STEFANOVSKI & STEFANOVSKI - [2012] FamCA 284

FAMILY COURT OF AUSTRALIA

STEFANOVSKI & STEFANOVSKI

[2012] FamCA 284

FAMILY LAW - PROPERTY – Application under s 79 for property orders and lump sum spousal maintenance – Where claim by Husband of imbalance in initial capital contributed – Where Husband’s evidence uncorroborated – Relevance of use made of initial capital – Where business lease – Where no asset reflected in small pool

FAMILY LAW - PROPERTY – Where claims for substantial “add backs” of notional property not pursued – Where lack of disclosure and evidence by the Husband

FAMILY LAW - PROPERTY – Where potential claim by Husband as co-surety of business debt – Where chose in action incapable of being valued – Where s 75(2)(o) factor is the serious illness and incapacity of the Wife – Where assessment of contributions – Where significant contribution by the Husband’s parents

FAMILY LAW – SPOUSAL MAINTENANCE – Section 75(2) factors – Where adjustment to the Wife for spousal maintenance – Where periodic maintenance determined to be more appropriate than lump sum maintenance

Family Law Act 1975 (Cth)
Family Law (Superannuation) Regulations 2001 (Cth)
Limitation Act 1969 (NSW)

AE Goodwin Ltd v AG HealingLtd (1979) 7 ACLR 481
AGC (Advances) Ltdv West (1984) 5 NSWLR 590
Albany & Albany (1980) FLC 90-905
Albion Insurance Co. Ltd v GIO (NSW) (1969) 121 CLR 342
Anast & Anastropoulos (1982) FLC 91-201
Bevan & Bevan (1995) FLC 92-600
Burke v LFOT Pty Ltd (2002) 209 CLR 282
Clauson & Clauson (1995) FLC 92-595
Figgins & Figgins (2002) 29 Fam LR 544
Hickey & Hickey (2003) FLC 93-143
In the Marriage of Weir (1993) FLC 92-338
Lane & Wharton [2010] FamCA 18
Lang v Le Doursicot (1993) 5 BPR 11
Mahoney v McManus (1981) 180 CLR 370
McLean v Discount and Finance Ltd (1939) 64 CLR 312
McMahon & McMahon (1995) FLC 92-606
Moulton v Roberts [1977] Qd R 135
Norbis v Norbis (1986) FLC 91-712
Nutting & Nutting (1978) FLC 90-410
Official Trustee in Bankruptcy v Citibank Savings Ltd (1995) 38 NSWLR 116
Pastrikos & Pastrikos (1980) FLC 90-897
Pierce & Pierce (1999) FLC 92-844
Polonius & York [2010] FamCAFC 228
Saxena & Saxena (2006) FLC 93-268
Staples v Baker [1999] 1 Qd R 317
Zalewski & Zalewski (2005) FLC 93-241

APPLICANT:

Ms Stefanovski

RESPONDENT:

Mr Stefanovski

FILE NUMBER:

SYF

4278

2006

DATE DELIVERED:

15 March 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Kent J

HEARING DATE:

31 October 2011, 1 November 2011 and 3 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms De Vere

SOLICITOR FOR THE APPLICANT:

Barkus Doolan Kelly

Orders

The Husband relinquish to the Wife the remaining net sale proceeds of … S Street, Suburb K, held in a Controlled Moneys account and that this Order be authority for the immediate release of those funds, including any accretions, to the Wife.
The Wife retain as her sole property absolutely:
(a) any credit balance in her CBA bank account number … 24;
(b) the contents and…

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 STEFANOVSKI & STEFANOVSKI

Details

AGLC: STEFANOVSKI & STEFANOVSKI [2012] FamCA 284
Case: [2012] FamCA 284
Decision Date: 15 March 2012

CaseChat Overview and Summary

The case of *Stefanoski & Stefanoski* concerned an application by the Husband for property orders and lump sum spousal maintenance, and by the Wife for spousal maintenance. The dispute involved claims by the Husband regarding an alleged imbalance in initial capital contributions, though his evidence was uncorroborated. The Wife’s serious illness and incapacity were identified as a significant factor under section 75(2)(o) of the *Family Law Act 1975*. The court also considered the relevance of the use made of initial capital, a business lease, and the fact that a small pool of assets did not reflect certain potential claims.

