SIMS & SIMS - [2020] FamCA 866

FAMILY COURT OF AUSTRALIA

SIMS & SIMS

[2020] FamCA 866

FAMILY LAW – PROPERTY – relationship of around 26 years – where the parties have been separated for at least 13 years – where the proceedings have been stalled by the failure to finalise contested Supreme Court Estate proceedings – where until separation financial and non-financial contributions were equal – where no significant adjustment made in favour of either party is justified to the contribution based entitlements – where the husband contends that it is not just and equitable to make any adjustment to the current legal and equitable interests – where the husband will likely be in a superior asset position arising essentially from his inheritance – property adjustment order made for the husband to make a payment to the wife achieves justice and equity.

Family Law Act 1975 (Cth), ss 75, 79

Stanford & Stanford [2012] HCA 52
C & C [1998] FamCA 143
Hunter & Borman & Anor [2020] FamCAFC 250
Hickey & Hickey (2003) FLC 93-143
Hobson & Hobson [2020] FamCAFC 251

APPLICANT:

Ms Sims

RESPONDENT:

Mr Sims

FILE NUMBER:

BRC

5309

2008

DATE DELIVERED:

23 October 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

21 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms V Martinovic

SOLICITOR FOR THE APPLICANT:

Keyworth Harris & Lowe Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr R Cameron

SOLICITOR FOR THE RESPONDENT:

Maguire Barnes Family

Orders

That the husband shall pay to the wife the sum of $165,000 as follows:
(a) $65,000 on or before 23 November 2020; and
(b) $100,000 on or before 23 October 2022, subject to Order 2.
That:
(a)the husband shall pay the said sum of $100,000 by 23 October 2022 or within 30 days of Lot … on SP … being transferred to the husband, whichever is the earlier; and
(b)if the said payment of $100,000 is not paid by 23 October 2021, then the said sum shall accrue interest at the rate of 5% per annum from 23 October 2021 to the date of actual payment.
That the husband shall provide to the wife a report in writing as to the state of finalisation of the Estate of Mr B Sims (so far as it relates to his securing his inheritance), as events unfold, but no less than over six months until payment of the second instalment of $100,000 is made by the husband to the wife.
That save as necessary to comply with Orders 1 to 3 hereof:
(a)each party be solely entitled to the exclusion of the other to all other property (including motor vehicles, furniture, household contents, jewellery and personal possessions) in the possession of such party as at the date of these Orders; and
(b)each party hereby foregoes any claim they may have to any superannuation benefits or insurance benefits belonging to or earned by the other party; and
(c)each party be solely liable for and indemnify the other against any liability, including personal…

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 SIMS & SIMS

Details

AGLC: SIMS & SIMS [2020] FamCA 866
Case: [2020] FamCA 866
Decision Date: 23 October 2020

CaseChat Overview and Summary

This matter concerned an application by the wife for final property orders in proceedings between the husband and wife. The court was required to determine the appropriate division of property and liabilities between the parties.

The central legal issue before the court was how to achieve a just and equitable distribution of the parties' assets and liabilities, particularly in light of the husband's anticipated inheritance from an estate. The court also had to consider the terms of payment for a significant sum ordered to be paid by the husband to the wife, including provisions for interest and reporting on the progress of the estate.

Baumann J ordered that the husband pay the wife a total sum of $165,000, with a portion payable by a specific date and the remainder payable by a later date, subject to conditions related to the transfer of property and potential interest accrual. The husband was also ordered to provide the wife with reports on the finalisation of his inheritance. The court further ordered that each party retain their existing property, forgo claims to each other's superannuation and insurance benefits, and be solely liable for their respective debts. Provisions were made for the Registrar of the Family Court to execute documents if a party failed to comply with the orders.

Orders

Orders of the court

That the husband shall pay to the wife the sum of $165,000 as follows:

(a) $65,000 on or before 23 November 2020; and

(b) $100,000 on or before 23 October 2022, subject to Order 2.

That:

(a) the husband shall pay the said sum of $100,000 by 23 October 2022 or within 30 days of Lot … on SP … being transferred to the husband, whichever is the earlier; and

(b) if the said payment of $100,000 is not paid by 23 October 2021, then the said sum shall accrue interest at the rate of 5% per annum from 23 October 2021 to the date of actual payment.

That the husband shall provide to the wife a report in writing as to the state of finalisation of the Estate of Mr B Sims (so far as it relates to his securing his inheritance), as events unfold, but no less than over six months until payment of the second instalment of $100,000 is made by the husband to the wife.

That save as necessary to comply with Orders 1 to 3 hereof:

(a) each party be solely entitled to the exclusion of the other to all other property (including motor vehicles, furniture, household contents, jewellery and personal possessions) in the possession of such party as at the date of these Orders; and

(b) each party hereby foregoes any claim they may have to any superannuation benefits or insurance benefits belonging to or earned by the other party; and

(c) each party be solely liable for and indemnify the other against any liability, including personal loans or credit card debts which they may have in their names as at the date of these Orders.

That each party shall sign all documents and do all things necessary to give effect to these Orders but if either party refuses or neglects to comply with any provision of this Order (within fourteen (14) days of a written request to do so) then:

(a) the Registrar of the Family Court of Australia at Brisbane is hereby appointed pursuant to the provisions of s 106A of the Family Law Act 1975 to execute such documents on behalf of such party and to do all things and acts necessary to give effect to these Orders;

(b) the execution of such documentation by the Registrar shall have the same force and validity as if such documentation has been executed by the defaulting party; and

(c) an affidavit by a solicitor acting for the non-defaulting party shall be sufficient proof of the other party’s default.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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