Tanner & Tanner (No. 2) - [2008] FamCA 286

FAMILY COURT OF AUSTRALIA

TANNER & TANNER (NO. 2)

[2008] FamCA 286

FAMILY LAW - PROPERTY - wife psychiatrically unwell - husband’s contributions prior to marriage and after separation.

FAMILY LAW - SPOUSAL MAINTENANCE - effect of property orders on capacity to pay maintenance.

Family Law Act 1975 (Cth) ss 72, 79(a) to (g), 74, 75(2),(3), 90MT(1a), (4)
Family Law (Superannuation) Regulations 2001

Bevan v Bevan (1995) FLC 92-600
Mitchell v Mitchell (1995) FLC 92-601

HUSBAND

Mr Tanner

WIFE:

Mrs Tanner (by her Case Guardian Mrs Smith)

FILE NUMBER:

MLF

1888

2005

DATE DELIVERED:

24 April, 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J.

HEARING DATE:

3, 4 March, 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND:

Mr. Robinson

SOLICITOR FOR THE HUSBAND:

Kennedy Wisewoulds

COUNSEL FOR THE WIFE:

Mr. Marchetti

SOLICITOR FOR THE WIFE:

Forte Family Lawyers

Orders

That on or before 24 June, 2008 the husband pay the wife the sum of $128,000 (“the payment”).

That pending the payment the husband hold his interest in the real property situated at R in the State of Victoria being the whole of the land more particularly described in Certificate of Title, volume … folio … (“the real property”) on trust pursuant to these orders.
That IT IS DECLARED that as and from the date of payment the wife has no interest whatsoever in the real property.

That in default of the payment on or before 24 June, 2008 the real property be sold altogether out of court (“the sale”) and the husband forthwith do all acts and things and sign all necessary documents to effect the sale of the real property and by way of consequential arrangements that shall be made for the purpose of effecting the sale :
(a)the listing price for the real property shall be as agreed between the parties and if there is no agreement shall be as advised by a valuer (who is also a practising real estate agent) appointed by the President of the Victorian Division of the Australian Property Institute;
(b)the real property shall be listed for sale by private treaty by an agent agreed to by the parties and if there is no agreement with the agent nominated to advise the value pursuant to the preceding sub-paragraph;
(c)in the event the real property has not been sold within three months of the date of default of the payment, the husband shall make all such arrangements and do all such acts and sign all such documents to procure a sale by public auction of the real property without reserve, such auction to take place within a further period of three months by an agent to be agreed, and failing agreement to be nominated by the wife; and
(d)the husband have the conduct of the sale.

That upon completion of the sale the proceeds of the sale shall be applied as follows :
(a)first, to pay all costs, commissions and expenses of the sale and to pay any council and water…

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 Tanner & Tanner (No. 2)

Details

AGLC: Tanner & Tanner (No. 2) [2008] FamCA 286
Case: [2008] FamCA 286
Decision Date: 24 April 2008

CaseChat Overview and Summary

In *Tanner & Tanner (No. 2)*, Brown J of the Family Court of Australia considered property settlement and spousal maintenance applications between a husband and wife. The wife was psychiatrically unwell, and the proceedings involved the husband's contributions both prior to the marriage and after separation, as well as the impact of property orders on the husband's capacity to pay spousal maintenance.

The court was required to determine the division of the parties' property, including the allocation of a sum of money to the wife from the husband and the treatment of the parties' interests in real property and superannuation. Additionally, the court had to consider whether to grant the wife's application for spousal maintenance, taking into account the effect of any property orders on the husband's financial position.

The court ordered the husband to pay the wife $128,000 by a specified date, with provisions for the sale of the real property in default of payment. The proceeds of any sale were to be applied first to sale costs, then to discharge the mortgage, followed by the payment to the wife, and finally the balance to the husband. The husband was granted sole occupation of the real property pending payment or sale, with responsibility for outgoings and mortgage repayments. The court also allocated a base amount of $101,986 from the husband's superannuation interest to the wife, with further provisions for splittable payments from the fund, and imposed restraints on the husband regarding his superannuation interest to ensure the wife's entitlement. The wife's application for spousal maintenance was dismissed, and all other extant property applications were dismissed.

Orders

Orders of the court

That on or before 24 June, 2008 the husband pay the wife the sum of $128,000 (“the payment”).

That pending the payment the husband hold his interest in the real property situated at R in the State of Victoria being the whole of the land more particularly described in Certificate of Title, volume … folio … (“the real property”) on trust pursuant to these orders.

That IT IS DECLARED that as and from the date of payment the wife has no interest whatsoever in the real property.

