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SELBY & ROBILLIARD

SELBY & ROBILLIARD

Case [2018] FamCA 214 9 April 2018

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FAMILY COURT OF AUSTRALIA

SELBY & ROBILLIARD

[2018] FamCA 214

FAMILY LAW – PROPERTY – Where the majority of assets are the business interests valued on a net asset backing basis – where there is an initial contribution to consider. How to assess the relevance of that initial contribution.

FAMILY LAW – CHILD SUPPORT – departure – not just and equitable to make the order.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Income Tax Assessment Act 1997 (Cth)

Agius & Agius [2010] FamCAFC 143
Brodie & Brodie [2009] FamCAFC 6
C and C (2005) FLC 93-220
Cabbell & Cabbell [2009] FamCAFC 205
Fields and Smith (2015) FLC 93,638
Gould and Gould (1996) FLC 92-657
GWH & PGH [2005] FamCA 388
Lovine and Connor and Anor (2012) FLC 93-515
Norbis and Norbis (1986) FLC 91-712
Petruski & Balewa [2013] FamCAFC 15
Robb and Robb (1995) FLC 92-555
Spiteri and Spiteri (2005 ) FLC 93-214
Stanford v Stanford (2012) FLC 93-518
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Townsend and Townsend (1995) FLC 92-569
Trask and Westlake (2015) FLC 93-662
Turner & Turner and Anor [2016] FamCAFC 121
Wah & Golay [2016] FamCAFC 67
Wallis and Manning (2017) FLC 93-759
Williams & Williams [2007] FamCA 313

APPLICANT:

Mr Selby

RESPONDENT:

Ms Robilliard

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:

MLC

7778

2015

DATE DELIVERED:	9 April 2018
PLACE DELIVERED:	Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

19, 20, 21 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Puckey

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

RNG Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Glass

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

The parties forthwith do all things necessary to place the property at B Street, Suburb C on the market for sale.
Both parties are jointly responsible for the sale including:
(a)       The appointment of the selling agents;
(b)       The fixing of sales commissions;
(c)       The appointment of conveyancers;
(d)       The fixing of any reserve price; and
(e)       The determination of the level of other sale-associated expenses.
In default of any agreement as to any issues associated with the sale, the parties have leave to apply to the court by applications supported by affidavit on short notice.
Upon the settlement of the sale of the Suburb C property, the proceeds be paid to the respondent and that amount be substituted for the amount referred to in paragraph [68] of the reasons for judgment this day.
By 27 July 2018 or one month after the settlement of the sale of the Suburb C home, or such other time as is agreed, (“the due date”) the husband pay to the wife an amount equal to 42.5 per cent of the adjusted total in paragraph [68] of the said reasons (“the payment”).
If the husband defaults in respect of the payment by the due date, interest shall commence to run from that date at…

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.

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Details

AGLC: SELBY & ROBILLIARD [2018] FamCA 214
Case: [2018] FamCA 214
Decision Date: 9 April 2018

CaseChat Overview and Summary

In this matter before Cronin J, the parties were engaged in proceedings concerning property settlement and child support. The primary dispute revolved around the valuation and division of the parties' assets, particularly their business interests, which constituted the majority of the matrimonial pool. The court was also required to consider an application for a departure from the child support assessment.

The legal issues before the court included how to assess the relevance of an initial financial contribution made by one of the parties, especially when the majority of the assets were business interests valued on a net asset backing basis. Furthermore, the court had to determine whether it was just and equitable to make a departure order in relation to child support.

The court's reasoning addressed the complexities of valuing business interests and the appropriate weight to be given to initial contributions within the broader context of the parties' contributions and future needs. Regarding child support, the court considered the specific circumstances to ascertain if the standard assessment would be unjust or inequitable. The orders made by the court provided for the sale of a property, the distribution of its proceeds, a payment to the wife, and a division of interests in a self-managed superannuation fund. The court also made provisions for the enforcement of these orders and for the trustee of the superannuation fund to apply to set aside relevant orders if natural justice was denied.

Orders

Orders of the court

The parties forthwith do all things necessary to place the property at B Street, Suburb C on the market for sale.

Both parties are jointly responsible for the sale including:

(a) The appointment of the selling agents;

(b) The fixing of sales commissions;

(d) The fixing of any reserve price; and

(e) The determination of the level of other sale-associated expenses.

In default of any agreement as to any issues associated with the sale, the parties have leave to apply to the court by applications supported by affidavit on short notice.

Upon the settlement of the sale of the Suburb C property, the proceeds be paid to the respondent and that amount be substituted for the amount referred to in paragraph [68] of the reasons for judgment this day.

By 27 July 2018 or one month after the settlement of the sale of the Suburb C home, or such other time as is agreed, (“the due date”) the husband pay to the wife an amount equal to 42.5 per cent of the adjusted total in paragraph [68] of the said reasons (“the payment”).

If the husband defaults in respect of the payment by the due date, interest shall commence to run from that date at the rate fixed under the relevant rules of court and the wife shall have liberty to apply to bring such enforcement action as she is so advised.

In respect of the D Self-Managed Superannuation Fund, of the interest of the applicant, the respondent is entitled to one-third of each splittable payment as it becomes payable and the applicant’s entitlement to those splittable payments is correspondingly reduced.