The legal issues before the court included the assessment of contributions, particularly where the Husband's parents made significant contributions. The court also had to determine the appropriateness of periodic versus lump sum spousal maintenance, given the Wife's circumstances. Claims for substantial "add backs" of notional property by the Husband were not pursued due to a lack of disclosure and evidence. A potential claim by the Husband as a co-surety of a business debt was also considered, but the chose in action was deemed incapable of valuation.

Kent J reasoned that a periodic spousal maintenance order was more appropriate than a lump sum, taking into account the section 75(2) factors, including the Wife's serious illness and incapacity. The court assessed the contributions of both parties and the Husband's parents. The final orders provided for the division of various assets, including bank accounts, superannuation interests, and company shares. The Husband was ordered to relinquish remaining sale proceeds of a property to the Wife. The Wife was to retain certain assets, and the Husband was to retain others. Crucially, the Wife was to transfer and relinquish her rights in several trusts and companies to the Husband, who was to indemnify her against any liabilities arising from these entities. The Husband was also ordered to pay periodic spousal maintenance to the Wife.

Orders

Orders of the court

The Husband relinquish to the Wife the remaining net sale proceeds of … S Street, Suburb K, held in a Controlled Moneys account and that this Order be authority for the immediate release of those funds, including any accretions, to the Wife.

The Wife retain as her sole property absolutely:

(a) any credit balance in her CBA bank account number … 24;

(b) the contents and medical equipment in her possession;

(c) the Wife’s superannuation interest described in these proceedings as her interest in the Commonwealth Financial Services account number 1;

(d) the Wife’s superannuation interest described in these proceedings as her interest in the Commonwealth Financial Services account number 2; and

(e) any interest the Wife still holds as a member of the Stefanovski Superannuation Fund.

The Husband retain as his sole property absolutely:

(a) any credit balance in his Westpac bank account;

(b) his interest in the company B Pty Ltd (ACN …);

(d) the contents in his possession.

The Wife transfer and relinquish to the Husband all of her right, title in and to the following:

(a) Any claim the parties or either of them have as co-sureties in respect of any debt or the payment in whole or in part of any debt relating to any of the entities referred to in this Order;

(b) The Stefanovski Property Trust;

(d) The Stefanovski Family Trust;

(e) C Pty Ltd;

(f) Stefanovski Holdings Pty Ltd (whether on its own account or as trustee of the Stefanovski Superannuation Fund or as trustee of the Stefanovski Property Trust); and

(g) B Pty Ltd (ACN …).

The Husband shall indemnify, and keep indemnified, the Wife against any liability of any nature which the Wife may have at any time arising in any way in respect of any of the entities referred to in Order 4, including any business or businesses conducted by any of those entities, including, but not limited to, R Business, whether:

(a) By reason of the Wife having been an employee or director or officer or shareholder of the company or entity;

(b) By reason of the Wife having been involved in any business conducted by any such entity;

(d) By reason of the Wife having given or executed a guarantee of any liability or liabilities of any such entity;

and such liability indemnified shall include, but be not limited to, liability to the Australian Taxation Office.

Except as specifically provided for by any Order to the contrary, as against the Husband, the Wife is the sole owner of, and the Husband has no interest in, all personal property (including choses in action) of whatsoever nature and kind in the possession or name of the Wife at the date of the making of this Order.

Except as specifically provided for by any Order to the contrary, as against the Wife, the Husband is the sole owner of, and the Wife has no interest in, all personal property (including choses in action) of whatsoever nature and kind in the possession or name of the Husband at the date of the making of this Order.