That in default of the payment on or before 24 June, 2008 the real property be sold altogether out of court (“the sale”) and the husband forthwith do all acts and things and sign all necessary documents to effect the sale of the real property and by way of consequential arrangements that shall be made for the purpose of effecting the sale :

(a) the listing price for the real property shall be as agreed between the parties and if there is no agreement shall be as advised by a valuer (who is also a practising real estate agent) appointed by the President of the Victorian Division of the Australian Property Institute;

(b) the real property shall be listed for sale by private treaty by an agent agreed to by the parties and if there is no agreement with the agent nominated to advise the value pursuant to the preceding sub-paragraph;

(c) in the event the real property has not been sold within three months of the date of default of the payment, the husband shall make all such arrangements and do all such acts and sign all such documents to procure a sale by public auction of the real property without reserve, such auction to take place within a further period of three months by an agent to be agreed, and failing agreement to be nominated by the wife; and

(d) the husband have the conduct of the sale.

That upon completion of the sale the proceeds of the sale shall be applied as follows :

(a) first, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding on the real property;

(b) second, to discharge the mortgage encumbering the real property;

(b) third, the sum of $128,000, together with compound interest thereon at the rate of 11.5% per annum adjusted monthly from the due date to the date of payment, to the wife;

That pending the payment or completion of the sale :

(a) the husband have the sole right to occupy the real property and during such right of occupation he pay :

(i) all council rates and water charges and like apportionable outgoings of the real property as they fall due;

(ii) all household building and content insurance premiums as they fall due; and

(iii) all repayments in respect of the mortgage secured on the real property;

(b) the husband holds his interest in the real property upon trust pursuant to these orders; and

(c) the husband not encumber the real property without the consent in writing of the wife, save that he may further encumber it for the sole purpose of borrowing funds to pay to the wife pursuant to the provisions of paragraph (1) hereof.

That the court allocate, as required by s.90MT(4) of the Family Law Act 1975, a base amount of $101,986 to the wife out of the husband’s interest in (account no.801176197) being a superannuation plan with Macquarie ADF Super/Rollover Plan (“the fund”).

That pursuant to s.90MT(1)(a) of the Family Law Act 1975, whenever the trustee of the fund (“the trustee”) makes a splittable payment out of the husband’s interest in the fund, the trustee shall :

(a) pay to the wife or her administrators, executors, beneficiaries, heirs or assignees her entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

(b) make a corresponding reduction in the entitlement the husband would have had in the fund but for these orders.

That paragraph (7) hereof have effect from the operative date, which is four business days after service of the sealed orders upon the trustee.

10.

That the trustee of the fund do all such acts and things and sign all such documents as may be necessary so that in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the trustee can calculate the entitlement of and make payment to the wife in accordance with paragraph (7) hereof.

11.

That the wife do all such acts and things necessary, including but not limited to exercising her request pursuant to Rule 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer or the transferable benefits out of the husband’s interest in the fund to a fund of the wife’s choosing in accordance with Rule 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

12.

That pursuant to Rule 14F of the Family Law (superannuation) Regulations 2001, any payments from the husband’s superannuation interest made after the trustee has rolled over or transferred the transferable benefits to a fund of the wife’s choosing, are not splittable payments.

13.

`That, having been accorded procedural fairness in relation to the making of these orders, these orders shall bind the trustee of the fund.

14.

That until the happening of any of :

(a) the establishment of a separate account in the name of the wife in the fund;

(b) the transferor rolling over into another superannuation fund the payment split created by paragraph (7) herein;

(d) the wife executing a waiver of rights within the meaning of s.90MZA of the Family Law Act 1097 in relation to the payment split created by paragraph (7) herein;

the husband be and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interest in the fund a “not splittable payment” within the meaning of regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 and the trustee of the fund give effect to this order.

15.

That in the event a party refuses or neglects to comply with a provision of these orders :

(a) the registrar of the Family Court of Australia in Melbourne is hereby appointed to execute all deeds and documents in the name of the defaulting party, and do all acts and things necessary to give validity and operation to these orders; and

(b) the party in default is ordered to pay any and all foreseeable damages to the other party caused by the default; and

(c) the party in default is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this order and proving his or her damages.

16.

That it shall be sufficient authority for the registrar to act pursuant to paragraph (15) hereof to have before him or her an affidavit sworn by the solicitor for a party, filed, and served on the other party, in which the solicitor deposes that the other party has refused or neglected to comply with a provision of this order and detailing the provision, the acts undertaken to have him/her comply and his/her response (or lack of a response).

17.

That unless otherwise specified in these orders :

(a) each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof; insurance policies are deemed to be in the possession of the beneficiary thereof; superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for the payment out of such entitlements; and the chattels in the real property are deemed to be in the possession of the husband;

(b) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

18.

That paragraphs (2) to (5) of the orders made herein on 31 May, 2006 be discharged as and from this date.

19.

That the wife’s application for spousal maintenance is dismissed.

20.

That all extant property applications be otherwise dismissed.

21.

That the property applications be removed from the List of matters awaiting finalisation.

22.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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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