To the extent that the trustee of the D Self-Managed Superannuation Fund considers that it has not had adequate notice of these orders, and considers that it has thereby be denied natural justice, it has leave to apply to set aside the relevant order providing an application supported by an affidavit is filed by 4.00pm on 8 May 2018.

The solicitors for the applicant forthwith give notice to the trustee of this order and the operative time for its implementation is seven days after the expiration of the notice provision just referred to.

10.

Save as to costs, enforcement and the potential intervention by the trustees of the said superannuation fund, all applications are otherwise dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

SELBY & ROBILLIARD [2018] FamCA 214

Most Recent Citation

SELBY & ROBILLIARD [2018] FamCAFC 159

Cases Citing This Decision

HARLEY & JACOBS [2019] FCCA 458
Citation 1 (Para 20)

…ecision of Selby & Robilliard .[35] In this decision Cronin J cited the Full Court in [X]s & [X]s ,[36] which said that: [34] (1999) FLC 92-844. [35] [2018] FamCA 214. [36] [2007] FamCA 313. a reference to the value of an item at the date of cohabitation without reference to its value to the parties at the time it…
SELBY & ROBILLIARD [2018] FamCAFC 159
Citation 2

…[2018] FamCA 214…

See all citing cases →

Cases Cited

Turner & Turner and Anor [2016] FamCAFC 121
Citation 1 (Para 8)

…Counsel for the applicant pointed to the decision of Turner & Turner and Anor [2016] FamCAFC 121. There, the trial judge dealt with a substantial asset pool but where the husband had refused to participate. He had the control of the assets but interests were held by his family. Where there was an obvious requirement…
WAH & GOLAY [2016] FamCAFC 67
Citation 2 (Para 19)

…In Wah & Golay [2016] FamCAFC 67, the Full Court had to deal with contributions of an overall assessment nature rather than just those at the beginning. The observations of Murphy J with whom Ryan and Aldridge JJ agreed at [11] were: (The trial judge) assessed contributions in the portion 87.5 per cent to the husban…
Petruski & Balewa [2013] FamCAFC 15
Citation 3 (Para 3)

…In Petruski & Balewa [2013] FamCAFC 15, the Full Court noted that the assessment of contributions was an holistic one in which the extent of the contributions of all types in the context of the particular relationship were to be assessed.…
Stanford v Stanford [2012] HCA 52
Citation 4 (Para 1)

…There was no dispute in this case that it was just and equitable to make an order to alter property interests ( Stanford v Stanford (2012) FLC 93-518). After identifying the property in which either or both of the parties has an interest, an assessment must be undertaken of their respective contributions. Whilst all contribu…
Agius & Agius [2010] FamCAFC 143
Citation 5 (Para 5)

…In Agius & Agius [2010] FamCAFC 143, the Full Court contemplated a ten year relationship where a $450,000 Tattslotto prize was brought into the relationship by the wife and the husband had no significant assets. The Tattslotto winner also had two properties and there were other contributions along the way.…
Cabbell & Cabbell [2009] FamCAFC 205
Citation 6 (Para 18)

…In Cabbell & Cabbell [2009] FamCAFC 205 the husband brought in his equity in a legal firm which was later the subject of mergers. The Full Court noted that the husband’s ability to generate profits arose from his equity in the partnership which had commenced prior to cohabitation. Again, there was a finding that save…
Brodie v Brodie [2009] FamCAFC 6
Citation 7 (Para 3)

…Focussing on some of the cases considered as authorities, is illuminating. In Brodie & Brodie [2009] FamCAFC 6 there was a pool of $4.6 million. When the parties began their 10 year relationship, the husband owned the home valued at between $300,000 and $350,000 and at the conclusion of the relationship, it had inc…
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Citation 8 (Para 6)

…In Steinbrenner & Steinbrenner [2008] FamCAFC 193, Coleman J sitting as a single judge on appeal observed the following: [10]The property of the parties was found, uncontroversially for present purposes, to approximate $555 775, the great bulk of which the husband had acquired prior to marriage or was referrable to a…
Williams & Williams [2007] FamCA 313
Citation 9 (Para 12)

…In essence, and consistent with the evidence, the approach that should be adopted here was that set out in Williams & Williams [2007] FamCA 313. There, the Full Court said that a reference to the value of an item at the date of cohabitation without reference to its value to the parties at the time it was sold or at…
Townsend v Townsend [2006] NSWCA 352
Citation 10 (Para 5)

…es could be justified but the other payments were not “premature distributions” in the sense recognised by various authorities of this court (see Townsend v Townsend (1995) FLC 92-569).…
GWH & PGH [2005] FamCA 388
Citation 11 (Para 16)

…In GWH & PGH [2005] FamCA 388 the trial judge had to deal with the husband bringing in a commercial property to which the parties made little or no contribution subsequent to their cohabitation. The value of that property at trial represented about one half of the total assets to be divided. Other assets brought in…

Legislation Cited

Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 1)
Family Law Act 1975 (Cth)
1 mention (from Para 1)
Family Law Rules 2004 (Cth)
1 mention (from Para 6)
Income Tax Assessment Act 1997 (Cth)
1 mention (from Para 5)