Sheridan & Sheridan - [2021] FamCA 274

FAMILY COURT OF AUSTRALIA
Sheridan & Sheridan [2021] FamCA 274

File number(s): BRC 14575 of 2019

Judgment of: CAREW J

Date of judgment: 6 May 2021

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – Where a registrar made an order requiring the husband to pay spousal maintenance and pay proceeds from the sale of a property to the wife’s solicitors – Where the registrar in determining spousal maintenance double counted some expenses and was mistaken as to the husband’s income – Where the registrar did not determine an oral application – Where the payment of the sale proceeds had been expended meaning the application for review in that respect is otiose – Review allowed in part.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the wife alleges that her day to day living expenses are consistent with the standard of living throughout the marriage – Where the husband challenges the wife’s inability to support herself and alleges that the wife’s income is greater than disclosed – Where the husband has the capacity to pay spousal maintenance – Where the wife is responsible for three children and the wife’s current earning capacity is minimal – Where the wife has an independent source of income – Where the wife’s weekly expenses are adjusted to what is reasonable in the circumstances – Where the husband is to pay spousal maintenance in the sum of $1,410 per week and continue to pay the rates on the former matrimonial home.

FAMILY LAW – PROPERTY – Interim distribution – Whether an order should be made for a lump sum payment to be made to the husband to meet outstanding legal fees and a taxation liability – Whether monies are to be made available to the wife so that the children’s school fees are paid as and when required – Where an interim property payment is made to the husband to meet the taxation liability in part – Where an interim property payment is made to the wife for the purpose of the payment of the children’s school fees.

Legislation:
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Cases cited:
Bevan & Bevan (1995) FLC 92-600

Gabel & Yardley (2008) FLC 93-386

Harris &Harris

Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener)

Phillips & Hansford (No 2) [2015] FamCAFC 138

Kyriakos & Kyriakos (2013) FLC 93-528

Maurice & Barry [2019] FamCA 346

Stanford v Stanford (2012) 247 CLR 108

Stein v Stein (2000) FLC 93-004

Strahan & Strahan (interim property orders) (2011) FLC 93-466

Wilson and Wilson (1989) FLC 92-033

Zschokke and Zschokke (1996) FLC 92-693

Number of paragraphs: 53

Date of hearing: 26 March 2021

Place: Brisbane

Counsel for the Applicant: Mr Kirk QC

Solicitor for the Applicant: Mills Oakley

Counsel for the Respondent: Mr Alexander

Solicitor for the Respondent: Damien Greer Lawyers
ORDERS

BRC14575/2019

BETWEEN:
MS SHERIDAN
Applicant Wife

AND:
MR SHERIDAN

Respondent Husband

ORDER MADE BY:

CAREW J

DATE OF…

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 Sheridan & Sheridan

Details

AGLC: Sheridan & Sheridan [2021] FamCA 274
Case: [2021] FamCA 274
Decision Date: 6 May 2021

CaseChat Overview and Summary

This matter concerned a review of orders made by a registrar concerning spousal maintenance and the interim distribution of property between the applicant wife, Ms Sheridan, and the respondent husband, Mr Sheridan. The wife sought spousal maintenance and the release of funds for legal expenses, while the husband sought to be relieved of an undertaking not to deal with the former matrimonial home to enable him to borrow funds to meet his tax liabilities.

The court was required to determine whether the registrar erred in her assessment of the husband's income and the wife's expenses when calculating spousal maintenance, and whether the registrar failed to determine an oral application made by the wife. Additionally, the court needed to consider the wife's application for the release of sale proceeds, which had already been expended, and the husband's application to borrow against the former matrimonial home. The court also had to determine the appropriate interim property distribution to address the husband's taxation liability and the wife's need to pay the children's school fees.

Carew J found that the registrar had double-counted certain expenses and made a mistake regarding the husband's income when determining spousal maintenance, leading to an overestimation of the amount. The court also noted that an oral application made by the wife had not been determined. Regarding the release of sale proceeds, the court found this aspect of the review to be otiose as the funds had already been expended. The court adjusted the wife's weekly expenses to a reasonable amount and, considering the husband's capacity to pay and the wife's responsibilities and limited earning capacity, ordered the husband to pay periodic spousal maintenance of $1,410 per week, commencing from the date of the registrar's order, and to continue paying the rates on the former matrimonial home.

