FAMILY COURT OF AUSTRALIA
Stinson & Goldsmith (No. 2) [2021] FamCA 540
File number(s): BRC 397 of 2018 Judgment of: CAREW J Date of judgment: 23 July 2021 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Where the husband seeks to have the entirety of the wife’s partial property settlement considered an add back in final property settlement – Where a partial property settlement can be reconsidered at final hearing – Where there is no exceptional reason to include add backs in consideration of final property settlement.
FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where there is consideration of myriad contributions made by each party to the marriage including post separation inheritances – Where s 75(2) factors of the Family Law Act 1975 (Cth) do not favour either party to a marriage – Where it is just and equitable to distribute property on a proportional basis 57.5/42.5 in the husband’s favour – Where husband retains joint property and property in his name – Where wife retains property in her name and receives a cash payout.
Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Cases cited: C & C[1998] FamCA 143
Chong & Chong [2016] FamCAFC 211
Dickons & Dickons (2012) 50 FamLR 244
Eufrosin & Eufrosin [2014] FamCAFC 191
Farmer & Bramley (2000) FLC 93-060
Gabel & Yardley [2008] FamCAFC 162
In the Marriage of Aleksovski (1996) FLC 92-705
Kennon v Kennon (1997) FLC 92-757
M & M [1998] FamCA 42
Stanford & Stanford (2012) 247 CLR 108
Trevi & Trevi [2018] FamCAFC 173
Wallis & Manning (2017) FLC 93-759
Williams & Williams [2007] FamCA 313
Number of paragraphs: 95 Date of hearing: 21 – 23 April 2021 Place: Brisbane Counsel for the Applicant Mr T Kirk QC Solicitor for the Applicant Phillips Family Law Counsel for the Respondent Mr S J Williams QC Solicitor for the Respondent HopgoodGanim Lawyers ORDERS
BRC 397 of 2018 BETWEEN: MR STINSON
Applicant Husband
AND: MS GOLDSMITH
Respondent Wife
ORDER MADE BY:
CAREW J
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS:
BY CONSENT
Definitions
1.In this Order, unless the context otherwise permits:
1.1.Business K and Business S means the business names of Business K and Business S registered in the name of the wife and the bank accounts related to same being ANZ Business Advantage account ending #...58 and ANZ Business Advantage account ending #...28 and the balance standing to credit in those accounts.
1.2.ANZ mortgages for Property B and Property C means the loans from the Australia and New Zealand Banking Group Limited to the husband being Equity Manager account ending #...31 and Residential Investment Loan Account ending #...56 secured over Property B and Property C by first registered bill of mortgage number …03 and second registered bill of mortgage number …04.
1.3.Property J means the investment property situated at Property J in the State of New South Wales registered in the name of the wife and more particularly described as Lot…
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- AGLC
- Stinson & Goldsmith (No. 2) [2021] FamCA 540
- Case
- [2021] FamCA 540
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether a previously agreed partial property settlement could be revisited and included as an add-back in the final property settlement, and if so, whether there were exceptional reasons to do so. Furthermore, the court needed to consider the myriad of contributions made by each party to the marriage, including post-separation inheritances received by the husband, and assess whether the factors under section 75(2) of the *Family Law Act 1975* (Cth) favoured either party. Ultimately, the court had to determine what constituted a just and equitable distribution of the parties' property.
Carew J reasoned that a partial property settlement could indeed be reconsidered at a final hearing, but found no exceptional reason to include such settlements as an add-back in the final property settlement. The court acknowledged the significant contributions of both parties throughout the marriage and post-separation. Applying the principles from *Bonnici & Bonnici*, the court considered the husband's inheritances, noting that while inheritances are not a protected category, they are generally treated as an entitlement of the recipient party unless there are exceptional circumstances. In this instance, the court found that the contributions of both parties were to be regarded as equal, and that the section 75(2) factors did not favour either party.
