FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Seward & Seward [2023] FedCFamC2F 1578
File number(s): LNC 708 of 2022 Judgment of: JUDGE TURNBULL Date of judgment: 8 December 2023 Catchwords: FAMILY LAW – PROPERTY- 33 year marriage- assessment of contributions – weight to be given to the Husband’s initial contributions of real estate and two workers compensation payments received during the marriage – whether there should be any adjustment to either party for other factors set out a s79(4) (d)–(g) – whether the Husband should be responsible for the payment of outgoings relating to the various properties and the company before they are all sold. Legislation: Family Law Act 1975 (Cth) ss 79(4)(a)–(c), 79(4)(d)–(g), 75(2) Cases cited: Aleksovski v Alexsovski [1996] FamCA 111
Beck & Beck (No 2) (1983) FLC 91-318
Briginshaw v Briginshaw (1938) 60 CLR 336
Clauson & Clauson (1995) FLC 92-595
Dawes & Dawes [1989] FamCA 71
Dovgan & Dovgan [2021] FamCA 306
Gadhavi & Gadhavi [2023] FedCFamC1A 117
Griffiths & Kerkemeyer [1977] HCA 45
Hickey & Hickey & Hickey [2003] FamCA 395
Jabour & Jabour [2019] FamCAFC 78
Lotta & Lotta [2017] FamCA 50
Mallet & Mallet [1984] 156 CLR 605
Stanford & Stanford (2012) 247 CLR 108
Teal & Teal [2010] FamCAFC 120
Division: Division 2 Family Law Number of paragraphs: 90 Date of last submission/s: 9 November 2023 Date of hearing: 8 & 9 November 2023 Place: Launceston Counsel for the Applicant Ms Trezise Solicitor for the Applicant Andrea Trezise Counsel for the Respondent Mr Kitto Solicitor for the Respondent James C Kitto ORDERS
LNC 708 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SEWARD
Applicant
AND: MR SEWARD
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.SALE OF TOWN C
(a)The property known as and situated at B Street, Town C in Tasmania, comprised in Certificate of Title Volume … Folio … (“Town C”) be immediately listed for sale on the below-mentioned terms and conditions: -
The Selling Agent, Price and Terms & Conditions of the Sale
(i)The selling agent for Town C will be Mr D of E Company situate at F Street, City G (hereinafter referred to as the “selling agent”); Alternatively: a selling agent or agent(s) the parties agree in writing or in default of agreement as set out below;
(ii)The listed sale price and method of sale and manner of advertising for sale of Town C will be as agreed by the parties in writing and in default of agreement as set out below;
(iii)The terms and conditions of sale of Town C, including the acceptance or rejection of any offer to purchase Town C, will be as agreed between the parties and in default of agreement as set out below;
In the absence of the parties’ agreement - Default Provisions
(iv)In default of agreement between the parties about any of the matters relating to the sale of Town C:
A.either party may…
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- [2023] FedCFamC2F 1578
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CaseChat Overview and Summary
The court found that while Mr Seward’s initial contributions, including real estate and workers' compensation payments, were significant, they did not outweigh the overall contributions made by both parties during the marriage. The court also considered other factors such as the duration of the marriage and the contributions made by each party in terms of homemaking and child-rearing. The court concluded that an adjustment should be made to reflect these contributions. Regarding the outgoings, the court ordered that Mr Seward should be responsible for paying these expenses pending the sale of the properties and the business.
In its orders, the court mandated the immediate sale of two properties and a business, with specific instructions on the terms and conditions of the sales. It also detailed the distribution of sale proceeds and the payment of outgoings. Furthermore, the court ordered the winding up of a company associated with the business. The surplus monies from these sales were to be distributed between the parties in a 49% to 51% ratio, respectively. The court also addressed the division of superannuation interests, ensuring compliance with the Family Law Act 1975 (Cth). Finally, the court directed the transfer of specific personal assets between the parties to finalise their property settlement.
