Temple & Fenwick - [2021] FedCFamC1A 2

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Temple & Fenwick [2021] FedCFamC1A 2

Appeal from: Fenwick & Temple [2021] FamCA 88

Appeal number: NOA 15 of 2021

File number: BRC 13499 of 2017

Judgment of: AINSLIE-WALLACE, ALDRIDGE & BAUMANN JJ

Date of judgment: 8 September 2021

Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal against an Order prescribing sixty (60) days for payment of the settlement sum – Appeal allowed in part – Order made in accordance with Minute of Order received from the parties.

Legislation: Family Law Act 1975 (Cth) s 117B

Cases cited:
Bhatnagar & Riju [2018] FamCAFC 144

Heidari & Ebadi [2020] FamCAFC 316

Number of paragraphs: 9

Date of hearing: 24 August 2021

Place: Brisbane (via video link)

Counsel for the Appellant: Mr Looney QC with Mr Alexander

Solicitor for the Appellant: Evans Brandon Family Lawyers

Counsel for the Respondent: Mr Kearney SC with Mr Drysdale

Solicitor for the Respondent: HopgoodGanim Lawyers
ORDERS

NOA 15 of 2021
BRC 13499 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR TEMPLE

Appellant

AND:
MS FENWICK

Respondent

ORDER MADE BY:

AINSLIE-WALLACE, ALDRIDGE & BAUMANN JJ

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:
(1)The appeal against the decision of a judge of the Family Court of Australia made on 26 February 2021 be allowed in part.
THE COURT FURTHER ORDERS BY CONSENT THAT:
(2)Order 23 made on 26 February 2021 is varied in accordance with the minute of orders prepared and signed by the parties on 24 August 2021. Order 23 be varied as follows:
23The respondent cause the payment of:
(a)$7,830,521 to the applicant to be made as follows:
(i)the sum of $2,000,000 on or before 27 April 2021, noting that such payment has been made;
(ii)the sum of $1,750,000 on or before 25 October 2021;
(iii)the balance (“the relevant balance”) on or before 24 August 2022;

(b)interest on the relevant balance between 25 October 2021 and the date of payment of the relevant balance at the rate referred to in s 117B of the Family Law Act1975 (Cth) to be paid on the date of payment of the relevant balance; and
(c) in the event of non-compliance with Orders 23(a)(ii) or 23(a)(iii) then interest is payable at the rate referred to in s 117B of the Family Law Act 1975 (Cth):
(i) on the sum payable pursuant to Order 23(a)(ii) or such portion of it as is unpaid at 26 October 2021, from 27 April 2021 to the date of payment, and
(ii) on the sum payable pursuant to Order 23(a)(iii) or such portion of it as is unpaid at 25 August 2022, from 27 April 2021 to the date of payment.

(3) Order 24 made on 26 February 2021 is varied in accordance with the minute of orders prepared and signed by the parties on 24 August 2021. Order 24 be varied as follows:
24Paragraphs 3 and 4(b) of the Interim Order…

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 Temple & Fenwick

Details

AGLC: Temple & Fenwick [2021] FedCFamC1A 2
Case: [2021] FedCFamC1A 2
Decision Date

CaseChat Overview and Summary

The appeal in Temple & Fenwick was heard by Ainslie-Wallace, Aldridge, and Baumann JJ of the Federal Circuit and Family Court of Australia. The appeal concerned the final property settlement orders made by a judge of the Family Court of Australia on 26 February 2021. The appeal was brought by Mr. Temple (the husband) against Ms. Fenwick (the wife), and the appeal was heard on 24 August 2021. The parties had reached an agreement in relation to the appeal, seeking orders that the appeal be allowed in part, and proposed a variation to Orders 23 and 24 made on 26 February 2021.

The legal issues before the court were whether there was an error in the trial judge's reasoning regarding the payment of a substantial sum within 60 days and whether the issue of payment of such a sum had been raised with the husband in his evidence. The court was required to decide whether the trial judge had provided adequate reasons for finding that the settlement sum could be paid within 60 days, and whether the issue of payment of a sum of that magnitude had been raised with the husband in his evidence. The court had to consider whether the husband would need to sell assets to pay the sum, which would incur capital gains tax and affect the amount of property to be divided.

The court found that the trial judge had not provided adequate reasons as to how her Honour found that the settlement sum could be paid within 60 days, which is implicit in the order. The court also found that the order should not have been made because the issue of payment of a sum of that magnitude had not been raised with the husband in his evidence. The court found that in order to pay such a sum, other than from income over a longer period, would require the sale of assets, which incur capital gains tax and affect the amount of property to be divided. The court found that the husband did not adduce evidence to substantiate his submission that he required a substantial time to pay, and that the finding that the husband could, through dividend income and liquidation of personal assets, meet a payment of $7,830,521 within 60 days, was not explained. The court found that the sum could only be paid within 60 days if the husband sold some of his income producing assets, which would in turn be subject to capital gains tax and affect the size of the pool. As there was no evidence to that effect, the court found that the asserted errors had been established.

The court allowed the appeal in part and varied the orders as per the agreement of the parties. The husband was required to pay $7,830,521 to the wife in installments, with interest payable on the unpaid balance and in the event of non-compliance. Spousal maintenance was discharged, and the wife was permitted to maintain a caveat on the husband's property to secure payment. The court made no order as to costs.

Orders