Consequently, the court ordered a property distribution of 57.5% in favour of the husband and 42.5% in favour of the wife, deeming this to be a just and equitable outcome. The husband was to retain joint property and property in his name, while the wife was to retain property in her name and receive a cash payout. The detailed orders specified the division of numerous assets and liabilities, including businesses, properties, and bank accounts, and provided for the refinancing of certain mortgages and the discharge of others.
Orders
Orders of the court
BRC 397 of 2018
BETWEEN:
MR STINSON
Applicant Husband
AND:
MS GOLDSMITH
Respondent Wife
ORDER MADE BY:
CAREW J
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS:
BY CONSENT
Definitions
1. In this Order, unless the context otherwise permits:
1.1. Business K and Business S means the business names of Business K and Business S registered in the name of the wife and the bank accounts related to same being ANZ Business Advantage account ending #...58 and ANZ Business Advantage account ending #...28 and the balance standing to credit in those accounts.
1.2. ANZ mortgages for Property B and Property C means the loans from the Australia and New Zealand Banking Group Limited to the husband being Equity Manager account ending #...31 and Residential Investment Loan Account ending #...56 secured over Property B and Property C by first registered bill of mortgage number …03 and second registered bill of mortgage number …04.
1.3. Property J means the investment property situated at Property J in the State of New South Wales registered in the name of the wife and more particularly described as Lot .. in Strata Plan …, Local Government area Sydney, Parish of …, County of …and being all that land contained in Title reference Folio … / SP… and subject to the DD Bank mortgage for Property J;
1.4. Business G means the company Business G Pty Ltd ACN …. The sole director and secretary of Business G is the husband. The sole shareholder of Business G is the husband who holds 2 fully paid ordinary shares.
1.5. Business G bank account means the ANZ Business Advantage account number ending #...23 in the name of Business G Pty Ltd and the balance standing to credit in the account.
1.6. Business G debtors means the debtors owing to Business G Pty Ltd.
1.7. Property C means the investment property situated at Property C Town A in the State of New South Wales registered in the name of the husband and more particularly described as Lot … in Deposited Plan … local government area of …, Parish of …, County of … and being all that land contained in Title Reference Folio … and subject to the ANZ mortgages for Property B and Property C.
1.8. Debt owing to the Respondent’s mother means the loan from the mother of the wife to the wife currently standing with a balance of $30,000 owing.
1.9. Property P means the rural property situated at Town HH in the State of New South Wales registered in the name of the husband and more particularly described as:
(a) Lot … in Deposited Plan … local government area of …, Parish of …, County of … and Parish of … being all that land contained in Title reference Folio …/…; and
(b) Lot … in Deposited Plan ….
1.10. Husband's credit cards means the following credit card facilities in the name of the Husband and the balance standing to debit in those accounts:
(a) ANZ Frequent Flyer Gold Account No. …94;
(b) ANZ Frequent Flyer Platinum Account No. …71
1.11. Husband's motor vehicles means the following motor vehicles registered in the name of the Husband and driven by the husband:
(a) Motor vehicle 1 Registration (NSW) …; and
(b) Motor vehicle 2 Registration (NSW) ….
1.12. Husband's M Shareseans the following H Shareseld by the husband in publicly listed companies:
(a) 591 H Shares.
1.13. DD Bank mortgage for Property J means the loans from DD Bank Ltd to the wife bank package equity accounts ending #...12 and mortgage loan #...99 secured over Property J by first registered bill of mortgage number ….
1.14. Partnership means the partnership of the husband and the wife known as Stinson and Goldsmith Partnership.
1.15. Property Q means the rural property situated at Town HH, in the State of New South Wales registered in the name of the husband and more particularly described as:
(a) Lot … in Deposited Plan …, local government area of …, Parish of …, County of … and being all that land contained in Title reference Folio … / …;
(b) Lot … in Deposited Plan …, local government area of …, Parish of …, County of … and being all that land contained in Title reference Folio … / …;
(c) Lot … in Deposited Plan …, local government area of …, Parish of …, County of … and being all that land contained in Title reference Folio … / …;
(d) Lot … in Deposited Plan …, local government area of …, Parish of …, County of … and being all that land contained in Title reference Folio … / …; and
(e) Lot … in Deposited Plan …, local government area of …, Parish of …, County of … and being all that land contained in Title reference Folio … / ….
