STEWARDSON & STEWARDSON - [2012] FamCA 109

FAMILY COURT OF AUSTRALIA

STEWARDSON & STEWARDSON

[2012] FamCA 109

FAMILY LAW - PROPERTY SETTLEMENT – determining matrimonial asset pool – husband’s business debts included in matrimonial pool as liability – husband’s outstanding fees included in matrimonial pool as asset - parties superannuation interests treated as assets in matrimonial pool – both parties received significant inheritances from deceased members of their families of origin

FAMILY LAW - PROPERTY SETTLEMENT - contributions – adjustments – just and equitable orders - husband primary income earner – wife primary homemaker and carer for the children – wife’s ill-health – wife’s initial contribution was superior – parties agreed their respective contributions through personal exertion were equal – following separation the husband’s contributions were superior – finding parties’ overall contribution-based entitlements equal – wife has additional entitlement to payment of her ongoing medical expenses from a trust fund of $400,000 established by her late father – significant differential in the income-capacity of the parties – wife in receipt of disability pension and has no income-earning capacity – husband on high income - adjustment of 10 per cent in favour of wife warranted

FAMILY LAW - SPOUSAL MAINTENANCE – order for husband to pay to wife spousal maintenance until completion of the sale of the former matrimonial home

Family Law Act 1975 (Cth) ss 75, 79
Family Law Rules 2004

Brodie v Brodie (2009) 41 Fam LR 18
Coghlan & Coghlan (2005) FLC 93-220
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Marriage of Bevan (1995) FLC 92-600
Marriage of Bonnici (1992) FLC 92-272
Marriage of Kessey (1994) FLC 92-495

APPLICANT:

Ms Stewardson

RESPONDENT:

Mr Stewardson

FILE NUMBER:

SYC

4504

2009

DATE DELIVERED:

8 March 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

13 & 14 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R Lethbridge SC & Ms M Falloon

SOLICITOR FOR THE APPLICANT:

Patrick Grimes & Co

COUNSEL FOR THE RESPONDENT:

Mr J Lloyd SC

SOLICITOR FOR THE RESPONDENT:

Aitken Lawyers

Orders

The parties shall do all such acts and things and sign all such documents as may be necessary to forthwith list for sale by private treaty the real property and improvements comprising Folio Identifier …, being the property more commonly known as … C Street, Suburb L, NSW (“the property”).
For the purposes of implementing Order 1 hereof:
(a)The listing agent shall be as agreed between the parties, and in default of agreement, with the agent chosen by ballot from the respective choices of the parties.
(b)The listing price for the property shall be as agreed between the parties, and in default of agreement, the price nominated by the listing agent.
(c)In the event of the property not being sold within 3 months from the date of its listing for sale then it shall be put to sale by public auction on the following terms:
(i)The auctioneer shall be as agreed between the parties, and in default of agreement,…

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 STEWARDSON & STEWARDSON

Details

AGLC: STEWARDSON & STEWARDSON [2012] FamCA 109
Case: [2012] FamCA 109
Decision Date: 8 March 2012

CaseChat Overview and Summary

In the matter of STEWARDSON & STEWARDSON, Austin J of the Family Court of Australia determined property settlement and spousal maintenance orders between the husband and wife. The dispute concerned the division of the matrimonial asset pool, which included the former matrimonial home, business debts of the husband, outstanding fees owed to the husband, and the parties' respective superannuation interests. Both parties had also received significant inheritances.

The court was required to determine how to treat the husband's business debts and outstanding fees within the matrimonial pool, how to value and divide the parties' superannuation interests, and to make just and equitable orders for property settlement and spousal maintenance, considering the parties' respective contributions, the wife's ill-health and lack of income-earning capacity, and the husband's high income. The court also had to consider an entitlement for the wife to ongoing medical expenses from a trust fund established by her late father.

