VARNHAM & VARNHAM - [2014] FamCA 765

FAMILY COURT OF AUSTRALIA

VARNHAM & VARNHAM

[2014] FamCA 765

FAMILY LAW – PROPERTY – Interim Orders – where parties required to withdraw monies from superannuation fund – where husband seeks distribution of pension funds in his favour – where wife opposes husband’s application and seeks to preserve the property of the parties – no evidence before the Court as to how the husband intends to use funds – orders made for the funds to be placed in joint account and used to meet costs of valuations.

FAMILY LAW – PRACTICE AND PROCEDURE – Valuations – where husband and wife have undertaken separate valuations – significant disparity in valuation – whether parties bound by previous order appointing a single expert – where that order was conditional upon a timeframe – whether appropriate to now appoint a single expert – orders made for the respective experts to confer.

FAMILY LAW – PRACTICE AND PROCEDURE – husband seeks the wife be removed as a director – wife opposes removal – where no evidence that the wife has attempted to frustrate the running of the business – implications for the business if wife is removed as a director – inappropriate to remove purely as a matter of convenience to the husband – where pathways available to the husband under the Corporations Act 2001 (Cth) – no orders made for the removal of the wife.

Corporations Act 2001 (Cth) s 290
Family Law Act 1975 (Cth) ss 79, 80
Family Law Rules 2004 (Cth) rr 15.68, 15.69

Bell & Bell [2000] FamCA 1301
Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48
Re Ronald Neville McGorm Ex Parte; the Co-operative Building Society of South Australia [1989] FCA 87
Strahan & Strahan (Interim Property Orders) (2009) 42 Fam LR 203

APPLICANT:

Ms Varnham

RESPONDENT:

Mr Varnham

FILE NUMBER:

ADC

1970

2013

DATE DELIVERED:

15 September 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

9 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lewis

SOLICITOR FOR THE APPLICANT:

Scales and Partners

COUNSEL FOR THE RESPONDENT:

Mr McGinn

SOLICITOR FOR THE RESPONDENT:

Angela Ferdinandy

ORDERS

upon noting:-

The wife’s assertion that she has provided the disclosure as requested in paragraph 6 of the Amended Response filed 15 August 2014

and upon further noting:-

That the wife will apply all rental payments received from the tenant in respect of the investment property at I Street, Town B to the Town B mortgage and in the event that there is a surplus of income over expenses for the said investment property the wife will quarantine such surplus pending agreement of the parties or order of the Court

by consent it is ordered:-

That the wife be at liberty to sell the Alfa Romeo and Ford motor vehicles PROVIDED THAT:-
(a)The value thereof for the purpose of these proceedings be fixed in the sum of $12,000 and $3,500 respectively, or such greater sum as shall represent the trade-in value thereof;

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 VARNHAM & VARNHAM

Details

AGLC: VARNHAM & VARNHAM [2014] FamCA 765
Case: [2014] FamCA 765
Decision Date: 15 September 2014

CaseChat Overview and Summary

In the matter of Varnham & Varnham, Berman J considered applications by both the husband and wife concerning property division and procedural matters. The husband sought a distribution of pension funds in his favour and the removal of the wife as a director of a company. The wife opposed the husband's application regarding the pension funds and sought to preserve the parties' assets, also opposing her removal as director.

The court was required to determine several legal issues. These included how to manage and distribute funds from a superannuation fund, particularly a pension payment intended for the husband, given the lack of evidence regarding its intended use. The court also had to consider the appointment of a single expert valuer for properties, given the significant disparity in valuations already undertaken by separate experts and a prior conditional order for a single expert. Finally, the court was asked to decide whether to remove the wife as a director of a company, in circumstances where no evidence suggested she had frustrated the business's operations.

Berman J reasoned that the pension funds should be placed in a joint account and used to meet the costs of valuations, rather than being immediately distributed to the husband. Regarding the property valuations, the court noted a previous order for a single expert was conditional on a timeframe that had passed, and instead ordered the parties' respective experts to confer and prepare a joint memorandum. On the issue of the wife's directorship, the court found no evidence of her attempting to frustrate the business and considered it inappropriate to remove her purely for the husband's convenience, noting alternative pathways available under the Corporations Act 2001 (Cth).

The court made several orders by consent, including liberty for the wife to sell two motor vehicles at specified values, and for the parties to arrange for C Accountants to manage the D Superannuation Fund. Injunctions were granted restraining both parties from interfering with the superannuation fund's assets or making sole decisions regarding its management. The parties were ordered to instruct specific individuals to confer on property valuations, with responsibility for fees allocated. The court also ordered an inspection of the husband's collection and directed C Accountants to assess rent due and appoint a valuer for a commercial rent and compliance status of the superannuation fund. A specific sum from the husband's pension was to be held in a joint account to pay the costs of C Accountants. Finally, the interim proceedings were dismissed.

Orders

Orders of the court

upon noting:-

The wife’s assertion that she has provided the disclosure as requested in paragraph 6 of the Amended Response filed 15 August 2014

and upon further noting:-

by consent it is ordered:-

That the wife be at liberty to sell the Alfa Romeo and Ford motor vehicles PROVIDED THAT:-

(a) The value thereof for the purpose of these proceedings be fixed in the sum of $12,000 and $3,500 respectively, or such greater sum as shall represent the trade-in value thereof;

(b) The value and liability relating to any new vehicle be excluded from the asset pool.

That the wife do within 14 days provide disclosure of her Costs Advice.

That the parties do all things and sign all documents to cause C Accountants to undertake the management and operation of the D Superannuation Fund pending the making of final orders.

That the parties be restrained and an injunction is granted restraining each of them from:-

(a) Transferring, assigning or disposing of, dealing with or in any way interfering with the assets of the D Superannuation Fund;

(b) Making any sole decision in relation to the management or investment of the assets of the superannuation fund.

IT IS ORDERED:-

The parties do instruct Ms E and the wife do instruct Mr F to confer in relation to their valuations of the properties situate at G Street, Suburb H and J Street, Suburb K and that following their conference they shall prepare a joint memorandum setting out the areas of agreement and the basis and parameters of any disagreement as to value PROVIDED that the husband shall be responsible for the fees incurred by Ms E and the wife shall be solely responsible for the fees incurred by Mr F.

The husband shall permit the wife, her solicitor and/or such other person as the wife may nominate to inspect the husband’s type L goods collection and accessories as set out in Schedule B to the affidavit of the wife filed 5 June 2013, with such inspection to occur at such place as may be nominated by the husband or in the alternative, at the premises of the husband’s solicitors.

That the parties do instruct C Accountants to undertake an assessment and calculation of the rent due or owing or any adjustment in respect of same by D Pty Ltd in favour of D Superannuation Fund.

That the parties do instruct C Accountants to appoint an expert licensed land valuer to undertake a valuation of a fair and commercial rent that should be paid by D Pty Ltd in favour of the D Superannuation Fund in respect of the premises at J Street, Suburb K and to provide a report both as to rent and the compliance status of the said fund.

That the parties will do all things necessary and sign all such documents as may be required to cause the sum of FORTY ONE THOUSAND NINE HUNDRED AND THIRTY NINE DOLLARS ($41,939) being the payment from D Superannuation Fund by way of a pension on behalf of the husband to be invested (or remain so invested) in a joint account with both parties to sign pending further order or agreement of the parties PROVIDED THAT the said money shall be used to pay the costs and disbursements due and owing to C Accountants as may be incurred and supported by invoice rendered from time to time, such invoice to be paid within 7 days of it having been received.

10.

That the interim proceedings do stand dismissed.

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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