The court allowed the review of the spousal maintenance order and set aside the registrar's original order for periodic spousal maintenance. The husband was ordered to pay $1,410 per week in spousal maintenance, backdated to 8 December 2020, and to continue paying the council rates on the former matrimonial home. The court also ordered that specified sums be released from controlled monies to pay the anticipated capital gains tax liability and the children's school fees. The review of the order concerning the payment of sale proceeds was dismissed as moot.

Orders

Orders of the court

BRC14575/2019

BETWEEN:

MS SHERIDAN

Applicant Wife

AND:

MR SHERIDAN

Respondent Husband

ORDER MADE BY:

CAREW J

DATE OF ORDER:

6 MAY 2021

THE COURT ORDERS THAT:

1. The review of paragraph 2 of the order made by registrar Hoult on 8 December 2020 be allowed.

2. Paragraph 2 of the order made on 8 December 2020 be set aside.

3. The husband pay periodic spousal maintenance to the wife in the sum of $1,410 per week with such order to date from 8 December 2020 and be paid weekly in advance into an account nominated by the wife. Any adjustments required to be made as a result of payments made by the husband in compliance with the order made 8 December 2020 be considered at trial.

4. The husband continue to pay the council rates levied against the former matrimonial home at Suburb F as and when they fall due.

5. Unless otherwise agreed, the husband and wife authorise Damien Greer Lawyers to release from the controlled monies the following sums:

(a) A sum sufficient to pay the anticipated capital gains tax liability arising from the sale of the property situated at B Street Suburb F (“the CGT liability”) with such sum to be paid to the Australia Taxation Office (“the ATO”);

(b) Sums sufficient to meet each child’s school fees as and when they fall due with such sums to be paid directly to each child’s school.

6. The review of paragraph 3 of the order made by registrar Hoult on 8 December 2020 be dismissed.

IT IS FURTHER ORDERED BY CONSENT

7. That within fourteen (14) days of the wife obtaining inter alia, the following documents, the wife provide the following to the husband:

(a) a written list of Trust assets and an income and expenses statement for the 2017, 2018, 2019 and 2020 financial years for the C Trust No. 2 and the D Trust No. 3 (established by the C Trust No. 3); and

(b) any financial statements for the 2017, 2018, 2019 and 2020 financial years for the C Trust No. 2 and the D Trust No. 3 (established by the C Trust No. 3); and

(c) unredacted copies of the Trust Deed/s and Variations to the Trust Deed/s for the C Trust No. 2 and the D Trust No. 3; and

(d) unredacted copies of all tax returns for the past 5 years including any revised returns for the C Trust No. 2 and the D Trust No. 3 and the Partnership and the 2020 tax returns once prepared.

8. In the event that the wife has not received the documents as set out in paragraph 7 within fourteen (14) days of the date of this Order, the wife:

(a) in her capacity as primary beneficiary of the C Trust No. 2 and the D Trust No. 3 (established by the C Trust No. 3) direct the Trustee of the C Trust No. 2 and the Trustee of the D Trust No. 3 (established by the C Trust No. 3) (the Trustees); and/or

(b) in her capacity as a limited partner of H Company;

(c) direct the Trustees and the Partnership to provide her and the Husband with the above named documents within seven (7) days.

