Sigley & Cullen (No 3) - [2015] FamCA 825

FAMILY COURT OF AUSTRALIA

SIGLEY & CULLEN (NO 3)

[2015] FamCA 825

FAMILY LAW – PROPERTY – Heads of agreement reached at court door and proceeding adjourned to implement settlement – Wife withdraws from agreement and proceeds to trial thereafter unnecessarily – Use to which that agreement can be put – Limitation of cross-examination as to credit when there is no evidence of hidden assets or anything justifying such a finding.
FAMILY LAW – SPOUSAL MAINTENANCE – Determination as to appropriate and proper level where wife has a significant resource in an unencumbered home.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Sigley

RESPONDENT:

Ms Cullen

FILE NUMBER:

MLC

11196

2013

DATE DELIVERED:

5 October 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

22, 23 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Skerlj

SOLICITOR FOR THE APPLICANT:

Coulter Roache

THE RESPONDENT:

In Person

Orders

The Husband assign to the Wife and henceforth relinquish any of his interest in the property at D Street, Suburb E and as soon as practicable, do all things necessary to remove all encumbrances therefrom;
The Wife assign to the Husband and henceforth relinquish any of her interest in the property at D Street, Suburb E and the Husband indemnify the Wife and obtain her release from any liability secured by the mortgage against that property together with all rates, taxes and other liabilities associated with it.
The Husband do all things necessary to cause the company Sigley Pty Ltd to transfer to the Wife the registration of the German motor vehicle presently in her possession.
The Wife forthwith do all things and execute all documents, instruments and writings necessary to assign to the Husband or his nominee all her interest in and to the property of:
(a) Sigley Pty Ltd (“the company”); and
(b) The Sigley Family Trust (“the trust”).
The Husband forthwith assume responsibility for and indemnify the Wife against all liability which may be incurred by her as a result of her having an interest in either the company or trust.
The Husband forthwith do all things necessary to refinance the CBA Joint Viridian Line of Credit “household” account so as to remove the Wife’s name therefrom.
In accordance with paragraph 90MT(1)(b) of the FLA:-
(a)       The Husband as non-member spouse is entitled to be paid a specified percentage out of the Wife’s interest in the Sigley Superannuation Fund;
(b)       The Wife’s entitlement in the fund is correspondingly reduced by force and operation of this order; and
(c)       The percentage specified for the purpose of this order is 100 per cent.
The Trustee of the fund do all such acts and things and sign all documents as may be necessary to: -
(a) Calculate the entitlements awarded to the Husband in paragraph (7); and
(b) Pay the entitlement whenever the Trustee makes a splittable payment from the Wife’s interest in the fund.
Paragraphs (7) and (8) of these orders have effect forthwith..
Both parties do all…

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 Sigley & Cullen (No 3)

Details

AGLC: Sigley & Cullen (No 3) [2015] FamCA 825
Case: [2015] FamCA 825
Decision Date: 5 October 2015

CaseChat Overview and Summary

In the matter of Sigley & Cullen (No 3), Cronin J determined the property settlement and spousal maintenance obligations between the Husband and the Wife. The dispute concerned the division of various assets, including real estate, a motor vehicle, company and trust interests, a superannuation fund, and personal property, as well as the provision of spousal maintenance.

The court was required to determine how the parties' various assets and liabilities should be divided and how spousal maintenance should be provided. Specifically, the court had to consider the ownership of a property at D Street, Suburb E, the interests in Sigley Pty Ltd and The Sigley Family Trust, a German motor vehicle, a campervan, ski club membership, and a superannuation fund. Additionally, the court was tasked with determining the extent of the Husband's mother's ownership of certain paintings and the appropriate level and duration of spousal maintenance for the Wife.

Cronin J applied principles of property division under the *Family Law Act 1975* (Cth) to achieve a final resolution of the parties' financial affairs. The court ordered the assignment of interests in the D Street property, with the Husband indemnifying the Wife against liabilities associated with it. The Husband was also directed to arrange for the transfer of a motor vehicle and to refinance a joint line of credit to remove the Wife's name. Significant orders were made regarding the Sigley Superannuation Fund, with the Husband receiving 100% of the Wife's interest therein, and the Wife being ordered to retire from the fund. The court declared the Husband's mother the sole owner of seven paintings, with the Husband indemnifying the Wife against any claims by his mother. Spousal maintenance was ordered to be paid by the Husband to the Wife at a specified weekly rate until 31 December 2018, along with the continuation of private health cover. The Wife's application for restraining orders was dismissed.