Orders
Orders of the court
LNC 708 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS SEWARD
Applicant
AND:
MR SEWARD
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1. SALE OF TOWN C
(a) The property known as and situated at B Street, Town C in Tasmania, comprised in Certificate of Title Volume … Folio … (“Town C”) be immediately listed for sale on the below-mentioned terms and conditions: -
The Selling Agent, Price and Terms & Conditions of the Sale
(i) The selling agent for Town C will be Mr D of E Company situate at F Street, City G (hereinafter referred to as the “selling agent”); Alternatively: a selling agent or agent(s) the parties agree in writing or in default of agreement as set out below;
(ii) The listed sale price and method of sale and manner of advertising for sale of Town C will be as agreed by the parties in writing and in default of agreement as set out below;
(iii) The terms and conditions of sale of Town C, including the acceptance or rejection of any offer to purchase Town C, will be as agreed between the parties and in default of agreement as set out below;
In the absence of the parties’ agreement - Default Provisions
(iv) In default of agreement between the parties about any of the matters relating to the sale of Town C:
A. either party may request the President of the Real Estate Institute of Tasmania (“the President”) to determine the matter in dispute;
B. the cost of the President’s determination must be shared equally between the parties.
For Auctions
(v) If Town C is offered for sale by way of auction the parties must each pay and be responsible for payment of one-half (50%) of all auction expenses payable before the Town C is auctioned.
Compliance
(vi) Both parties must:
A. co-operate in every way with the selling agent(s) during the sale of Town C, including allowing inspection of Town C at times reasonably requested by the selling agent or agent(s); and
B. ensure that Town C is in a neat and clean condition at the time of inspection by the prospective purchaser(s).
C. accept all reasonable advice from the selling agent(s) concerning the following: -
(1) the method/manner of sale;
(2) the listing/reserve price;
(3) the marketing strategy of Town C;
(4) preparation of Town C for sale.
(b) Contemporaneously with Order 1(a) above, the parties shall do all acts and things necessary to commence the process of discharging the H Company Mortgage no. … (‘the H Company Mortgage’) registered against the title to Town C, to the intent and effect that the parties will be ultimately released entirely from that liability once Town C sells.
(c) From the date of this Order and pending the settlement of the sale of the Town C property, the Respondent shall pay the following: -
(i) all mortgage payments payable in relation to the H Company Mortgage until it is discharged;
(ii) all Council rates, Land Tax and Water charges for Town C;
(iii) all insurance premiums for Town C for a value sufficient for a complete rebuild of each improvement situate thereon.
Distribution of Sale Proceeds:
(d) Upon the completion of the sale of Town C, the net sale proceeds are to be distributed as follows: -
(i) to discharge the H Company Mortgage; and
(ii) to pay all selling costs, commissions and expenses of the sale including agents fees and legal / conveyancing fees;
(iii) all Council rates, land tax and water charges that remain owing; and
(iv) the balance to be held in Trust with the Applicant’s solicitors until the calculation can be made pursuant to paragraph 5 of this order.
2. SALE OF J STREET, TOWN K, QLD (“TOWN K”)
(a) The property situate at J Street, Town K (CT …) “Town K” be immediately listed for sale on the following terms and conditions:
The Selling Agent, Conveyancer, Price and Terms & Conditions of the Sale
(i) The selling agent for Town K will be as follows: -
Real Estate Agent: Mr L of M Company
Address: N Street, City O
Ph: …
E: …
Alternatively: a selling agent or agents the parties agree in writing or in default of agreement as set out below;
(ii) The Conveyancer for the sale of Town K will be as follows: -
Conveyancer: P Law Firm
Address: Q Street, Suburb R, Qld
Ph: …
E: …
(iii) The listed sale price and method of sale and manner of advertising for sale of Town K will be as agreed by the parties in writing and in default of agreement as set out below;
(iv) The terms and conditions of the sale of Town K, including the acceptance or rejection of any offer to purchase Town K, will be as agreed between the parties and in default of agreement as set out below;
In the absence of the parties’ agreement - Default Provisions
(v) In default of agreement between the parties about any of the matters relating to the sale of Town K:
A. either party may request the President of the Real Estate Institute in the relevant State or their nominee (“the President”) to determine the matter in dispute; and
B. the cost of the President’s determination must be shared equally between the parties.
For Auctions
(vi) If Town K is offered for sale by way of auction the Parties must each pay and be responsible for payment of one-half (50%) of all auction expenses payable before the Property is auctioned.
Compliance
(vii) Both parties must:
A. co-operate in every way with the selling agent(s) during the sale of Town K, including allowing inspection of Town K at times reasonably requested by the selling agent or agent(s); and
B. ensure that Town K is in a neat and clean condition at the time of inspection by the prospective purchaser(s);
C. accept all reasonable advice from the selling agent(s) concerning the following: -
(a) the method/manner of sale;
(b) the listing/reserve price;
(c) the marketing strategy of Town K; and
(d) preparation of the said property for sale.
