Snider and Snider - [2017] FCCA 1879

FEDERAL CIRCUIT COURT OF AUSTRALIA

SNIDER & SNIDER

[2017] FCCA 1879

Catchwords:
FAMILY LAW – Property – consideration of contributions and s.75(2) factors – income discrepancy after long marriage – 15% adjustment to the wife – consideration of entitlement to spousal maintenance.

Legislation:

Family Law Act 1975 (Cth) ss.75(2), 79, (1), (2), (4) (d)-(g)

Cases cited:

Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FLC93-143

Stanford v Stanford (2012) 247 CLR 108

Fielding & Nichol [2014] FCWA 77
Chorn v Hopkins (2004) FLC 93-204
Clauson v Clauson (1995) FLC 92-595

Applicant:

MS SNIDER

Respondent:

MR SNIDER

File Number:

HBC 873 of 2014

Judgment of:

Judge McGuire

Hearing dates:

3, 4 & 5 July 2017

Date of Last Submission:

5 July 2017

Delivered at:

Launceston

Delivered on:

22 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr M. Foster

Solicitors for the Applicant:

Murdoch Clarke

Counsel for the Respondent:

Mr M. Verney

Solicitors for the Respondent:

Matthew Verney Lawyers

ORDERS

That the husband forthwith authorise the (omitted) Family Trust (“the trust”) and/or the company Company A (“the Company”) to pay to the wife all arrears due and owing under Order No. 2 of the Consent Orders of 4 September 2015.
That unless agreed in writing, within fourteen (14) days of the date of these Orders the parties jointly obtain a market valuation price of the (omitted) motor vehicle in the possession of the husband but being the property of Company A and the husband retain that vehicle at value for the purposes of these orders and that the husband retain the vehicle and any attached liability personally from the date of these orders and for these purposes the parties authorise the trust or the company to effect the transfer to the husband as of the date of these orders.
That the tangible assets of the parties pursuant to the findings in the reasons herein be divided as to sixty-five (65) percent to the wife and thirty-five (35) percent to the husband and also pursuant to the consent orders for the sale of assets made 30 May 2017 and for these purposes each party retain to the exclusion of the other all items of personalty, motor vehicles, balances of personal bank accounts and like investments currently in the possession, control or to the benefit of that party.
That each party be solely responsible for and indemnify the other in respect of any and all liabilities incurred by that party since separation in either joint names or in that party’s name alone.
That each party be solely responsible for and indemnify the other in respect of any liability attaching to any asset retained by that party pursuant to these orders.
That the corpus of the parties’ self-managed superannuation fund known as “Snider Superannuation fund” be forthwith divided equally between the parties on terms as agreed and that the parties or either of them have liberty to apply as to the implementation of this order.
That the interim orders of 4 September…

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 Snider and Snider

Details

AGLC: Snider and Snider [2017] FCCA 1879
Case: [2017] FCCA 1879
Decision Date: 22 August 2017

CaseChat Overview and Summary

The case of Snider and Snider involved a dispute between a husband and wife concerning the division of their assets and liabilities. The matter came before Judge McGuire.

The court was required to determine the appropriate division of tangible assets between the parties, the allocation of liabilities, and the division of their superannuation fund. Additionally, the court considered the wife's application for spousal maintenance.

Judge McGuire ordered that the husband forthwith authorise the Family Trust and/or Company A to pay the wife all arrears due under previous consent orders. The husband was to retain a motor vehicle owned by Company A at its market valuation, with the transfer to occur immediately. Tangible assets were to be divided 65% to the wife and 35% to the husband, with each party retaining personalty, motor vehicles, and bank accounts in their possession. Each party was to be solely responsible for and indemnify the other in respect of liabilities incurred since separation and liabilities attaching to assets retained. The corpus of the Snider Superannuation fund was to be divided equally. Interim orders from 2015 were to remain in effect until the sale of the business and real estate, with liberty to apply for variation or discharge. The wife's application for spousal maintenance was dismissed.

Orders

Orders of the court

That the husband forthwith authorise the (omitted) Family Trust (“the trust”) and/or the company Company A (“the Company”) to pay to the wife all arrears due and owing under Order No. 2 of the Consent Orders of 4 September 2015.

That unless agreed in writing, within fourteen (14) days of the date of these Orders the parties jointly obtain a market valuation price of the (omitted) motor vehicle in the possession of the husband but being the property of Company A and the husband retain that vehicle at value for the purposes of these orders and that the husband retain the vehicle and any attached liability personally from the date of these orders and for these purposes the parties authorise the trust or the company to effect the transfer to the husband as of the date of these orders.

That the tangible assets of the parties pursuant to the findings in the reasons herein be divided as to sixty-five (65) percent to the wife and thirty-five (35) percent to the husband and also pursuant to the consent orders for the sale of assets made 30 May 2017 and for these purposes each party retain to the exclusion of the other all items of personalty, motor vehicles, balances of personal bank accounts and like investments currently in the possession, control or to the benefit of that party.

That each party be solely responsible for and indemnify the other in respect of any and all liabilities incurred by that party since separation in either joint names or in that party’s name alone.

That each party be solely responsible for and indemnify the other in respect of any liability attaching to any asset retained by that party pursuant to these orders.

That the corpus of the parties’ self-managed superannuation fund known as “Snider Superannuation fund” be forthwith divided equally between the parties on terms as agreed and that the parties or either of them have liberty to apply as to the implementation of this order.

That the interim orders of 4 September 2015 remain in full force and effect until the sale of the business and real estate pursuant to the orders of 30 May 2017 and hence until the execution of Order No. 3 herein, in respect of orders No. 2, 3 (b-g), 7, 8, 14 and 16 and in all other respects the orders of 4 September 2015 be dismissed provided that the parties or either of them have liberty to apply in respect of the variation or discharge of this order.

That there be liberty to the parties or either of them to apply in respect of the sale of real property or the business pursuant to the consent orders of 30 May 2017.

That the wife’s application for spousal maintenance be 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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