Strahan and Strahan (No. 4) - [2017] FamCA 949

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 4)

[2017] FamCA 949

FAMILY LAW – PROPERTY – Where proceedings have been extant for many years – where wife applies for adjournment and senior counsel acknowledges that if unsuccessful, the case would proceed as undefended – where adjournment refused – orders made on the available evidence.

Family Law Act 1975 (Cth)
Income Tax Assessment Act 1997 (Cth)

Bevan & Bevan (2013) 49 Fam LR 387
Chorn and Hopkins [2004] FamCA 633; (2004) FLC 93-204
Fields and Smith (2015) FLC 93-638
Markarian v R (2006) 228 CLR 357
Pierce and Pierce (1999) FLC 92-844
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Strahan & Strahan [2017] FamCA 76
Strahan & Strahan (No. 2) [2017] FamCA 248

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

23 November 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

13 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Livesey QC

SOLICITOR FOR THE APPLICANT:

Charlton Rowley Legal

COUNSEL FOR THE RESPONDENT:

Mr Wilson

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

That the husband have leave to proceed in the absence of the wife.
By 4.00pm on 31 January 2018 (or at such other time as the parties may agree in writing), the husband:
(a) Pay to the wife $1.7 million; and
(b) Authorise his solicitors to release to the wife, the sum of $300,000 held on trust pursuant to the orders of this court.
Within 7 days of being presented with the necessary documents to give effect to this order, the wife do all such acts and things and sign any necessary document to:
(a)      resign any office she holds in the following companies:
(i)       KB Pty Ltd;
(ii)      TS Pty Ltd; and
(iii)     WS Pty Ltd
(“the companies”)
(b)      Relinquish or resign as an appointor of the Mr S Trust;
(c)Transfer to the husband or his nominee any shares held by her in the companies;
(d)Assign to the husband any monies standing to her credit in the accounts of the companies and/or the Strahan Trust and the Mr S Trust (“the trusts”) and relinquish any right or entitlement which she may have under the deeds of settlement of the trusts;
(e)Withdraw, at her expense, any and all caveats lodged by her against the titles of the real properties to be retained by the husband in Australia, Hong Kong, Switzerland or Southern Europe; and
(f)Deliver to the husband the keys to the apartment in Switzerland.
Should the wife fail to comply with the terms of paragraph (3) of these orders, pursuant to s 106A of the Family Law Act 1975 (Cth), a registrar of the Family Court of Australia at Adelaide is appointed to sign all such documents in the name of the wife as may be required to give effect to these orders and the registrar shall be satisfied of the default of the wife upon production of…

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 Strahan and Strahan (No. 4)

Details

AGLC: Strahan and Strahan (No. 4) [2017] FamCA 949
Case: [2017] FamCA 949
Decision Date: 23 November 2017

CaseChat Overview and Summary

The case of *Strahan and Strahan (No. 4)* involved a dispute between a husband and wife concerning the division of their assets. The proceedings were before Cronin J in the Family Court of Australia.

The court was required to determine the just and equitable distribution of the parties' wealth, considering their respective contributions and future economic circumstances. Key issues included the valuation of assets, the impact of past payments and maintenance on the overall settlement, and the wife's need to maintain an affluent lifestyle in the absence of ongoing spousal maintenance.

Cronin J reasoned that while the husband had made overwhelming contributions to the acquisition of assets, the disparity in the parties' future economic circumstances necessitated a settlement that provided the wife with sufficient funds to maintain her accustomed lifestyle. The court considered the husband's proposed distribution, which allocated approximately $9.9 million to the wife, but found this amount to be insufficient when factoring in past payments and the wife's future financial needs. The court also noted the lack of evidence to support the husband's suggestion of a 4% interest rate for the wife's financial comfort.

The court made detailed orders for the transfer of property and funds between the parties, including specific monetary payments and the transfer of shares and real estate. The orders also provided for the discharge of interim spousal maintenance and the severance of any joint tenancies. Crucially, the court appointed a registrar to sign documents on the wife's behalf should she fail to comply with her obligations, pursuant to section 106A of the *Family Law Act 1975* (Cth). The wife's application and the husband's response were otherwise dismissed.

Orders

Orders of the court

That the husband have leave to proceed in the absence of the wife.

By 4.00pm on 31 January 2018 (or at such other time as the parties may agree in writing), the husband:

(a) Pay to the wife $1.7 million; and

(b) Authorise his solicitors to release to the wife, the sum of $300,000 held on trust pursuant to the orders of this court.

