FAMILY COURT OF AUSTRALIA
| sutton & sutton and anor | [2012] FamCA 454 |
| FAMILY LAW ─ PROPERTY SETTLEMENT ─ Whether, if undisturbed, the orders of the Local Court made in 1997 preclude the making of orders for settlement of property pursuant to s 79 of the Act ─ Whether, if in order to enliven jurisdiction pursuant to s 79 of the Act, the orders of the Local Court made in 1997 must first be set aside, such orders should be set aside pursuant to s 79A of the Act ─ Whether, if the orders of the Local Court made in 1997 are not set aside, the wife should be granted an extension of time to appeal against the 1997 orders pursuant to s 96 of the Act, and, if such leave be granted, whether the wife’s appeal should succeed ─ Whether, if jurisdiction pursuant to s 79 of the Act is enlivened, the transfer by the husband to the second respondent of a one half interest in the property at Suburb A if undisturbed, would defeat the wife’s claim pursuant to s 79 of the Act and should thus be set aside pursuant to s106B of the Act ─ Whether if jurisdiction pursuant to s 79 is enlivened, the orders for settlement of the property of the parties which are just and equitable |
| Acts Interpretation Act 1901 (Cth) s 15AA Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4(ca), 8(1)(a), 75(2), 79, 79A, 93A, 106B |
| Allesch v Maunz (2000) 203 CLR 172 Bevan v Bevan (1995) FLC 92-600 Brett-Hall v Brett-Hall (2006) FLC 93-276 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 CDJ v VAJ (1998) 197 CLR 172 Clauson and Clauson (1995) FLC 92-595 Coghlan & Coghlan (2005) FLC 93-220 Gabel and Yardley (2008) FLC 93-386 Gallo v Dawson (1990) 93 ALR 479 Gollings v Scott (2007) FLC 93-319 Harris v Caladine (1991) 172 CLR 84 Hickey and Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378 Jarrott & Jarrott [2012] FamCAFC 29 Jones v Dunkel (1959) 101 CLR 298 Kwon & Lee (2006) FLC 93-287 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 Mallett v Mallett (1984) 156 CLR 605 Mullane v Mullane (1983) 158 CLR 436 Norbis v Norbis (1986) 161 CLR 513 Pettitt v Dunkley (1971) 1 NSWLR 376 Pflugradt & Pflugradt (1981) FLC 91-052 Rosati v Rosati (1998) FLC 85-043 SCVG & KLD [2011] FamCAFC 100 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Spencer v The Commonwealth of Australia (2010) 241 CLR 118 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 The Commissioner of Taxation of the Commonwealth of Australia vSt Helen’s Farm (ACT) Pty Ltd (1981) 146 CLR 336 Waters & Waters (1981) FLC 91-019 WJ Munro v… |
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- sutton & sutton and anor [2012] FamCA 454
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- [2012] FamCA 454
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CaseChat Overview and Summary
Coleman J reasoned that to enliven the jurisdiction of the Family Court, the previous Local Court orders needed to be set aside or appealed. The court determined that the wife was entitled to an extension of time to appeal the Local Court orders, and that the appeal should be allowed, with the previous orders being set aside or discharged. Consequently, the court made extensive orders regarding the division of assets, including the sale of a property and a boat, the allocation of proceeds from these sales, the husband's sole liability for certain debts, and the division of specific company entitlements. The court also ordered the husband to pay interim spousal maintenance to the wife.
The court ordered the dismissal of the wife's application for orders under the *Child Support (Assessment) Act 1989* (Cth), discharged all prior financial orders, and dismissed all outstanding applications and cross-applications, save in relation to costs, which were reserved.
Orders
Orders of the court
1.
That to the extent necessary to enliven the jurisdiction of the Court pursuant to Part VIII of the Family Law Act 1975 (Cth), the orders of the Local Court at … made on 20 March 1997 and engrossed on 24 March 1997 be set aside pursuant to s 79A.
2.
That, to the extent necessary to enliven the jurisdiction of the Court pursuant to Part VIII of the Family Law Act 1975 (Cth), and in the alternative to order 1 hereof, the wife be granted an extension of time to appeal against the orders of the Local Court at … made on 20 March 1997 and engrossed on 24 March 1997 pursuant to s 96 of the said Act, and such appeal be allowed, and the said orders be set aside or discharged.
3.
