FAMILY COURT OF AUSTRALIA
| SHIMIZU & TANNER | [2011] FamCA 271 |
| FAMILY LAW – PROPERTY – Contribution – Kennon & Kennon adjustment sought – Disparity in relation to which assets comprise the asset pool for division between the husband and the wife – Add backs – Husband’s high post separation earnings – Should they form part of asset pool – Wife asserts donations by husband should be added back to the pool – Husband’s donations regarded as discretionary expenditure – Whether husband has tax liability in Japan on earnings not taxed elsewhere – Section 75(2) factors – Just and equitable considerations – Net assets overall 40% to husband and 60% to wife |
| Child Support (Assessment) Act 1989 (Cth) s117 Evidence Act 1995 (Cth) s140 Family Law Act 1975 (Cth) ss 75(2), 79 Family Law Rules 2004 |
| Cerini & Cerini [1998] FamCA 14 Hickey & Hickey (2003) FLC 93-143 In the marriage of Kowaliw & Kowaliw (1981) FLC 91-092 Kennon & Kennon (1997) FLC 92-757 Kouper & Kouper (No 3) [2009] FamCA 1080 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Omacini & Omacini (2005) FLC 93-218 Wilde & Wilde [2007] FamCA 1044 |
| APPLICANT: | Mr Shimizu |
| RESPONDENT: | Ms Tanner |
| FILE NUMBER: | SYF | 2746 | of | 2006 |
| DATE DELIVERED: | 20 April 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Chief Justice Bryant |
| HEARING DATE: | 16, 17, 18 & 21 September 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd |
| SOLICITOR FOR THE APPLICANT: | Newnhams Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies |
| SOLICITOR FOR THE RESPONDENT: | Enza Ruscica |
Orders
That on or before 10 July 2011 the husband do all necessary acts and things and sign all necessary documents to transfer to the wife all of his right title and interest in the property known and situate at W Street, Sydney Suburb 1, NSW (“the property”), having Folio Identifier …, free of all mortgages, charges and encumbrances including but not limited to the Registered First Mortgage to Perpetual Trustees Australia Limited (“the mortgage”); and
That simultaneously upon, or prior to, compliance by the husband with final Order 1 herein, the parties do all acts and things as shall be necessary to discharge, at the husband’s sole cost, the mortgage(s) registered against the home.
That within twenty-one (21) days of the date of the Orders the husband pay to the wife the sum of $646,669.00.
That within 14 days of compliance by the husband with final orders 1, 2 and 3, the wife transfer to the husband, at the husband’s sole expense, all her right title and interest in Motor vehicle 1 having registration number …
That the wife be declared the sole and beneficial owner to the exclusion of the husband of the following:
(a)The furniture and household contents in the former matrimonial home other than the items referred to in Schedule 1 attached herein.
(b) All superannuation entitlements in her sole name.
That the husband be declared the sole owner to the exclusion of the wife of the following: -
(a)The items…
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- Shimizu & Tanner [2011] FamCA 271
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- [2011] FamCA 271
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CaseChat Overview and Summary
The court was required to determine whether the husband's post-separation earnings and his discretionary expenditure in the form of donations should be included in the asset pool for division. Additionally, the court had to consider the implications of the husband's tax liability in Japan on his earnings that had not been subject to taxation elsewhere, and whether these factors, along with other section 75(2) considerations, warranted an adjustment to the overall division of net assets, which stood at 40% to the husband and 60% to the wife.
Chief Justice Bryant reasoned that the husband's donations were a form of discretionary expenditure and therefore should not be added back to the asset pool. The court also found that the husband's high post-separation earnings were not to be included in the asset pool, nor was his Japanese tax liability to be considered. The court ultimately ordered the transfer of the husband's interest in the W Street property to the wife, along with a significant monetary payment from the husband to the wife. The division of other assets, including motor vehicles and household contents, was also specified, along with orders concerning superannuation entitlements and indemnities between the parties.
Orders
Orders of the court
1.
That on or before 10 July 2011 the husband do all necessary acts and things and sign all necessary documents to transfer to the wife all of his right title and interest in the property known and situate at W Street, Sydney Suburb 1, NSW (“the property”), having Folio Identifier …, free of all mortgages, charges and encumbrances including but not limited to the Registered First Mortgage to Perpetual Trustees Australia Limited (“the mortgage”); and
2.
That simultaneously upon, or prior to, compliance by the husband with final Order 1 herein, the parties do all acts and things as shall be necessary to discharge, at the husband’s sole cost, the mortgage(s) registered against the home.
3.
That within twenty-one (21) days of the date of the Orders the husband pay to the wife the sum of $646,669.00.
4.
That within 14 days of compliance by the husband with final orders 1, 2 and 3, the wife transfer to the husband, at the husband’s sole expense, all her right title and interest in Motor vehicle 1 having registration number …
5.
That the wife be declared the sole and beneficial owner to the exclusion of the husband of the following:
(a) The furniture and household contents in the former matrimonial home other than the items referred to in Schedule 1 attached herein.
(b) All superannuation entitlements in her sole name.
6.
That the husband be declared the sole owner to the exclusion of the wife of the following: -
(a) The items listed in Schedule 1 herein and the wife make the said items available to the husband for collection at his expense on 7 days notice.
(b) Motor vehicle 2 located outside the Commonwealth of Australia.
(c) Motor vehicle 3 located outside the Commonwealth of Australia.
(d) Motor vehicle 4 having registration number …
(e) Motor vehicle 5 having registration number … subject to all and any encumbrances and charges in respect of the motor vehicle and to be at liberty to arrange the collection of the vehicle from the wife at a location nominated by her upon 48 hours notice of his intention to collect the vehicle.
(f) That pursuant to section 90MT(1)(a) of the Family Law Act 1975 the applicant husband as a member of the AMP/Company 1 Superannuation Scheme, having membership number … (“AMP Super Scheme”) and the Trustee of the AMP Super Scheme do all acts and things, sign all documents and give all consents so that whenever a splittable payment becomes available to the applicant husband from his interest in the AMP Super Scheme that the wife is entitled to an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $97,500.00 and there is a corresponding reduction in the entitlement of the husband in the superannuation scheme had these orders not been made. This Order binds the trustee or trustees from time to time of the AMP Super Scheme.
7.
That for the purposes of Order 6 herein that:
(a) The base amount to be allocated to the respondent wife in respect of the AMP Super Scheme is $97,500.00 and
(b) The operative time for this Order is the date of the making of these Orders and this Order is to take effect from the date of the making of these Orders.
8.
In respect of all other property and/or other financial resources not specifically referred to herein that each party be declared the sole and beneficial owner, to the exclusion of the other, of all such property and/or financial resources in their name, control and/or possession as at the date hereof.
9.
That, except as these Orders provide to the contrary:
(a) the husband by this Order hereby indemnifies the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband; and
(b) the wife by this Order hereby indemnifies the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife; and
(c) except as these Orders provide to the contrary, each of the husband and wife releases the other from all debts owing from one to the other.
(d) That in the event that either party refuses or neglects, within a reasonable time of a request to do so, to execute any Deed or instrument necessary to give effect to all or any of the Orders made herein, the Registrar of the Court be appointed, pursuant to section 106A, to execute such Deed or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the said Deed or instrument.
10.
That the Registrar is authorised to execute any necessary instrument upon being satisfied by affidavit that neglect or default, as the case may be, has occurred.
11.
That the parties have leave to apply, upon seven (7) days notice to each other party and the Court, in respect of the implementation and/or clarification of these Orders herein including any application for costs.
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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