1.16. Property E means the rural property situated at Town HH, in the State of New South Wales registered in the names of the husband and the wife as tenants in common in equal shares (per Stinson & Goldsmith Partnership) and more particularly described as:
(a) Lots …-… and … in Deposited Plan …, local government area of …, Parish of …, County of … and being all that land contained in Title reference Folio auto consol …-…;
(b) Lot … in Deposited Plan …, local government area of …, Parish of …, County of … and being all that land contained in Title reference Folio …/…; and
(c) Lot … in Deposited Plan …, local government area of …, Parish of …, County of … and being all that land contained in Title reference Folio …/…; and
all subject to the EE Bank mortgage for Property E.
1.17. Stinson Goldsmith Superannuation Fund means the Australian Taxation Office regulated self-managed superannuation fund Stinson Goldsmith Superannuation Fund ABN ….
1.18. Property B means the investment property situated at Town A in the State of New South Wales registered in the name of the husband and more particularly described as Lot … in Deposited Plan … contained in Title reference Folio …/… and subject to the ANZ mortgages for Property B and Property C.
1.19. Property D means the rural properties and homestead situated at Town A, in the State of New South Wales registered in the name of the husband and more particularly described as:
(a) Lot … Property D means the property situated with the former matrimonial home and adjacent to Lot … Property D more particularly described as lot … on Deposited Plan …, local government area …, Parish of …, County of … and being all that land contained in Title reference Folio …/…;
(b) Lot … Property D means Lot … on Deposited Plan … local government area …, Parish of …, County of … and being all that land contained in Title reference Folio …/…; and
(c) Lot … Property D means Lot … on Deposited Plan … local government area …, Parish of …, County of … and being all that land contained in Title reference Folio …/… and being adjacent to Property Q.
1.20. Wife's bank accounts mean the following bank accounts in the name of the wife and the balances standing to credit in those accounts:
(a) ANZ GST Payment account ending #...99;
(b) ANZ Access Advantage Cheque account ending #...53;
(c) FF Bank Direct Savings Maximiser account ending #...11;
1.21. Wife's credit cards means the following credit card facilities in the name of the wife and the balance standing to debit in those accounts:
(a) GG Bank Rewards Credit Card Account No …84;
(b) GG Bank Rewards Signature Visa Credit Card Account No …41;
1.22. Wife’s HECS debt means the wife’s HECS debt currently standing in the sum of $13,053 owing.
1.23. Wife's M Shareseans the following H Shareseld by the wife in publicly listed companies:
(a) 134,744 M Shares; and
(b) 13,000 N Shares.
1.24. Wife's motor vehicle means the following motor vehicle registered in the name of the wife and driven by the wife:
(a) Motor vehicle 3 Registration ….
1.25. Wife’s Superannuation means the wife’s Super Fund 1 superannuation entitlement.
Partnership - Transfer to husband
2. Within 30 days from the date of this Order the parties do all such acts and things and execute all documents necessary to transfer all assets and liabilities of the partnership (save in respect of Property E and the EE Bank Loan) to the husband including but not limited to:
(a) the current funds at bank (on the understanding that funds disbursed after 1st July 2017 will be retained by the party who received those funds and the wife will not be required to reimburse any such funds received to the husband);
(b) livestock;
(c) plant and equipment as from 1 July 2017; and
(d) the husband be responsible for any taxation liability that may arise in respect of the trading activities since 1 July 2017.
3. That the husband indemnify the wife and keep her indemnified in relation to any liabilities that may arise in respect of the assets, liabilities and trading of partnership assets as and from 1 July 2017.