That the Husband do all acts and things and execute all documents necessary to cause the property known as and situate at Property 1, C Street, Suburb N for the best price reasonably obtainable at or above the sum of $1,500,000, or such other price as the parties agree, and upon sale cause the proceeds to be applied as follows:
(i) costs of sale including agent’s commission and costs of the conveyance;
(ii) water and council rates adjustments;
(iii) to discharge the mortgage over Property 1, C Street, Suburb N in the approximate sum of $660,425;
(iv) to pay the balance of the proceeds of sale to the wife as to 94% and the husband as to 6%.
4.
That pending completion of the sale of Property 1, C Street, Suburb N, the husband pay all mortgage instalments, council, and water rates with respect to the said property.
5.
That pending completion of the sale of Property 1, C Street, Suburb N, the husband pay all mortgage instalments, council, and water rates with respect to the property at Property 2, C Street, Suburb N.
6.
That the husband be solely liable for and indemnify the wife in respect of the following:
(i) the loan from Mr P to the husband;
(ii) the loan from Ms K Sutton and Mr H Sutton to the husband;
(iii) any loan from the second respondent to the husband; and
(iv) the husband’s credit card debts.
7.
That the husband forthwith do all acts and things and sign all documents necessary to list the Type D Boat for sale by public auction with such auctioneer as agreed within 14 days of these Orders between husband and wife and failing agreement with an auctioneer nominated in writing by Mr M (valuer) on the following terms:
(i) the auction shall take place on the date nominated by the auctioneer;
(ii) the reserve price for the auction shall be $405,000;
(iii) each party shall be at liberty to bid at any auction;
(iv) in the event any bid at or above $405,000 is received at or after the auction, the husband shall accept the offer;
(v) if the vessel does not sell at the first auction or within 21 days thereafter, it shall be listed for sale by further public auction on a date nominated by the same auctioneer and at that subsequent auction there shall be no reserve price; and
(vi) on sale, the proceeds be applied as follows:
a. auction expenses (including advertising) and commission on sale;
b. reimburse the husband for any mooring costs incurred from 23 March 2012 to date of transfer of ownership of the boat;
c. reimburse the husband for any cleaning and maintenance costs incurred for the boat from 23 March 2012 to date of transfer of ownership of the boat;
d. the balance thereafter as to:
i. 60% to the wife; and
ii. 40% to the husband.
8.
That in respect of the husband’s entitlements as at 31 December 2011 in the Company E Profit Share (“pre-2012 PS”) as described in paragraph C.1 of the report dated 14 March 2012 of Mr S (it being NOTED any further PS allocations to the husband subsequent to 31 December 2011 are to be retained solely by him):
(i) the husband shall retain the pre-2012 PS on the terms and conditions set out herein and not otherwise deal with it;
(ii) in the event that the husband becomes entitled to and does in fact receive any amount or amounts referrable to his pre-2012 PS allocation, then he shall upon receipt of same (or any part thereof) after payment of all relevant tax by him pay in each case 50% of same to the wife and shall retain 50% of same for himself; and
(iii) in the event that the husband receives notice that he will receive any part of his pre-2012 PS entitlement, he shall forthwith provide the wife notice in writing of same together with copies of all documents in respect of such matters and any calculations done of the amount received by the husband and/or the taxation applicable to same.
9.
That in respect of the husband’s entitlements as at 31 December 2011 in the Company E Share Plan (“pre-2012 SP”) as described in paragraph D.1 of the report dated 14 March 2012 of Mr S (it being NOTED any further SP allocations to the husband subsequent to 31 December 2011 are to be retained solely by him):
(i) the husband shall retain the pre-2012 SP allocation on the terms and conditions set out herein and not otherwise deal with it;
(ii) in the event that the husband becomes entitled to and does in fact receive any amount or amounts referrable to his pre-2012 SP allocation, then he shall upon receipt of same (or any part thereof) after payment of all relevant tax by him pay in each case 50% of same to the wife and shall retain 50% of same for himself; and
(iii) in the event that the husband receives notice that he will receive any part of his pre-2012 SP entitlement, he shall forthwith provide the wife notice in writing of same together with copies of all documents in respect of such matters and any calculations done of the amount received by the husband and/or the taxation applicable to same.
10.
That the husband pay the wife the sum of $3,000 per calendar month by way of interim spousal maintenance until:
(i) the 30 June 2013, or
(ii) the receipt by the wife of her entitlement pursuant to order 7 hereof, whichever shall first occur.
11.
That the wife’s application for orders pursuant to the Child Support (Assessment) Act 1989 (Cth) be dismissed.
12.
That all prior existing financial orders be discharged.
13.
That, save in relation to costs, all outstanding applications and cross applications be dismissed.
14.
That costs be reserved.
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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