(b) From the date of Order, and pending the sale of Town K, the Respondent shall pay the following:
(i) all mortgage payments payable in relation to the S Bank Mortgage until the aforesaid mortgage is discharged;
(ii) all Council rates, land tax and water charges for Town K; and
(iii) all insurance premiums for Town K for a value sufficient for a complete rebuild of each improvement situate thereon.
Distribution of Sale Proceeds:
(c) Upon the completion of the sale of Town K, the net sale proceeds are to be distributed as follows: -
(i) to discharge the S Bank Mortgage number … (hereinafter referred to as the “S Bank Mortgage”); and
(ii) to pay all selling costs, commissions and expenses of the sale including agents’ fees and legal / conveyancing fees.
(iii) all Council rates, land tax and water charges that remain owing; and
(iv) the balance to be held in Trust with the Applicant’s solicitors until the calculation can be made pursuant to paragraph 5 of this order.
3. T COMPANY (“THE BUSINESS”)
(a) The parties shall immediately list for sale all their right, title and interest in the Business known as T Company (“the Business”), on the below-mentioned terms and conditions:
The Selling Agent, Price, and Terms & Conditions of the Sale
(i) The selling agent for the Business will be Ms U of V Company (hereinafter referred to as the “selling agent”); Alternatively: a selling agent or agent(s) the parties agree in writing or in default of agreement as set out below;
(ii) The listed sale price and method of sale and manner of advertising for sale of the Business will be as agreed by the parties in writing and in default of agreement as set out below;
(iii) The terms and conditions of sale of the Business, including the acceptance or rejection of any offer to purchase the Business, will be as agreed between the parties and in default of agreement as set out below;
In the absence of the parties’ agreement - Default Provisions
(iv) In default of agreement between the parties about any of the matters in relation to the sale of the Business:
A. either party may request the President of the Real Estate Institute of Tasmania (“the President”) to determine the matter in dispute;
B. the cost of the President’s determination must be shared equally between the parties.
For Auctions
(v) If the Business is offered for sale by way of auction the parties must each pay and be responsible for payment of one-half (50%) of all auction expenses payable before the Business is auctioned.
Compliance
(vi) Both parties must:
A. co-operate in every way with the selling agent(s) during the sale of the Business, including allowing inspection of the Business, its assets, and financial records, at times reasonably requested by the selling agent or agent(s); and
B. ensure that the Business, its assets and financial records, are in a neat and clean condition / order at the time of inspection by the prospective purchaser(s).
C. accept all reasonable advice from the selling agent(s) concerning the following: -
(a) the method/manner of sale;
(b) the listing/reserve price;
(c) the marketing strategy of the Business;
(d) preparation of the said Business for sale.
D. Utilise the services of Mr W of X Company, Chartered Accounts of City G (“the accountant”) for the purpose of provision of Financial Statements and other information required by the selling agent or prospective purchasers of the Business.
(b) The net proceeds from the sale of the Business (after payment of all selling agent’s commission, marketing costs, conveyancing costs and all other costs and expenses incidental to the sale of the Business), shall – provided it is a permissible and tax effective use of funds, given that the company will be wound up — be applied to pay down the outstanding balance of the H Company Mortgage but if that mortgage has been discharged or it is not a permissible or tax effective use of such funds the balance shall be held in Trust to be distributed pursuant to paragraph 5 of this Order.
4. Y PTY LTD (“THE COMPANY”):
(a) Upon sale of the Business the parties shall jointly instruct at equal cost, the accountant to wind up the Company.
(b) From the date of this Order and pending winding up of the Company, the Respondent, on behalf of the Company using Company funds, shall pay the following: -
(i) any and all Business liabilities including past, present and future;
(ii) all Business insurances;
(iii) all Business trade/supplier accounts;
(iv) all Licence fees required to conduct the business of the Business;
(v) any and all Income Tax, PAYGW Tax and GST liabilities payable now and/or in the future, attached to the Business.
(c) The net proceeds from the winding up of the Company (after payment of all selling agent’s commission, marketing costs, taxes, conveyancing costs and all other costs and expenses incidental to the sale of the Company), shall be applied to pay down the outstanding balance of the H Company Mortgage but if that mortgage has been discharged the balance shall be held in Trust to be distributed pursuant to paragraph 5 of this Order.
