Stone and Stone - [2013] FamCA 270

FAMILY COURT OF AUSTRALIA

STONE & STONE

[2013] FamCA 270

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the parties were married for 12 years – Where the difference in the parties’ claims is significant.
FAMILY LAW – PRACTICE AND PROCEDURE – Obligation of full and frank disclosure – Where the husband failed to disclose and inadequately disclosed aspects of his financial affairs.
FAMILY LAW – PROPERTY – BINDING FINANCIAL AGREEMENT – Section 90C of the Family Law Act 1975 (Cth) – Where the husband and wife entered into a binding financial agreement in 2003 – Where the wife seeks to enforce the outstanding balance of a loan made pursuant to the agreement and said to be owing to her by the husband.
FAMILY LAW – CHILD SUPPORT – Administrative assessment – Where the husband’s income was assessed at $180,000 per annum – Where the wife seeks an order that the husband’s income be assessed at $341,000 per annum for the purposes of the Child Support Assessment Act 1989 (Cth).

Child Support Assessment Act 1989 (Cth)
Family Law Act 1995 (Cth)
Family Law Rules 2004

Kannis v Kannis (2003) 30 Fam LR 83
White and Tulloch v White (1995) 19 FamLR 696
Wrigley and Wrigley (2004) FLC 93-182

APPLICANT:

Ms Stone

RESPONDENT:

Mr Stone

FILE NUMBER:

SYC

6953

2009

DATE DELIVERED:

18 April 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

21-22 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Richard Schonell SC

SOLICITOR FOR THE APPLICANT:

Diana Perla & Associates

COUNSEL FOR THE RESPONDENT:

Elizabeth Cohen

SOLICITOR FOR THE RESPONDENT:

Self-represented

Orders

Mr Stone (“the husband”) within two months from the date of these Orders pay to Ms Stone (“the wife”) the sum of $1,670,435 by way of property settlement.
It is declared that the Financial Agreement dated 23 December 2003 made between the husband and the wife is a Financial Agreement under s 90C of the Family Law Act 1975 (Cth) (“the Act”) and, pursuant to its power under s 90G of the Act, the Court makes the following order in relation to the enforcement of that agreement, that:
(a)the husband within two months from the date of these Orders pay to the wife the balance of $25,110 owing to the wife under said agreement.
The husband within two months from the date of these Orders pay to the wife the sum of $4,400 for the purpose of equalising the amount paid by each of the parties in respect of the fees charged by the single expert Mr M in the course of the proceedings.
In the event of non-payment by the husband to the wife of the sums specified in Orders (1), (2) and (3) herein by more than 24 hours from the due date for payment, the wife shall forthwith:
(a)be appointed as trustee and attorney of the husband for the purposes of selling the following properties:
(i)Suburb V property (Folio Identifier 1/…)
(ii)Suburb S property (Folio…

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 Stone and Stone

Details

AGLC: STONE & STONE [2013] FamCA 270
Case: [2013] FamCA 270
Decision Date: 18 April 2013

CaseChat Overview and Summary

In *Stone and Stone*, heard by Justice Fowler, the dispute concerned property settlement and the enforcement of a financial agreement between a husband and wife. The court was required to determine the quantum of property settlement payable by the husband to the wife, the validity and enforcement of a financial agreement, and the division of various assets including real property and superannuation interests. The court also considered an application regarding child support.

The court's reasoning involved assessing the parties' financial circumstances and applying the principles of property settlement under the *Family Law Act 1975* (Cth). Crucially, the court declared a financial agreement dated 23 December 2003 to be a valid financial agreement under s 90C of the Act and made orders for its enforcement under s 90G. The court also made specific orders regarding the sale of various properties to satisfy the husband's obligations, the transfer of shareholdings, and the division of superannuation interests.

The court ordered the husband to pay the wife a total sum of $1,670,435 by way of property settlement, plus a further $25,110 owing under the financial agreement, and $4,400 for expert fees. In default of payment, the wife was appointed trustee and attorney for the sale of specified properties to satisfy these obligations. The wife was also ordered to transfer her shareholding in X Holdings Pty Limited to the husband upon his payment. The court also made orders regarding the wife's superannuation interests in X Superannuation Fund, entitling the husband to 100% of splittable payments. The wife's application for child support was dismissed. Provisions were also made for a Registrar to give effect to the orders in the event of a party's default.

Orders

Orders of the court

Mr Stone (“the husband”) within two months from the date of these Orders pay to Ms Stone (“the wife”) the sum of $1,670,435 by way of property settlement.

It is declared that the Financial Agreement dated 23 December 2003 made between the husband and the wife is a Financial Agreement under s 90C of the Family Law Act 1975 (Cth) (“the Act”) and, pursuant to its power under s 90G of the Act, the Court makes the following order in relation to the enforcement of that agreement, that:

(a) the husband within two months from the date of these Orders pay to the wife the balance of $25,110 owing to the wife under said agreement.

The husband within two months from the date of these Orders pay to the wife the sum of $4,400 for the purpose of equalising the amount paid by each of the parties in respect of the fees charged by the single expert Mr M in the course of the proceedings.

In the event of non-payment by the husband to the wife of the sums specified in Orders (1), (2) and (3) herein by more than 24 hours from the due date for payment, the wife shall forthwith:

(a) be appointed as trustee and attorney of the husband for the purposes of selling the following properties:

(i) Suburb V property (Folio Identifier 1/…)

(ii) Suburb S property (Folio Identifier 29/…)

(iii) Suburb P property (Folio Identifier 5/…)

(iv) Queensland property and

(b) be appointed as trustee for the purpose of instructing the Executor of the estate of the late Mrs Stone Snr to finalise the estate and thereafter to sell the property at N Street, Suburb R (Folio Identifier C/…) and

upon the sale of the above properties, the wife shall apply the net proceeds of sale in full satisfaction of the husband’s obligations pursuant to Orders (1), (2) and (3) herein and pay any remaining balance to the husband.

Upon the husband’s payment to the wife of the sums set out in Orders (1), (2) and (3) herein, and upon the husband’s provision to the wife of the necessary documentation that she may be required to sign, the wife shall do all acts and things necessary to transfer to the husband all of her shareholding in X Holdings Pty Limited.

Whenever a splittable payment is payable in respect of the superannuation interests of Ms Stone in X Superannuation Fund:

(a) Mr Stone is entitled to be paid the amount calculated in accordance with the Family Law Superannuation Regulations 2001 by reference to a figure of 100 per cent and

(b) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.

The above Order binds the trustees of the X Superannuation fund.

Except as otherwise provided for in the Orders herein, the wife and the husband shall retain all personal items and other property including superannuation currently in their name, possession or control.

The wife’s application in respect of the Court setting the husband’s assessable income at $341,000 per annum for the purposes of child support be and is hereby dismissed.

In the event of a party failing for a period of 14 days to do all acts and things necessary to give validity to the Orders herein, a Registrar of the Family Court of Australia at Sydney is hereby empowered pursuant to s 106A of the Family Law Act 1975 (Cth) to do all acts and things necessary in the place and stead of the defaulting party to give validity and effect to these Orders.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.