Husband retains
4. That the husband retain the following assets:
(a) Property B;
(b) Property C;
(c) Property Q;
(d) Business G Pty Ltd including bad debtors owing and monies held in Business G’s bank account;
(e) Livestock held in the husband’s name;
(f) Trailer;
(g) 564 H Shares held in the husband’s name;
(h) Bank accounts in the husband’s name; and
(i) Furniture & contents in the husband’s name and/or possession.
Wife retains
5. That the wife retain the following assets:-
(a) The business “Business K”;
(b) Motor vehicle 3;
(c) Bank accounts in the wife’s name;
(d) 134,744 M Shares in the wife’s name;
(e) 13,000 N Shares in the wife’s name;
(f) Jewellery in the wife’s possession;
(g) Furniture & contents in the wife’s name and/or possession; and
(h) The wife’s superannuation entitlements with Super Fund 1.
Liabilities
6. That the husband be solely liable for and indemnify the wife in respect of the following liabilities:
(a) ANZ Equity Manager Loan no. …31;
(b) ANZ Residential Investment Loan no. …56;
(c) Tax relating to the sale of the business by Business G Pty Ltd in the 2018 tax year;
(d) Tax payable by Business G Pty Ltd in respect of income received from remaining debtors of Business G; and
(e) Any other loan, lease, credit card or other liability held or registered in his sole name.
7. That the wife be solely liable for and indemnify the husband in respect of the following liabilities:
(a) DD Bank Mortgage Loan Account No. …39; and
(b) Any other loan, lease, credit card or other liability held or registered in her sole name.
Wife’s loan account(s) with debit balance in books of account
8. That from 1 July 2017:
(a) The husband be responsible for and/or be entitled to all and any loan accounts in the name of the wife (whether solely or jointly with others) in the partnership, if any, standing with a debit or credit balance in the books of account of all and any entity within the partnership and indemnify and keep indemnified the wife from all liability howsoever arising therein and the husband, and his servants, agents, executors, administrators, substitutes (including a person who becomes a party by novation) and permitted assigns be restrained from pursuing the wife for any and all funds, liabilities or otherwise which may appear in the accounts of the partnership; and
(b) The wife, her servants, agents executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns be restrained from pursuing the partnership for any and all funds, liabilities or otherwise which may appear in the accounts of the partnership.
(c) And for the sake of clarity the reference to ‘loan accounts’ in this order excludes any loan account to any third-party or external creditor including but not limited to EE Bank.
(d) And upon the husband preparing or having prepared the returns and financials for the partnership for the financial years 2015/2016 through 2020/2021 (or until the partnership is dissolved, whichever occurs first) he shall provide copies of same to the wife forthwith to enable the wife to amend and/or file her personal tax returns.
Spousal Maintenance
9. This is not an Order to which Section 77A of the Family Law Act 1975 (Cth) (“the Act”) applies and there are no provisions for maintenance of the parties in this Order.
Interest to Accrue in event of default
10. That subject to this Order, in the event that the whole or part of any payment required under this Order has not been made by the date required, then interest accrues in addition to the payment due and payable, at the interest rate prescribed by the Family Law Rules 2004 (Cth) (“the Rules”) adjusted monthly from the due date, to be calculated from the date of default until the date of payment.
Registrar to sign if default
11. That the parties execute all deeds or instruments and do all acts and things necessary to give validity and operation to the deed or instrument to give effect to this Order.
12. That if either party refuses, fails or neglects to execute any document necessary to put this Order into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court of Australia at Brisbane be and is hereby appointed pursuant to Section 106A of the Act to execute such document in the name of such party.
Severance of tenancy
13. That any joint tenancy of the parties in any real or personal estate is forthwith expressly severed.
Preparation of documents and duty
14. That save as otherwise provided herein the transferee spouse or the spouse receiving the benefit of any transaction pursuant to this Order prepare the documentation necessary to give effect to the provision of this Order at their cost and further be responsible for the payment of registration fees and any other fees in relation to the transfer of property into their name.
15. That any duty payable on any transaction arising out of this Order be paid by the transferee spouse or the spouse receiving the benefit of such transfer or transaction.