IT IS FURTHER ORDERED

9. All outstanding applications for interim relief be otherwise 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Before turning to consider the relief sought by each party it will be helpful to set out some background to the dispute. BACKGROUND The wife is 50 years of age and the husband is 52 years. Both parties were born in the United States. They commenced cohabitation in 1992, married in 1994 and separated on a final basis on 1 March 2018. There are three children of the marriage aged 11, 13 and 15 years, who live with the wife in the unencumbered former matrimonial home at Suburb F, Queensland. Currently the children spend time with the father each week from after school until 8.30pm on Fridays and from 11.00am to 3.00pm on Sundays. The children all attend private schools and the fees associated with their attendance is $64,688 per annum. The husband and wife relocated to Australia in 2000. Both parties are Australian citizens. At the commencement of cohabitation the wife was a beneficiary of “a limited partnership/irrevocable trusts” established by her family and from which she contends she received no distribution until 2014. Since that time, the wife contends that she has received approximately US$3,000 per month from “H Company”. Currently the wife contends that she receives US$3,622.71 per month. The wife has a degree from G University. The wife has not utilised her degree in employment and had a very limited employment history before relocating to Australia. The wife has not been in employment since relocating to Australia save for two entertainment/commercial roles for which she received a net income of $500. She has been a full time homemaker and parent. The husband is the Chief Executive Officer of K Company and receives a salary of $612,061.[3] Historically the husband has received bonuses from his employer although no bonus was paid for the last financial year and the husband contends there is no reasonable expectation for a bonus to be paid in the current economic climate. [3]Husband’s affidavit filed 08.03.21 (at [57]) cf husband’s financial statement filed 08.03.21. After separation the husband continued to meet various expenses associated with the wife’s occupation of the former matrimonial home with the children, and various living expenses. The husband met those expenses by paying to the wife $14,000 per month until April/May 2020 when he reduced his payments to $3,000 per month, but continued to make some payments in relation to the children’s school fees and health insurance premiums. On 9 December 2019 the husband provided an undertaking not to sell, transfer, encumber or deal with the former matrimonial home in any way without the written consent of the wife. The husband seeks to be relieved of that undertaking so that he can to borrow funds to pay his personal income tax anticipated to be due on 5 June 2021 ($202,230.70 including capital gains tax). The wife’s application for spousal maintenance and release of funds to meet legal expenses, filed on 20 May 2020, was heard on 21 October 2020 before a registrar. Judgment was delivered on 8 December 2020. Pursuant to the order made that day, the husband was required to pay periodic spouse maintenance of $2,548 per week and pay all utilities and outgoings on the former matrimonial home. In addition, one half of the controlled monies (a sum of $281,227.77) was required to be paid to the wife’s lawyers with the categorisation of that payment to be determined at trial. As already noted, the lump sum has been paid and fully expended as follows:(a)Solicitor’s fees of $135,598.20(b)Taxation liability of $91,986.95(c)School fees of $14,985.50(d)Senior Counsel’s fees of $9,680(e)Queen’s Counsel’s fees of $23,397(f)Unknown $8,250Total: $283,897.65

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.

File number(s):	BRC 14575 of 2019
Judgment of:	CAREW J
Date of judgment:	6 May 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – Where a registrar made an order requiring the husband to pay spousal maintenance and pay proceeds from the sale of a property to the wife’s solicitors – Where the registrar in determining spousal maintenance double counted some expenses and was mistaken as to the husband’s income – Where the registrar did not determine an oral application – Where the payment of the sale proceeds had been expended meaning the application for review in that respect is otiose – Review allowed in part. FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the wife alleges that her day to day living expenses are consistent with the standard of living throughout the marriage – Where the husband challenges the wife’s inability to support herself and alleges that the wife’s income is greater than disclosed – Where the husband has the capacity to pay spousal maintenance – Where the wife is responsible for three children and the wife’s current earning capacity is minimal – Where the wife has an independent source of income – Where the wife’s weekly expenses are adjusted to what is reasonable in the circumstances – Where the husband is to pay spousal maintenance in the sum of $1,410 per week and continue to pay the rates on the former matrimonial home. FAMILY LAW – PROPERTY – Interim distribution – Whether an order should be made for a lump sum payment to be made to the husband to meet outstanding legal fees and a taxation liability – Whether monies are to be made available to the wife so that the children’s school fees are paid as and when required – Where an interim property payment is made to the husband to meet the taxation liability in part – Where an interim property payment is made to the wife for the purpose of the payment of the children’s school fees.
Legislation:	Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth)
Cases cited:	Bevan & Bevan (1995) FLC 92-600 Gabel & Yardley (2008) FLC 93-386 Harris &Harris Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) Phillips & Hansford (No 2) [2015] FamCAFC 138 Kyriakos & Kyriakos (2013) FLC 93-528 Maurice & Barry [2019] FamCA 346 Stanford v Stanford (2012) 247 CLR 108 Stein v Stein (2000) FLC 93-004 Strahan & Strahan (interim property orders) (2011) FLC 93-466 Wilson and Wilson (1989) FLC 92-033 Zschokke and Zschokke (1996) FLC 92-693
Number of paragraphs:	53
Date of hearing:	26 March 2021
Place:	Brisbane
Counsel for the Applicant:	Mr Kirk QC
Solicitor for the Applicant:	Mills Oakley
Counsel for the Respondent:	Mr Alexander
Solicitor for the Respondent:	Damien Greer Lawyers