Austin J found that the parties' overall contributions to the marriage were equal, despite the husband being the primary income earner and the wife being the primary homemaker and carer for the children. The court noted that the wife's initial contribution was superior, and while the husband's contributions were superior post-separation, their overall entitlements based on contribution were equal. However, an adjustment in favour of the wife was warranted due to the significant differential in income capacity, her disability pension and lack of earning capacity, and the husband's high income. The court also ordered the husband to pay spousal maintenance to the wife until the sale of the former matrimonial home.

The court ordered the immediate listing of the former matrimonial home for sale, with specific provisions for private treaty and auction if necessary. Upon sale, proceeds were to be applied to sale costs, outstanding rates and levies, encumbrances including a mortgage and overdraft, a specific sum to the wife, and then the balance divided with 61.28% to the wife and the remainder to the husband. The wife was to continue to maintain the property pending sale. The husband was declared the sole owner of E Pty Ltd shareholdings, and the wife was to resign from any positions within the company. Other assets and debts were to remain with the party in possession or in whose name they were held. The husband was ordered to pay the wife $536 per week in spousal maintenance until the property sale. The Registrar was empowered to execute documents if a party refused to do so. Costs were reserved.

Orders

Orders of the court

The parties shall do all such acts and things and sign all such documents as may be necessary to forthwith list for sale by private treaty the real property and improvements comprising Folio Identifier …, being the property more commonly known as … C Street, Suburb L, NSW (“the property”).

For the purposes of implementing Order 1 hereof:

(a) The listing agent shall be as agreed between the parties, and in default of agreement, with the agent chosen by ballot from the respective choices of the parties.

(b) The listing price for the property shall be as agreed between the parties, and in default of agreement, the price nominated by the listing agent.

(c) In the event of the property not being sold within 3 months from the date of its listing for sale then it shall be put to sale by public auction on the following terms:

(i) The auctioneer shall be as agreed between the parties, and in default of agreement, the auctioneer chosen by ballot from the respective choices of the parties.

(ii) The auction shall take place within six weeks of the deadline date for sale by private treaty.

(iii) The reserve price shall be as agreed between the parties, and in default of agreement, the reserve price nominated by the auctioneer.

(d) In the event that the property is not sold by auction, or private negotiation within a further seven days, then it shall be submitted to successive auctions within further six weeks periods until sold, otherwise upon the same terms and conditions as applied to the first auction.

Upon completion of the sale of the property pursuant to Orders 1 and 2 hereof, the proceeds of sale shall be applied as follows:

(a) Firstly, to pay all costs, commissions, and expenses of the sale, and to pay any Council and water rates and maintenance levies outstanding in respect of the property;

(b) Secondly, to discharge any registered encumbrance or any other liability affecting the property, including but not limited to:

(i) The National Australia Bank mortgage; and

(ii) The National Australia Bank overdraft account;

(d) Fourthly, to pay 61.28% of the balance then remaining to the wife; and

(e) Fifthly, to pay the balance then remaining to the husband.

Pending implementation of Orders 1-3 hereof, the wife shall continue to keep the property in good repair and shall continue to meet the cost of mortgage repayments, rates, levies, and insurances as and when they fall due.

The husband is declared the sole legal and beneficial owner (as between the parties) of, and the wife shall forthwith execute all such documents as may be necessary to transfer to the husband, all legal and equitable title in the shareholdings of the parties in E Pty Ltd.

The wife shall forthwith execute all such documents as may be necessary to resign any and all positions currently held by her in E Pty Ltd.

Unless otherwise provided:

(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder, investment accounts are deemed in the possession of the named investor, and superannuation entitlements are deemed in the possession of the superannuant; and

(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names.

The husband shall pay to the wife the sum of $536 per week by way of spousal maintenance upon the following conditions:

(a) The first payment is due 7 days from the date of these orders;

(b) Payments shall be made by way of direct deposit to the wife’s account … 69 held with the Westpac Bank;

In the event of either party refusing or neglecting to sign within seven days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s.106A of the Family Law Act 1975 (Cth).

10.

Costs are reserved for 28 days.

11.

Any and all outstanding applications are 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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