16. That the parties promptly comply with the requirements of the Duties Act 2001 (Qld) (or equivalent legislation of other States and Territories of the Commonwealth of Australia) and associated legislation and all requisitions issued by Revenue NSW, NSW Land Registry, Transport Roads & Maritime Service NSW, Australian Taxation Office, ASIC, National Livestock Identification System and any other government department in relation to any document executed or transaction pursuant to or putting into effect the terms and conditions of this order. In default of either of the parties hereto complying with any requisition so issued within 14 days of the date upon which any requisition issues, the party not in default shall be entitled to comply with any of the said outstanding requisitions and recover from the other party in default the costs and outlays incurred in complying with any of the said requisitions such costs to be calculated in accordance with the Rules.
IT IS FURTHER ORDERED
Transfer of Property E from the partnership
17. That within 60 days of the date of this Order the parties transfer to the husband all their right, title and interest in Property E and for that purpose the following shall apply:
(a) If the husband requires the return of the transfer for stamping purposes, then:
(i) The husband’s solicitor will advise the wife of this requirement at the time the transfer documentation is delivered;
(ii) Subject to the husband’s solicitor giving an undertaking to use the transfer for stamping purposes only but to otherwise hold the transfer in escrow pending settlement, the wife must sign and deliver the transfer to the husband’s solicitor no later than 14 days prior to the settlement date.
(b) If the property has a Certificate of Title, and that Certificate is held by someone other than the husband, wife or mortgagee, then subject to the husband’s solicitor providing an undertaking to hold the Certificate of Title in escrow pending settlement, the parties must sign an irrevocable authorisation and direction (such document to be prepared by the husband’s solicitor) to release the Certificate of Title to the husband’s solicitor and deliver the authorisation document to the husband’s solicitor no later than 10 days prior to the settlement date.
(c) On or before the settlement date, the wife must:-
(i) Hand to the husband’s solicitor any Certificate of Title for the property;
(ii) Hand to the husband’s solicitor all transfer documents duly signed;
(iii)
Hand to the husband’s solicitor all records and documents relating to
the purchase of the property together with any improvements carried out on the property since that acquisition such documents being necessary to be retained for the calculation of the index cost base of the property to assess any future capital gains tax liability.
(iv) Do all such acts and things and sign all documents necessary to give effect to the said transfer.
Discharge and release of mortgage
18. That within 60 days of the date of this Order and contemporaneously with the transfer of Property E pursuant to paragraph 17 herein, the husband refinance into his sole name the joint EE Bank loan being mortgage registration number …89 in favour of EE Bank Australia Limited, and that the wife sign within seven (7) days of such request being made, an authority and any other document required by the mortgagee to facilitate the administrative process of release of the mortgage.
19. That in default of the husband complying with paragraph 18 herein the parties are to forthwith do all things necessary to sell Property E at a price agreed and failing agreement for $700,000 with the net proceeds of sale paid to the husband.
Property D and Property P
20. That subject to paragraph 21 herein, the husband retain Property D and Property P.
21. That the husband pay to the wife within 60 days of the date of this Order the sum of $602,415.
22. That in default of the husband complying with paragraph 21 herein the husband shall transfer all his right title and interest in Property D to the wife free of encumbrance and the wife is to pay the husband within a further 60 days the sum of $447,585.
23. That in the event the husband is required to transfer Property D to the wife pursuant to paragraph 22 herein, the husband shall provide a right of carriageway through Property P to the wife, and for this purpose the husband and wife shall jointly engage a firm of surveyors as agreed and failing agreement PP Consulting Surveyors and share equally in the costs of the creation of the right of carriageway including signing all documents and taking all steps to cause same to be registered on the title of the property.
24. That in the event the wife is to acquire Property D pursuant to paragraph 22 herein and she defaults in the payment to the husband of the sum required, then the husband will forthwith elect to sell either Property D or Property P or Property E and pay to the wife the sum of $602,415 from the proceeds of sale together with interest thereon calculated from 120 days from the date of this Order to the date of payment.