Within 7 days of being presented with the necessary documents to give effect to this order, the wife do all such acts and things and sign any necessary document to:

(a) resign any office she holds in the following companies:

(i) KB Pty Ltd;

(ii) TS Pty Ltd; and

(iii) WS Pty Ltd

(“the companies”)

(b) Relinquish or resign as an appointor of the Mr S Trust;

(d) Assign to the husband any monies standing to her credit in the accounts of the companies and/or the Strahan Trust and the Mr S Trust (“the trusts”) and relinquish any right or entitlement which she may have under the deeds of settlement of the trusts;

(e) Withdraw, at her expense, any and all caveats lodged by her against the titles of the real properties to be retained by the husband in Australia, Hong Kong, Switzerland or Southern Europe; and

(f) Deliver to the husband the keys to the apartment in Switzerland.

Should the wife fail to comply with the terms of paragraph (3) of these orders, pursuant to s 106A of the Family Law Act 1975 (Cth), a registrar of the Family Court of Australia at Adelaide is appointed to sign all such documents in the name of the wife as may be required to give effect to these orders and the registrar shall be satisfied of the default of the wife upon production of an affidavit by the solicitor for the husband confirming such default.

By 4.00pm on 31 January 2018, the husband either in his personal capacity or as a director of the trustee of the Strahan Trust, do all such acts and things and sign all such documents as may be necessary to provide to the wife a transfer of land in registerable form to effect the transfer of the following properties to the wife:

(a) SW Street, Suburb NB;

(b) HC Street, Suburb NB;

(d) HS Street, Suburb AN; and

(e) RC Street, Suburb YK.

Upon the provision by the husband of the documents required of him in paragraph (5) of these orders, the order for interim spousal maintenance made on 24 April 2012 is discharged subject to any arrears that may be outstanding thereunder.

If by 4.00pm on 15 December 2017, the wife has failed to notify the husband of the entity into which she wishes the balance of her interest in SH Pty Ltd to be transferred, the husband be at liberty to arrange such transfer to P1 Limited.

Upon compliance by the husband with all obligations under these orders, all extant orders made by this court are otherwise discharged.

Save as otherwise provided by these orders, each party shall retain and the other relinquish any interest in, any assets in the name of the other party (or in which they have any legal or equitable interest) as at this date, including any interest as an employee pursuant to any superannuation fund.

10.

Any joint tenancy of the parties in any real or personal estate is severed by these orders.

11.

That the wife’s application as amended filed 9 June 2005 and the amended response to the application for final orders filed by the husband on 1 March 2017 are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

The next table shows the husband’s proposal. THE HUSBAND’S PROPOSED ALTERATION OF INTERESTSReal properties from the Strahan Trust $5,340,000The jointly owned Adelaide real property 2,500,000The solicitors’ trust funds 300,000Motor vehicles 575,000SH Pty Ltd 1,013,380Superannuation 72,675Savings 118,644TRF Pty Ltd 834$9,920,533 It will be seen that the proposed transfer includes money that the wife already has and her superannuation. It also ignores what the husband included in the proposed orders as the money that the wife had already received by way of partial property settlement, retention of cash at the separation and the waiving of the entitlements of the husband to recover the costs and experts’ fees. Those matters can all be taken into account in terms of the necessary adjustment. As can be seen, the husband is proposing that the wife retain $9.9 million of the existing assets but he urges the court to take into account that she has had the benefit of $20 million by way of various payments that would now appear no longer to exist. It must not be forgotten however that he has also paid over $1.5 million in spousal maintenance since the interim orders were made leaving aside any money that was used to support Mr S directly and indirectly. But, I must also take into account that he has used significant resources for his own legal fees. Taking into account the overwhelming contribution of the husband but the disparity of the future economic circumstances of the parties, my view is that $9.9 million is not a just and equitable outcome. If the assets as shown in the first table are a true reflection of what currently exists, the wife is receiving something in the vicinity of 20 per cent of what currently exists. When I factor in that she has received something in excess of $20 million, if that were added to what she is being offered by the husband, she would have something in the vicinity of $30 million. However, for the husband to be able to pay that amount of money, one would have to take into account that he had that amount of money in the first place so the net assets of $48 million as shown in the first table would not be a true indication of the division of the parties’ wealth. There is no simple way of resolving this issue however I am satisfied that with the absence of spousal maintenance because of the discharge of the extant interim order, the wife will need funds to live the affluent lifestyle to which she has been accustomed. Counsel for the husband suggested that if the court used a 4 per cent interest consideration, the wife would be very comfortable but there is no evidence before me to enable me to draw that conclusion either as to how the wife would be comfortable or indeed that the 4 per cent interest rate is available. If I took a more conservative approach, but factored in that the wife will have to pay tax for the first time because she will no longer have maintenance, her lifestyle would need to be adjusted immediately.