Except as specifically provided for by any Order to the contrary:

(a) The Husband shall indemnify 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 shall indemnify 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.

Except as specifically provided for by any Order to the contrary, each of the Husband and the Wife release the other from all debts owing from one to the other.

10.

Except as specifically provided for by any Order to the contrary, each of the Husband and the Wife shall retain absolutely all property or financial resources presently in the name or possession or control respectively of that party.

11.

The Wife shall retain absolutely, for her sole benefit, any interest she has as a member of the Stefanovski Superannuation Fund, or in any fund to which the Wife’s entitlement in the Stefanovski Superannuation Fund as at 30 June 2009 was transferred to or rolled into, other than the E Superannuation Fund.

12.

The Husband indemnify the Wife and keep her indemnified with respect to any claim made by P or D with respect to the withdrawal of funds held on trust by the parties or either of them for the benefit of either P or D.

Superannuation

13.

In relation to the Husband’s entitlement in the E Superannuation Fund:

(a) That pursuant to s 90MT(1)(a) of the Family Law Act 1975 that the Husband, a member of the superannuation fund, the E Superannuation Fund, and the Trustee of the E Superannuation Fund do all acts and things, sign all documents and give all consents so that whenever a splittable payment becomes available to the Husband from his interest in the Superannuation Fund, the Wife is entitled to an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $161,964.93, and there is a corresponding reduction in the entitlement of the Husband had these orders not been made.

(b) For the purpose of this Order:

(i) The base amount to be allocated to the Wife in the Superannuation Fund is $161,964.93; and

(ii) The operative time for this Order is four (4) days following the making of these Orders and this Order is to take effect from that operative time.

(c) The Trustee of the E Superannuation Fund shall pay or transfer the entitlement of the Wife created pursuant to Order 13(a), in cash to another superannuation fund nominated by the Wife.

14.

Within fourteen (14) days of the making of these Orders, each of the parties do all acts and things necessary to cause a sealed copy of these Orders to be served on the Trustee of the E Superannuation Fund.

15.

Having been accorded procedural fairness in relation to the making of these Orders, these Orders bind the Trustee of the E Superannuation Fund.

16.

These Orders relating to superannuation shall be binding upon the heirs, executors, administrators and assigns of the Husband and the Wife.

17.

The Trustee of the E Superannuation Fund, in accordance with the obligations set out under the Act and the Family Law (Superannuation) Regulations 2001 (Cth), shall do all acts and things and sign all such documents as shall be necessary to record the entitlement of and make payment or transfer to the Wife in accordance with Order 13.

18.

For the purpose of giving effect to these Orders, but only for that purpose, the Husband shall be permitted to draw down from his member account with the E Superannuation Fund to facilitate the payment required to be made to the Wife pursuant to these Orders, but otherwise the injunction imposed by Order made on 28 April 2011 remains in full force and effect pending compliance by the Husband with Order 13.

19.

Upon the Wife’s nominated superannuation fund receiving cleared funds in the amount of $161,964.93, rolled into her superannuation fund as provided for in these Orders, the injunction provided for in paragraph 3 of the Order of 28 April 2011 is discharged.

Spousal Maintenance

20.

The Husband pay or cause to be paid direct to the Wife or as the Wife may from time to time direct in writing, maintenance for the Wife in the sum of $375.00 per week, the first payment to be made within seven (7) days of the date of this Order, and then weekly thereafter. Such payments are to be made into the Wife’s Commonwealth Bank account number …24 or such other bank account as may be from time to time nominated by the Wife in writing.

21.

The payments referred to in Order 20 terminate upon the first in time of the following events:

(a) The death of the Wife; or

(b) The death of the Husband.

Other

22.

Each party have liberty to apply in respect of the implementation of any of these Orders on seven (7) days’ notice to the other party.

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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