Sherwin and Sherwin (No.2) - [2010] FMCAfam 77

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHERWIN & SHERWIN (No.2)

[2010] FMCAfam 77

FAMILY LAW – Property – parties’ interests in group of companies – parties’ contributions – adjustments for section 75(2) and related factors – current value of the husband’s superannuation – classification of redundancy payments – family contributions more arduous because of domestic violence – just and equitable distribution.

Family Law Act 1975, ss.75(2), 77A, 79, 79(1), 79(2), 79(4)

In the Marriage of Browne and Green (1999) 25 Fam LR 482; (1999) FLC 92-873
In the Marriage ofHickey (2003) 30 Fam LR 355; (2003) FLC 93-143
Kennon v Kennon (1997) 22 Fam LR 1; (1997) FLC 92-757
In the Marriage of Kowaliw (1981) FLC 91-092

Applicant:

MS SHERWIN

Respondent:

MR SHERWIN

File Number:

MLC 1365 of 2008

Judgment of:

Monahan FM

Hearing dates:

16-18 June, 23-24 July 2009

Date of Last Submission:

24 July 2009

Delivered at:

Melbourne

Delivered on:

15 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr Glover

Solicitors for the Applicant:

David Stagg Tonkin & Co

Counsel for the Respondent:

Mr J. Williams

Solicitors for the Respondent:

Slater & Gordon Pty Ltd

ORDERS

Within seven (7) days of the date of these Orders the wife authorise her solicitors, David Stagg Tonkin & Co, to pay the following amounts from the moneys held by them on trust for the parties from the proceeds of the sale of the former matrimonial home:
(a)to the husband the sum of $20,713 (plus 32.5% of any interest accumulated from 1 June 2009 until payment); and
(b)
to the wife the balance then remaining in the said trust account (i.e. $112,815 plus 67.5% of any interest accumulated from

1 June 2009 until payment).
Subject to the agreement of the parties to the contrary, the wife retain for her sole use and benefit the following:
(a)the Commodore vehicle;
(b)the Verticon shares;
(c)the $50,000 distributed to her pursuant to the Orders of 2 April 2008;
(d)the furniture and contents currently in her possession; and
(e)her superannuation policies
and the husband shall relinquish all right, title and/or interest that he may have in respect to any of the above and will forthwith sign any documents reasonably requested by the wife to effect this outcome.
Subject to the agreement of the parties to the contrary, the husband retain for his sole use and benefit the following:
(a)the 4WD Toyota HiLux vehicle;
(b)the camper trailer;
(c)the proceeds of sale of the XT 600 Yamaha motor bike;
(d)the $50,000 distributed to him pursuant to the Orders of 2 April 2008;
(e)the furniture and contents currently in his possession; and
(f)save as otherwise provided for in these Orders his superannuation entitlements
and the wife shall relinquish all right, title and/or interest that she may have in respect to any of the above and will forthwith sign any documents reasonably requested by the husband to effect this outcome.
The husband indemnify the wife and keep her indemnified in respect of any claims including taxation liabilities arising from 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 Sherwin and Sherwin (No.2)

Details

AGLC: Sherwin and Sherwin (No.2) [2010] FMCAfam 77
Case: [2010] FMCAfam 77
Decision Date: 15 February 2010

CaseChat Overview and Summary

In the matter of Sherwin and Sherwin (No.2), the court dealt with the division of assets and liabilities between the husband and wife. The case involved disputes over the distribution of funds held by the wife's solicitors, ownership of various assets including vehicles, shares, and personal effects, and the indemnification of each party regarding liabilities and guarantees. The court was tasked with resolving the division of assets, determining the rights and obligations of the parties concerning specific properties, and addressing the indemnification of the wife for liabilities arising from the husband's business activities and vice versa. Additionally, the court had to consider superannuation splitting orders and the dissolution of any trusts established by the parties.

The legal issues before the court included the equitable division of the trust funds, the allocation of specific assets, the indemnification of the parties for certain liabilities, and the enforcement of superannuation splitting orders. The court needed to balance the principles of fairness and equity in dividing the assets and liabilities, considering the contributions and needs of each party. The court also had to ensure that the orders complied with the relevant sections of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

The court reasoned that the distribution of the trust funds should reflect the agreed percentages, with the husband receiving 32.5% and the wife receiving 67.5%. The court outlined the specific assets each party was to retain and directed the parties to execute necessary documents to relinquish any claims to the specified assets. The indemnification orders were crafted to ensure that each party was protected from liabilities arising from the other's actions during the marriage. The court also addressed the superannuation splitting orders, ensuring compliance with statutory requirements and specifying the notice and communication obligations of the husband regarding his superannuation fund. Finally, the court dismissed all other applications not specified in the orders.

The court made detailed orders regarding the division of assets, indemnification, superannuation splitting, and the dissolution of trusts. The wife was to authorise her solicitors to distribute the trust funds in the specified percentages. The court allocated specific assets to each party and directed the relinquishment of claims to those assets. Indemnification orders were made to protect each party from liabilities arising from the other's actions. The court also enforced superannuation splitting orders, ensuring the wife received her entitlement from the husband's superannuation fund. The court dismissed all other applications not addressed in the orders.

