Shepherd and Shepherd - [2016] FCCA 3038

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEPHERD & SHEPHERD

[2016] FCCA 3038

Catchwords:
FAMILY LAW – Property – characterisation of interim payments made to the wife – addbacks to asset pool including legal fees of both parties – addback of mortgage payments and living expenses when husband had the benefit of income from the parties joint business – whether advance by husband’s mother in 1991 or 1994 was a loan or contribution and whether it should be added back to the asset pool – adjustment for s.75(2) factors claimed by both parties – application for costs arising from husband’s tardy financial disclosure – application for periodic spousal maintenance by the wife.

Legislation:

Family Law Act 1975, ss.72, 75, 79, 117

Cases cited:

Stanford v Standford [2012] HCA 52
In the Marriage of Hickey [2003] FamCA 395
Vass v Vass [2015] FamCAFC 51

Beklar v Beklar [2013] FAMCA 327
Brown and Brown (2007) FLC 93-316
In the Marriage of I (No.2) (1995) FLC 92-625

Applicant:

MS SHEPHERD

Respondent:

MR SHEPHERD

File Number:

MLC 2099 of 2015

Judgment of:

Judge Williams

Hearing dates:

29 February 2016; 1, 2, 4 March 2016;

1 April 2016; 20 April 2016; 21 June 2016

Date of Last Submission:

17 October 2016

Delivered at:

Melbourne

Delivered on:

25 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr Whitchurch

Solicitors for the Applicant:

Australian Family Lawyers

Counsel for the Respondent:

Mr Taghdir

Solicitors for the Respondent:

Doherty & Colleagues

ORDERS

The Husband pay to the Husband/Wife the sum of $478,000 (“the payment”) on or before 120 days from the date of these orders.
That contemporaneously with the payment:
(a)The Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situate at and known as Property T.
(b)The Husband discharge the mortgage, encumbering the real property and indemnify the wife against all payments and liability pursuant to all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind
That in the event that the whole of the payment has not been made by the date/then the Husband sign all documents and do all things necessary to transfer to the Wife the real property to be held on trust for sale (“the sale”) the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)first to pay all costs, commissions and expenses of (the said trust transfer and) the sale;
(b)secondly to discharge the mortgage and any other encumbrance affecting the real property;
(c)thirdly so much of the payment as is then outstanding together with interest thereon at the rate presented by the Family Law Rules adjusted monthly from the date to the Wife;
(d)fourthly the balance to the Wife;
(e)fifthly the balance then remaining, if any, be paid to the…

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 Shepherd and Shepherd

Details

AGLC: Shepherd and Shepherd [2016] FCCA 3038
Case: [2016] FCCA 3038
Decision Date: 25 November 2016

CaseChat Overview and Summary

This matter concerned orders made by Judge Williams in family law proceedings between a husband and wife. The dispute involved the division of property and the provision of spousal maintenance. The court was required to determine how the parties' various assets and liabilities, including real property, businesses, a motor vehicle, superannuation interests, and debts, should be divided and allocated between them.

The court's reasoning focused on achieving a just and equitable outcome in the division of the matrimonial assets and liabilities. This involved making specific orders for the transfer of property, the discharge of mortgages, and the indemnification of liabilities. The court also addressed the allocation of superannuation interests in accordance with the Family Law Act 1975 (Cth) and associated regulations, including the establishment of splittable payments and the imposition of restraints on the husband's superannuation nominations. Furthermore, the court ordered the husband to pay spousal maintenance to the wife until a specified payment was made in full.

The orders made by the court included the husband paying a sum of $478,000 to the wife, with provisions for the transfer of a property to the husband upon payment, or its sale and distribution of proceeds if payment was not made. The husband was also ordered to transfer his interest in a motor vehicle to the wife and to indemnify the wife against a Centrelink debt. Each party was to retain their respective superannuation interests, with a specific allocation of a base amount from the husband's superannuation to the wife. The husband was restrained from executing death benefit nominations that would render parts of his superannuation interest non-splittable. Finally, the husband was ordered to pay spousal maintenance of $250 per week to the wife until the full payment of $478,000 was made.

Orders

Orders of the court

The Husband pay to the Husband/Wife the sum of $478,000 (“the payment”) on or before 120 days from the date of these orders.

That contemporaneously with the payment:

(a) The Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situate at and known as Property T.

(b) The Husband discharge the mortgage, encumbering the real property and indemnify the wife against all payments and liability pursuant to all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind

That in the event that the whole of the payment has not been made by the date/then the Husband sign all documents and do all things necessary to transfer to the Wife the real property to be held on trust for sale (“the sale”) the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

(a) first to pay all costs, commissions and expenses of (the said trust transfer and) the sale;

(b) secondly to discharge the mortgage and any other encumbrance affecting the real property;

(c) thirdly so much of the payment as is then outstanding together with interest thereon at the rate presented by the Family Law Rules adjusted monthly from the date to the Wife;

(d) fourthly the balance to the Wife;

(e) fifthly the balance then remaining, if any, be paid to the husband.

