Simon and Simon - [2017] FCCA 2338

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMON & SIMON

[2017] FCCA 2338

Catchwords:
FAMILY LAW – Property – add backs – dispute regarding asset pool – no matters of principle.

Legislation:

Family Law Act 1975, ss.75(2), 79

Cases cited:

In the Marriage of Biltoft [1995] FamCA 45

In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Kowaliw (1981) 7 Fam LN N13
In the Marriage of Petersens ( 1981) 7 Fam LR 402
In the Marriage of Reynolds (1984) 10 Fam LR 388
Omacini & Omacini (2005) 33 Fam LR 134
Townsend & Townsend (1994) 18 Fam LR 505
Vass and Vass [2015] FamCAFC 51
Watson v Ling [2013] FamCA 57
Wilde & Wilde [2007] FamCA 1044

Applicant:

MS SIMON

Respondent:

MR SIMON

File Number:

MLC 8815 of 2016

Judgment of:

Judge McNab

Hearing dates:

22-23 June 2017

Date of Last Submission:

23 June 2017

Delivered at:

Melbourne

Delivered on:

27 September 2017

REPRESENTATION

Counsel for the Applicant:

Mr J. Williams

Solicitors for the Applicant:

Aberdeen Lawyers

Counsel for the Respondent:

Mr Weil

Solicitors for the Respondent:

Northside Lawyers

ORDERS

That within 60 days (the due date):
(a)The Husband vacate the matrimonial home, and remove any possessions, including all workshop possessions, plant and equipment and debris, from the home, at his expense.
(b)The parties sign all documents and do all things for the Husband to transfer his right title and interest in the matrimonial home to the Wife.
(c)That contemporaneously with the transfer, the Wife shall discharge the joint mortgage and refinance the mortgage into her sole name and pay to the Husband an amount equal to 25% of the asset pool, being $107,632, inclusive of all assets and liabilities that each party is retaining, including all motor vehicles and chattels.
(d)If the Wife is unable to make the payment, or discharge the mortgage by the due date, the Husband be given 60 days from the due date to discharge the mortgage and pay the Wife the sum of 75% of the asset pool, being $322,897, inclusive of all assets and liabilities that each party is retaining, including all motor vehicles and chattels.
That in the event neither party can comply with the terms in paragraph 1, the house be listed for sale at a price recommended by an appointed real estate agent (as agreed) and the proceeds of sale shall be distributed as follows:
(a)Firstly to pay all costs and commissions;
(b)Secondly to discharge the existing joint mortgage;
(c)Thirdly to pay out the outstanding loan to the Wife’s parents of $51,500;
(d)Fourthly to pay out the credit card debt incurred during the relationship, plus interest on that debt;
(e)Fifthly, that the balance be distributed so that the Wife receives 75% of the entire asset pool (inclusive of all (non-super) assets and liabilities retained) and the Husband receives 25% of the asset pool (inclusive of all (non-super) assets and liabilities retained).
Subject to Trustee approval there be a superannuation split with the result…

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 Simon and Simon

Details

AGLC: Simon and Simon [2017] FCCA 2338
Case: [2017] FCCA 2338
Decision Date: 27 September 2017

CaseChat Overview and Summary

In the matter of Simon and Simon, heard by Judge McNab, the dispute concerned the division of assets and liabilities following the breakdown of a marriage. The orders made by the court addressed the disposition of the matrimonial home, financial settlements between the parties, and the distribution of superannuation interests.

The court was required to determine the terms of the property settlement, including the transfer of the matrimonial home, the payment of a lump sum to the husband, and the discharge of existing mortgages and debts. Further issues included the distribution of proceeds if the home was to be sold, and the division of superannuation interests. The court also considered the mechanism for enforcing compliance with its orders, including the potential for a Registrar to execute documents.

Judge McNab ordered that within 60 days, the husband was to vacate the matrimonial home and transfer his interest to the wife, who was to refinance the mortgage and pay the husband 25% of the asset pool. Alternatively, if the wife could not comply, the husband had 60 days to discharge the mortgage and pay the wife 75% of the asset pool. If neither party could comply, the home was to be listed for sale, with proceeds applied first to sale costs, then the joint mortgage, a loan to the wife's parents, credit card debt, and finally, the balance distributed with the wife receiving 75% and the husband 25%. The court also ordered a 50% superannuation split, subject to trustee approval, and stipulated that a Registrar could execute documents if a party refused to comply. The matter was adjourned for mention, with a note that orders could be made in chambers if evidence of procedural fairness to superannuation trustees was filed.

Orders

Orders of the court

That within 60 days (the due date):

(a) The Husband vacate the matrimonial home, and remove any possessions, including all workshop possessions, plant and equipment and debris, from the home, at his expense.

(b) The parties sign all documents and do all things for the Husband to transfer his right title and interest in the matrimonial home to the Wife.

(c) That contemporaneously with the transfer, the Wife shall discharge the joint mortgage and refinance the mortgage into her sole name and pay to the Husband an amount equal to 25% of the asset pool, being $107,632, inclusive of all assets and liabilities that each party is retaining, including all motor vehicles and chattels.

(d) If the Wife is unable to make the payment, or discharge the mortgage by the due date, the Husband be given 60 days from the due date to discharge the mortgage and pay the Wife the sum of 75% of the asset pool, being $322,897, inclusive of all assets and liabilities that each party is retaining, including all motor vehicles and chattels.

That in the event neither party can comply with the terms in paragraph 1, the house be listed for sale at a price recommended by an appointed real estate agent (as agreed) and the proceeds of sale shall be distributed as follows:

(a) Firstly to pay all costs and commissions;

(b) Secondly to discharge the existing joint mortgage;

(d) Fourthly to pay out the credit card debt incurred during the relationship, plus interest on that debt;

(e) Fifthly, that the balance be distributed so that the Wife receives 75% of the entire asset pool (inclusive of all (non-super) assets and liabilities retained) and the Husband receives 25% of the asset pool (inclusive of all (non-super) assets and liabilities retained).

Subject to Trustee approval there be a superannuation split with the result that each party receives 50% of the parties' combined superannuation interests.

In the event either party refuses to sign any documents to effect compliance of their obligations under these orders then any such document to be signed by a Registrar of this Court pursuant to 106A of the Family Law Act 1975 in lieu of the party who has failed to sign pursuant to these orders.

The parties fie brief submissions in relation to costs (limited to two A4 pages) with the wife to file any submissions by 4pm 4 October 2017 and the husband to file any submissions by 4pm 11 October 2017.

The matter be adjourned to Federal Circuit Court of Australia on

31 October 2017 at 9.30am

for Mention.

AND THE COURT NOTES THAT:

The purpose of the adjournment is to allow procedural fairness to be accorded to the trustees of the relevant superannuation fund. In the event that evidence of procedural fairness is filed with Chambers prior to the adjourned date, orders will be made in chambers and the adjourned date vacated.

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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