Stinson Goldsmith Superannuation Fund
25. That within 14 days of the date of this Order, the husband and wife do all acts and things and sign all documents as advised by Super Fund 2 to wind up the Stinson Goldsmith Superannuation Fund and the parties shall share equally all costs relating to those tasks except that the wife will be solely responsible for any penalties and interest due and payable to the Australian Taxation Office as a result of the delay in filing the super fund’s taxation returns and activity statements.
Miscellaneous
26. That save as provided herein each party otherwise retain all property in their respective name, possession or control.
27. That each party have liberty to apply upon the giving of 14 days’ notice in writing in relation to the implementation of this order.
28. That in the event that a party requires a determination of a costs application and the parties are unable to reach agreement in relation to costs within 21 days from the date of this Order then the following shall apply:
(a) The person applying for costs shall file and serve one affidavit (if necessary) and written submissions within 14 days from the date of this Order;
(b) The person against whom costs are sought shall file and serve one affidavit (if necessary) and written submissions within a further 14 days; and
(c) The person applying for costs shall file and serve one affidavit strictly in reply (if necessary) and written submissions strictly in reply (if necessary) within a further 14 days.
29. That the costs application (if any) will be heard in chambers without the need for further appearance unless a written request is received for the matter be re-listed.
30. That all outstanding applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
I conclude that the myriad of contributions made by each party during the marriage should be regarded as equal.HAVING REGARD TO THE MYRIAD OF CONTRIBUTIONS MADE BY EACH PARTY DURING TO THE MARRIAGE AND AFTER SEPARATION, WHAT WEIGHT SHOULD BE GIVEN TO THE HUSBAND’S POST SEPARATION INHERITANCES? The husband’s father died in late 2018 and the husband inherited Property D, Property P and Property Q. He also received cash of about $85,000 which the husband used to pay legal fees. The current value of the three properties is $1,940,000. Included in that value is the former matrimonial home built by the parties on Property D. The former matrimonial home (including sheds situated on the land) is valued at $600,000 to which both parties contributed and it is agreed the husband holds $300,000 of the value on trust for the wife. The adjusted value of the inherited properties is $1,340,000. The wife conceded during submissions that she could not maintain an argument that the inheritance was intended for, or received by, both of them. In Bonnici & Bonnici[21] the Full Court said (from [43]):43. A property does not fall into a protected category merely because it is an inheritance. On the other hand, if there are ample funds from which an appropriate property settlement can be made and a just result arrived at, then the fact of a recently acquired inheritance would normally be treated as an entitlement of the party in question.44. The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances. Such circumstances might include the care of the testator prior to death by the husband or wife as the case may be or other particular services to protect a property. See James and James (1978) FLC 90-487. But there was no evidence of this in the present case despite submissions by counsel for the wife to the contrary. Accordingly, we think that in the present case the monies received by the husband from the sale of the freehold and from his uncle's estate should not be brought into account.[21] (1992) FLC 92-272 (“Bonnici”). However, the Full Court went on to say:45. Because his Honour did not condescend to detail as to how he arrived at his finding of equality of contribution, and because of the fact of the substantial inheritance to which the wife did not contribute it is, we think, necessary for this Court to examine carefully whether his Honour's finding can be supported.46. In a case such as this, we think that the global approach, taken by his Honour, presents considerable difficulties. If the matter had been approached upon an asset by asset basis, we think that the task of his Honour and this Court would have been a simpler one. To approach the matter globally as his Honour did, in circumstances where the wife had clearly made no contribution to a major asset, must of necessity have involved a greater weighting of her contribution than that of equality to the assets to which she did contribute. There would, nevertheless, have been nothing wrong with his Honour having approached the matter globally if he had explained how he did so.47. If his Honour did so weight her contributions, he should have outlined his reasoning so that the same could be the subject of examination. Because his Honour failed to do this it seems to us that his judgment cannot stand unless it can be established that the end result which he reached was a proper one.