That pending the payment or completion of the sale:

(a) The Husband have the sole right to occupy the real property and during such right of occupation the Husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

(b) The parties hold their respective interests in the real property upon trust pursuant to these orders; and

In the event the husband fails to comply with order 1 hereof and the real property is sold pursuant to paragraph 2 hereof, then the following orders apply:

(a) The net proceeds of sale shall mean the proceeds of sale of the real property after payment of the liabilities referred to in paragraph 3 (a) & (b) hereof;

(b) In the event the net proceeds of sale are not sufficient to make the payment in full to the wife, then the husband shall have a further 30 days from the date of sale of the real property, to pay the balance of the payment to the wife, together with any accrued interest.

(c) For the purposes of this paragraph, “date of sale” shall be the date on which the settlement of the sale of the real property is effected

Upon receipt of the payment in full subject to paragraph 5 hereof:

(a) The wife do all things required (if any) to transfer to the husband her right title and interest in the business (business omitted) and (business omitted) (“the business”);

(b) The husband be liable for indemnity and keep indemnified the wife in relation to any liability of whatsoever nature of the business.

That the Husband forthwith do all necessary acts and things and sign all necessary documents to transfer to the Wife at the expense of the Wife all his right, title and interest in the Honda motor vehicle.

That the husband be liable for and indemnify the wife against all payments in respect of the Centrelink debt of the parties.

That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Husband).

(b) Insurance policies remain the sole property of the owner named thereon.

(c) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

(d) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

10.

The husband pay to the wife for the maintenance of the wife the sum of $250 per week, until payment in full of the payment referred to in paragraph 1 of these orders, with such payment of spousal maintenance to be made each Friday by direct debit, into the wife’s nominated bank account.

11.

The Court allocate, as required by s.90MT(4) of the Family Law Act 1975 (Cth), a base amount of $12,539.50 of the husband’s interest in (omitted) Super as at the date of these Orders to the wife.

12.

Pursuant to s.90MT(1)(a) of the Family Law Act 1975 (Cth), whenever the Trustee of the fund makes a splittable payment out of the husband’s interest in the fund, the Trustee will:

(a) pay to the wife, or her administrators, executors, beneficiaries, heirs or assigns, to the extent permitted by law, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and

(b) make a corresponding reduction in the entitlement that the husband would have had in the fund but for these Orders.

13.

Paragraph 11 has effect from the operative time and the operative time for the purpose of these Orders is 4 working days after the service of a sealed copy of these Orders on the trustee, with such service to be effected by the husband.

14.

The Trustee of the fund will do all such acts and things, and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law (Superannuation) Regulations 2001 (Cth), the Trustee can calculate the entitlement awarded to the wife in accordance with paragraph 11 of these Orders and pay the entitlement whenever the Trustee makes a splittable payment from the husband’s interest in the fund.

15.

The wife do all things necessary, including but not limited to, exercising her request pursuant to r.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in the wife’s name in the fund with the value of the transferable benefits calculated in accordance with r.7A.11 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).

16.

Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001 (Cth), any payment from the husband’s superannuation interest in the fund made after the Trustee has created a new interest in the wife’s name in the fund are not splittable payments.

17.

Until the happening of any of:

(a) the establishment of a separate account in the name of the wife;

(b) the transfer or rolling over into another superannuation fund of the wife’s entitlements created by paragraph 11 hereof;

(c) the wife satisfying a condition of release and being paid the payment split which was created by paragraph 11 hereof; or

(d) the wife executing a waiver of rights within the meaning of s. 90MZA of the Family Law Act 1975 (Cth) in relation to the payment split created by paragraph 11 hereof;

the husband be, and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any act or thing which would render any part of his interest in the fund a ‘non-splittable payment’ within the meaning of regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 (Cth).

18.

Unless otherwise specified in these Orders, and save for the purposes of enforcing these Orders:

(a) Each party be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders.

(b) Money standing to the credit of the parties in any bank account is to remain the property of the person in whose name the account stands.

(c) Save as provided herein, each party renounces any claims they may have to any superannuation or employment benefits or insurance benefits belonging to or earned by the other.

(d) All insurance policies will become the sole property of the owner named thereon unless specified otherwise in these Orders.

(e) Each party be solely liable for, and indemnify the other, with respect to any liability encumbering any item of property to which that party is entitled pursuant to these Orders or which is in that parties’ name as at the date of these Orders.

(f) Any joint tenancy is hereby severed.

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.