5. DISTRIBUTION OF SURPLUS MONIES FROM THE ABOVE-MENTIONED SALES
(a) Once all net balances (if any) from the sale of Town C, Town K, the Business, and the winding up of the Company (‘the total net balances’) have been received pursuant to this Order, then there be a division of all property of the parties (excluding superannuation) in the proportion 49% to the Applicant and 51% to the Respondent, calculated as follows: -
(i) WHERE:
A. = the net assets retained by the Applicant — ($200,443.81);
B. = the net assets retained by the Respondent — ($56,795);
C. = the total net balances.
(ii) AND WHERE A+B+C = I;
A. the Applicant shall receive a sum equal to (I x 49%) – A, and
B. the Respondent shall receive a sum equal to (I x 51%) – B.
6. SUPERANNUATION
(a) Paragraphs 6(a) – 6(f) (inclusive) of this Order are binding on Z Company, the Trustee of Super Fund 1, account number …09 (‘the Fund’) and it is declared that these Orders are made in accordance with s90XT(1)(a) of the Family Law Act 1975 (Cth).
(b) Pursuant to s 90XT(4) of the Family Law Act 1975 (Cth) the base amount allocated to Ms Seward (the Applicant) out of the interest of the husband, Mr Seward (the Respondent) in the fund is $67,155 (“the base amount”).
(c) In accordance with s 90XT (1)(a) of the Family Law Act 1975 (Cth) whenever the Trustee of the Fund makes a splittable payment from the interest of the Respondent in the fund the Applicant shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.
(d) These Orders have effect from the operative time and the operative time is the fourth (4th) business day after the day on which the final sealed Orders are served upon the Trustee.
(e) Until the Trustee of the Fund has effected the splittable payment in favour of the Applicant pursuant to Order 6(b) herein the Trustee of the said Fund, the Respondent, his personal representatives or any other persons acting on his or their behalf be and are hereby restrained from disposing of all or any amount payable to the Respondent and/or his personal representatives received by or held in trust for the benefit of him or them.
(f) A sealed copy of these Orders be served by the solicitors for the Applicant upon the Trustee of the fund within fourteen (14) days of the date of this Order.
7. OTHER PROPERTY
(a) From the date of this Order, the Respondent shall transfer to the Applicant and where necessary, transfer to her any right, title or interest he may have in the following:-
(i) a Motor Vehicle 1;
(ii) all chattels in the Applicant’s possession (including household furniture and effects formerly used by the parties jointly but now in the possession or control of the Applicant);
(iii) all savings, investments and shareholding(s) held by the Applicant or registered in her sole name;
(iv) the AA Company investment held in trust by Andrea Trezise, Barrister & Solicitor; and
(v) the lawnmower;
to the intent that the Applicant shall be the sole and absolute owner thereof.
(b) The Applicant shall transfer to the Respondent any right, title or interest she may have in the following:-
(i) Motor Vehicle 2;
(ii) all chattels in the Respondent’s possession (including household furniture and effects formerly used by the parties jointly but now in the possession or control of the Respondent);
(iii) all the Respondent’s tools & equipment listed in the document annexed hereto and marked with the letter “A”, save and except for the lawnmower; and
(iv) all savings, investments and shareholding(s) held by the Respondent or registered in his sole name;
to the intent that the Respondent shall be the sole and absolute owner thereof.
8. LIBERTY TO APPLY
(a) The parties have liberty to apply in relation to the implementation of this Order.
Annexure “A”
Respondent/Husband Tools & Equipment
Item
Value
Motor Vehicle 3
22,000
Motor Vehicle 4
3,500
Motor Vehicle 5
750
Garden Tools
300
Aluminium Ladders
500
Miscellaneous Hand Tools
300
Workshop Bench
450
Gun Safe – Compliant
350
Shot Gun
120
Gun Safe - Non Compliant
50
Ice Box
120
Tree Saw
180
Grass Trimmer
120
Grinder
450
Panel Saw
1,800
Large Saw
400
Lawn Mower
400
Tool Chests
2,750
Hand Tools
800
Furniture
425
Cement Mixer
350
Wheel Barrows
120
Furniture
1,600
Total
37,835
37,435
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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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