Vinge and Vinge - [2013] FCCA 2196

FEDERAL CIRCUIT COURT OF AUSTRALIA

VINGE & VINGE

[2013] FCCA 2196

Catchwords:
FAMILY LAW – Property – long marriage – portion of husband’s unpaid tax debt included as matrimonial debt – circumstances surrounding the debt are relevant pursuant to s.75(2)(o).

Legislation:

Family Law Act 1975, ss.75(2), 79

Kowaliw & Kowaliw (1981) FLC 91-092
Lee Steere v Lee Steere (1998) FLC 91-626
Brown v Green (1999) FLC 92-873
Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
D & D [2003] FamCA 473
AJO & GRO (2005) 33 Fam LR 134
Stanford v Stanford [2012] HCA 52
Bevan v Bevan [2013] FamCAFC 116

Applicant:

MR VINGE

Respondent:

MS VINGE

File Number:

CAC 1117 of 2013

Judgment of:

Judge Kelly

Hearing dates:

21 and 22 October 2013

Date of Last Submission:

22 October 2013

Delivered at:

Adelaide

Delivered on:

19 December 2013

REPRESENTATION

Counsel for the Applicant:

Mr Mater

Solicitors for the Applicant:

Nicholl & Co

Counsel for the Respondent:

Mr Howard

Solicitors for the Respondent:

Farrar Gesini Dunn

ORDERS

In full and final settlement of any claim that either party may have against the other now or at any time in the future for settlement of property pursuant to Part 8 of the Family Law Act 1975 as amended:

The wife pay to the husband the sum of $116,300 (“the payment”) within 42 days of the date of these orders (“the Settlement Date”).
Contemporaneously with the payment referred to in paragraph (1):
(a)the husband do all things necessary to transfer to the wife at her expense all of his interest in the property situate at Property J being the whole of the property contained in Certificate of Title Volume [omitted];
(b)the wife do all things necessary to repay all monies owing to the Commonwealth Bank pursuant to the parties’ home loan and overdraft facility and to discharge Registered Mortgages Numbers [omitted];
(c)the wife do all things necessary to pay the sum of $82,128 to the Australian Taxation Office in discharge of that portion of the husband’s debt for which the parties are deemed jointly responsible;
(d)from the payment received by him pursuant to paragraph (1), the husband forthwith pay the balance outstanding to the Australian Taxation Office in the sum of $93,997.
Thereafter the wife shall retain all debts in her sole name including, but not limited to, the personal loan with the Commonwealth Bank and her HECS debt and indemnify the husband in relation thereto.
Thereafter the husband shall retain all debts in his sole name including, but not limited to, his Commonwealth Bank credit card debt and any further debt owing to the Australian Taxation Office and indemnify the wife in relation thereto.
The husband retain all items referred to in Annexure A attached to these Orders NOTING such items have been delivered or will be delivered to the husband by the parties’ adult son [X].
Thereafter each party shall retain such assets as are currently in their possession for their sole…

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 Vinge and Vinge

Details

AGLC: VINGE & VINGE [2013] FCCA 2196
Case: [2013] FCCA 2196
Decision Date: 19 December 2013

CaseChat Overview and Summary

This matter concerned property settlement orders made by Judge Kelly in the Federal Circuit Court of Australia. The parties, Mr and Mrs Vinge, sought to resolve any claims they might have against each other under Part 8 of the *Family Law Act 1975* (Cth). The orders detailed a comprehensive division of assets and liabilities, including the former matrimonial home, various debts to the Commonwealth Bank and the Australian Taxation Office, and superannuation interests.

The court was required to determine the terms of the final property settlement between the parties. This involved specifying the financial contributions each party would make, the allocation of specific debts and assets, and the division of superannuation entitlements. The orders also addressed the contingency of the wife being unable to secure sufficient funds to meet her obligations, providing for the sale of the former matrimonial home in such an event.

The court's reasoning, as reflected in the orders, was to achieve a full and final settlement of all property claims. This was to be accomplished through a series of reciprocal obligations. The wife was primarily responsible for paying a sum of money to the husband and discharging certain joint debts and her own liabilities, while the husband was to transfer his interest in the former matrimonial home to the wife and pay a portion of his tax debt. The orders also stipulated the division of superannuation interests pursuant to sections 90MT and 90ME of the *Family Law Act 1975* and associated regulations, with specific base amounts and operative times. Each party was to retain other assets and debts in their sole possession, with mutual indemnities provided.

