitted) property”).

That in the event the Applicant is unable to obtain a discharge of all joint mortgages and pay the total of the settlement amount owing to the Respondent pursuant to these orders, the parties forthwith do all things and sign all documents as are required to list the Property W property and the Property M property for auction at the earliest possible date at a reserve to be agreed between the parties and failing agreement at the reserve recommended by the Real Estate Agent agreed to by the parties.

Upon the sale of the Property M property the proceeds be applied as follows:

(a) Firstly, to pay all costs, commissions and expenses arising from the sale;

(b) Secondly, to pay all outstanding outgoings associated with the property;

(d) Fourthly, to pay any capital gains tax;

(e) Fifthly, to pay the balance of any settlement amount owing to the respondent ;

(f) Any balance left to the Respondent.

That the parties hold their respective interests in the Property P property, the Property W property and the Property M property (“the properties”) on Trust pursuant to these orders.

That until transfer and/or sale of the properties the Applicant have sole use and occupation of the properties and during such right and occupation he pay all instalments pursuant to all mortgages and all rates and taxes and like apportionable outgoings on the properties as they fall due and indemnify the Respondent with respect to all and any of the amounts payable.

10.

That until the transfer and/or sale of the properties neither party encumber the properties or redraw any available funds without the consent in writing of the other party or court order.

11.

That within 14 days of the date of these orders the Respondent do all acts and things and sign all such documents as may be required to do the following at the expense of the Applicant:

(a) Resign as Director from (omitted) Pty Ltd ACN (omitted) (“(omitted) Pty Ltd”);

(b) Transfer her shareholding in (omitted) Pty Ltd to the Applicant;

(d) Relinquish all of her right and interest in (omitted) Pty Ltd;

(e) Assign to the Respondent all of her right, title and interest in her beneficiary loan account including unpaid present entitlements within the Scrivener Family Trust ABN (omitted) (“the Trust”);

(f) Relinquish all of her rights to capital and/or income in the Trust and otherwise assign to the Applicant any position she holds in the Trust including her rights as a beneficiary and/or appointer.

12.

Contemporaneously with paragraph 5 herein:

(a) The Applicant indemnify the Respondent against all liabilities of whatsoever nature in relation to the Scrivener Family Trust (ABN (omitted)) arising whether by reason of the Respondent having been a beneficiary of the Trust or a director of the Trustee ((omitted) Pty Ltd) including but not limited to:

(i) Liabilities which the Trustee/s of the Trust and the Trust now has or may have against the Wife at any time/s up to and including the date of these orders; and

(ii) Any loan amount which may be outstanding (if any) by the Respondent to the Trust.

(b) The Applicant be and is hereby restrained from making any further distributions from the Trust to the Respondent.

13.

That there be an equalisation of the parties' superannuation benefits and entitlements as follows:

(a) Within 30 days of settlement of the sale of the Property P property or the date of Final Orders being made by the Court, whichever is the latter, the Applicant pay into the (omitted) Superannuation Fund's ("the Fund") bank account sufficient monies to ensure the Fund can:

(i) Pay into the Respondent's nominated superannuation fund an amount of $96,000 (“the payment”);and

(ii) Meet the Fund's normal operating expenses.

(b) That contemporaneously with the payment:

(i) The Respondent relinquish all of her right, title and interest in the (omitted) Superannuation Fund (ABN (omitted)); and

(ii) The Respondent complete and furnish to the Trustee of the Fund a roll-over form nominating the Respondent's chosen registered superannuation fund; and

(iii) Within 24 hours of receiving the completed rollover form the Trustee of the Fund will transfer the sum of $96,000 to the Respondent's nominated fund.

14.

That the Applicant shall retain for his sole and exclusive use, enjoyment and benefit all other items of property (both real and personal and including choses-in-action and financial resources) in his name possession and/or control including but not limited to:

(a) The business known as (omitted) Pty Ltd trading as (omitted business);

(b) The stock of (omitted) Pty Ltd;

(d) Mercedes van; and

(e) All chattels, cash and assets otherwise in his possession.

15.

That the Respondent shall retain for her sole and exclusive use, enjoyment and benefit all other items of property (both real and personal and including choses-in-action and financial resources) in her name possession and/or control including but not limited to:

(a) Honda (omitted);

(b) All chattels, cash and assets otherwise in her possession.

16.

That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act that the Registrar of the Federal Circuit Court of Australia, Dandenong Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.

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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