Orders

Orders of the court

Within seven (7) days of the date of these Orders the wife authorise her solicitors, David Stagg Tonkin & Co, to pay the following amounts from the moneys held by them on trust for the parties from the proceeds of the sale of the former matrimonial home:

(a) to the husband the sum of $20,713 (plus 32.5% of any interest accumulated from 1 June 2009 until payment); and

(b)

to the wife the balance then remaining in the said trust account (i.e. $112,815 plus 67.5% of any interest accumulated from

1 June 2009 until payment).

Subject to the agreement of the parties to the contrary, the wife retain for her sole use and benefit the following:

(a) the Commodore vehicle;

(b) the Verticon shares;

(d) the furniture and contents currently in her possession; and

(e) her superannuation policies

and the husband shall relinquish all right, title and/or interest that he may have in respect to any of the above and will forthwith sign any documents reasonably requested by the wife to effect this outcome.

Subject to the agreement of the parties to the contrary, the husband retain for his sole use and benefit the following:

(a) the 4WD Toyota HiLux vehicle;

(b) the camper trailer;

(d) the $50,000 distributed to him pursuant to the Orders of 2 April 2008;

(e) the furniture and contents currently in his possession; and

(f) save as otherwise provided for in these Orders his superannuation entitlements

and the wife shall relinquish all right, title and/or interest that she may have in respect to any of the above and will forthwith sign any documents reasonably requested by the husband to effect this outcome.

The husband indemnify the wife and keep her indemnified in respect of any claims including taxation liabilities arising from the operations of and his directorship of [L] Pty Ltd, [A] Pty Ltd, [R] Pty Ltd and [C] Pty Ltd.

The husband further indemnify the wife and keep her indemnified in respect to any personal guarantees executed by him in respect of the assets of the following entities:

(a) [C] Pty Ltd;

(b) [H] Pty Ltd;

and any other associated entities that may have given rise to the execution of such guarantees during the course of the marriage.

The wife indemnify the husband and keep him indemnified in respect of all acts and omissions of the wife in her capacity as shareholder or director of [H] Pty Ltd, including any third party liabilities to the Australian Taxation Office.

The parties at their joint expense do all such acts and things and sign all documents necessary to dissolve and discontinue any trusts established by them and in the event that there are any assets associated therewith arising from such process then the same be divided in the percentages 67.5% to the wife and 32.5% to the husband.

The parties do all acts and things and sign all necessary documents to give effect to the superannuation splitting orders contained herein.

Orders 8 to 15 (inclusive) herein are binding on the Trustee of the [C] Superannuation Fund (“the Fund”).

10.

The base amount of $16,709.00 be allocated to the wife out of the husband’s interest in the Fund.

11.

Pursuant to section 90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the interest in the Fund, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount in Order 10 herein and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

12.

Order 11 herein has effect from the operative time.

13.

The operative time for the purposes of Orders 11 and 12 herein is four (4) business days after the date of service of a sealed copy of these Orders upon the Trustee of the Fund.

14.

That until such time as the Superannuation split to the wife pursuant to these Orders can be rolled over into a separate account to the wife:

(a) The husband shall provide to the wife no less than twenty-eight (28) days notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the Fund;

(b) The husband shall direct and authorise the Trustee of the Fund to communicate with the wife and/or any person authorised by the wife in writing:

(i) to answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the Fund; and

(ii) to provide to the wife and/or her authorised representative a copy of any notice of any application or request by the wife which seeks release of entitlements in the Fund in so far as that release may effect the entitlement in the Fund pursuant to these Orders; and

(c) The husband by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to these Orders.

15.

In the event that the Superannuation split to the wife pursuant to these Orders can be rolled over into a separate account to the wife each of the parties hereto shall each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

16.

The husband is to serve a sealed copy of these Orders on the Trustee of the Fund within 7 days of the date of these Orders.

17.

The wife shall forthwith waive any entitlement she may have in relation to holiday leave, long service leave or unpaid superannuation entitlement as may be due and owing as a result of her employment by any of the entities specified in Orders 4 and/or 5 herein.

18.

That unless specified in these Orders and save for the purpose 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 other property (including choses-in-action) in the possession of such party as at the date of these Orders, including any monies in their sole name in any bank or financial institution as well as any furnishings and household or personal effects;

(b) if applicable, any monies to the credit of the parties in any joint bank or financial institution account are to be divided between the parties in the percentages of 67.5% to the wife and 32.5% to the husband and the account closed within 14 days;

(d) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which the parties are entitled pursuant to these Orders; and

(e) each party indemnify the other with respect to any debts and liabilities standing in that party’s sole name.

19.

All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

The letter from [C] to the solicitors for the husband dated

17 December 2008 confirms that the Trustee has no objection to the making of superannuation splitting orders as proposed in the letter from the husband’s solicitors to [C] dated 17 December 2008.

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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