Orders

Orders of the court

The Husband assign to the Wife and henceforth relinquish any of his interest in the property at D Street, Suburb E and as soon as practicable, do all things necessary to remove all encumbrances therefrom;

The Wife assign to the Husband and henceforth relinquish any of her interest in the property at D Street, Suburb E and the Husband indemnify the Wife and obtain her release from any liability secured by the mortgage against that property together with all rates, taxes and other liabilities associated with it.

The Husband do all things necessary to cause the company Sigley Pty Ltd to transfer to the Wife the registration of the German motor vehicle presently in her possession.

The Wife forthwith do all things and execute all documents, instruments and writings necessary to assign to the Husband or his nominee all her interest in and to the property of:

(a) Sigley Pty Ltd (“the company”); and

(b) The Sigley Family Trust (“the trust”).

The Husband forthwith assume responsibility for and indemnify the Wife against all liability which may be incurred by her as a result of her having an interest in either the company or trust.

The Husband forthwith do all things necessary to refinance the CBA Joint Viridian Line of Credit “household” account so as to remove the Wife’s name therefrom.

In accordance with paragraph 90MT(1)(b) of the FLA:-

(a) The Husband as non-member spouse is entitled to be paid a specified percentage out of the Wife’s interest in the Sigley Superannuation Fund;

(b) The Wife’s entitlement in the fund is correspondingly reduced by force and operation of this order; and

The Trustee of the fund do all such acts and things and sign all documents as may be necessary to: -

(a) Calculate the entitlements awarded to the Husband in paragraph (7); and

(b) Pay the entitlement whenever the Trustee makes a splittable payment from the Wife’s interest in the fund.

Paragraphs (7) and (8) of these orders have effect forthwith..

10.

Both parties do all such things necessary to give effect to paragraphs (7) and (11).

11.

The Wife do all such acts and things and sign all such documents, including but not limited to the signing of the Trustee minutes, rollover requests and related documents as may be necessary to retire from the fund.

12.

The Husband pay to the Wife:

(a) By 4.00pm on 13 November 2015 the sum of $10,000.00; and

(b) By 4.00pm on 13 January 2016 a further payment of $20,000.

13.

That on 24 October 2015 at 10.00am, the wife hand to the agents of the husband at his expense, the two kayaks presently at D Street, Suburb E (“the home”) together with his father’s cricket bat and any other items of personal property that he otherwise seeks through his agent at that time.

14.

The Wife forthwith assign to the Husband (and to the extent necessary, sign any document so required) the whole of her interest in the campervan and ski club membership.

15.

Pursuant to S.78 of the Family Law Act 1975 the mother of the Husband is declared to be the sole owner of the seven paintings presently located in the home:

(a) Two gum tree paintings (located in upstairs bedroom);

(b) Painting of town (located in dining room);

(d) Small water colour of two people at the Bay (located in the hallway); and

(e) Still life of wattle (located in sitting room next to piano),

(f) Bridge

16.

That at the time the husband’s agent collects the items referred to in paragraph 13 hereof, the wife make available for collection (again at the husband’s expense) the paintings referred to and the husband forthwith indemnify the wife in relation to any claim by his mother in respect of those paintings.

17.

That the Wife’s application for restraining orders is dismissed.

18.

Except as otherwise provided in these orders, each party retain as their own property absolutely all personal property and effects (including other superannuation entitlements) presently in their respective possession or control free from any further claim by the other and each party be solely liable for and indemnify the other absolutely against all payments and liability whatsoever in respect to any credit card or personal loan in their sole name.

19.

By way of spousal maintenance for the wife:

(a) The Husband pay to the Wife the sum of $800.00 per week until 31 December 2018; and

(b) The Husband maintain private health cover for the Wife at the current rate of cover until 31 December 2018.

20.

That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 30 October 2015 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 13 November 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

IT IS CERTIFIED:

21.

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend on behalf of the applicant.

22.

That all applications save as to issues of costs are otherwise dismissed.

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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