The final orders stipulated that the wife was to pay the husband $116,300 within 42 days. Contemporaneously, the husband was to transfer his interest in Property J to the wife, and the wife was to repay the Commonwealth Bank loan and overdraft, and discharge mortgages. The wife was also to pay $82,128 to the Australian Taxation Office for a joint debt, and the husband was to pay $93,997 to the Australian Taxation Office for his outstanding debt from the payment received. The orders further detailed the retention of other debts and assets by each party, the division of superannuation, and provisions for the sale of the former matrimonial home if the wife could not secure the necessary funds. A Registrar was appointed to execute documents if either party failed to comply, and all proceedings were dismissed as finalised.

Orders

Orders of the court

In full and final settlement of any claim that either party may have against the other now or at any time in the future for settlement of property pursuant to Part 8 of the Family Law Act 1975 as amended:

The wife pay to the husband the sum of $116,300 (“the payment”) within 42 days of the date of these orders (“the Settlement Date”).

Contemporaneously with the payment referred to in paragraph (1):

(a) the husband do all things necessary to transfer to the wife at her expense all of his interest in the property situate at Property J being the whole of the property contained in Certificate of Title Volume [omitted];

(b) the wife do all things necessary to repay all monies owing to the Commonwealth Bank pursuant to the parties’ home loan and overdraft facility and to discharge Registered Mortgages Numbers [omitted];

(c) the wife do all things necessary to pay the sum of $82,128 to the Australian Taxation Office in discharge of that portion of the husband’s debt for which the parties are deemed jointly responsible;

(d) from the payment received by him pursuant to paragraph (1), the husband forthwith pay the balance outstanding to the Australian Taxation Office in the sum of $93,997.

Thereafter the wife shall retain all debts in her sole name including, but not limited to, the personal loan with the Commonwealth Bank and her HECS debt and indemnify the husband in relation thereto.

Thereafter the husband shall retain all debts in his sole name including, but not limited to, his Commonwealth Bank credit card debt and any further debt owing to the Australian Taxation Office and indemnify the wife in relation thereto.

The husband retain all items referred to in Annexure A attached to these Orders NOTING such items have been delivered or will be delivered to the husband by the parties’ adult son [X].

Thereafter each party shall retain such assets as are currently in their possession for their sole use and enjoyment absolutely, including motor vehicles, any bank accounts or savings, household furnishings and personal effects.

Pursuant to s.90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Ms Vinge Member No [omitted] from her interest in the [P], Mr Vinge is entitled to be paid by the Trustee of the [P] the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $99,034.50 and there is a corresponding reduction in the entitlement Ms Vinge would have had but for these Orders.

Paragraph (7) hereof has effect from the operative time.

The operative time for the purposes of paragraph (8) hereof is four (4) business days after service of this Order on the Trustees.

10.

The solicitors for the husband serve a copy of this Order upon the Trustees of the [P] within fourteen (14) days.

11.

Pursuant to s.90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Ms Vinge Member No [omitted] from her interest in the [A] Super Scheme, Mr Vinge is entitled to be paid by the Trustee of the [A] Super Scheme the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $4,804.00 and there is a corresponding reduction in the entitlement Ms Vinge would have had but for these Orders.

12.

Paragraph (11) hereof has effect from the operative time.

13.

The operative time for the purposes of paragraph (12) hereof is four (4) business days after service of this Order on the Trustees.

14.

The solicitors for the husband serve a copy of this Order upon the Trustees of [A] Super Scheme within fourteen (14) days.

15.

In the event the wife is unable to borrow sufficient funds to comply with paragraphs (1) & (2) of these Orders then the parties thereafter shall forthwith do all things and execute all documents necessary to place the former matrimonial home on the market for sale at a price and with an agent to be agreed between them.

16.

Upon settlement, the parties shall cause the proceeds of sale to be distributed as follows:

(a) to pay agent’s commissions and other proper and usual expenses of sale;

(b) to discharge all debts owing to the Commonwealth Bank of Australia;

(c) to discharge that portion of the debt owing to the Australian Taxation Office deemed a joint matrimonial debt in the sum of $82,128;

(d) to discharge the balance of the husband’s debt owing to the Australian Taxation Office in the sum of $93,997;

(e) to pay to the husband an amount calculated in accordance with the husband retaining total assets equivalent to 50% of the net matrimonial asset pool, less the sum of $93,997 already paid out to the Australian Taxation Office on his behalf (“the amended settlement sum”);

(f) the balance then remaining to the wife.

17.

Each party do all such things and sign all documents necessary to give effect to these orders.

18.

If either party fails to take a necessary step in accordance with these orders a Registrar of the Federal Circuit Court, Adelaide Registry, is appointed and empowered, pursuant to s.106A of the Family Law Act 1975 to execute all documents and perform all acts necessary to implement the terms of these orders.

19.

All proceedings are dismissed as finalised.

20.

Liberty to either party to speak to the Minutes.

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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