VMC & LVC - [2005] FMCAfam 348

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VMC & LVC

[2005] FMCAfam 348

FAMILY LAW – Property – long marriage – where husband alleges parties entered into informal property agreement – informal agreement does not establish an estoppel or oust the courts jurisdiction – agreement not established – nor did wife act so as to allow husband to maintain belief there was agreement – superannuation – nature of contributions towards superannuation discussed – where at separation a non–employee spouse has contributed to the capital sum held in superannuation, and the fund continues to grow, this contribution continues after separation, albeit in most circumstances to a lesser degree than pre–separation – there is no presumption of equality irrespective of the length of the union.

Family Law Act 1975, ss.74, 75, 79, 87
Child Support (Assessment) Act 1989 (Cth)

In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335

In the Marriage of Clauson (1995) FLC 92-595
Russell v Russell (1999) FLC 92-877
Woodcock v Woodcock (1997) FLC 92-739

Burgoyne (1978) FLC 90-467
In the Marriage of Dupont (No.3) (1987) FLC 91-103
Candlish & Pratt (1980) FLC 90-123
Coghlan [2005] FamCA 429
Hickey and Hickey and AG for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Biltoft (1995) FLC 92-614
Chorn & Hopkins (2004) FLC 93-204
Farmer & Bramley (2000) FLC 93-060
Querasimu (1999) FamCA 1314
Parshen v Parshen (1996) FLC 92-720
Figgins (2002) FLC 93-122
In theMarriage of Rainbird (1977) FLC 90-256
Gosper (1987) FLC 91-818
Kessey (1994) FLC 92-495
Pellegrino (1997) FLC 92–789
Pierce v Pierce (1999) FLC 92-844
Hauff (1986) FLC 91-747
Wilkinson [2005] FamCA 430
Tomassetti (2000) FLC 93-023
Mallet (1984) 156 CLR 605

Applicant:

VMC

Respondent:

LVC

File Number:

PAM2609 of 2004

Judgment of:

Ryan FM

Hearing date:

30 May 2005

Date of Last Submission:

20 June 2005

Delivered at:

Parramatta

Delivered on:

11 July 2005

REPRESENTATION

Counsel for the Applicant:

Mr P Campton

Solicitors for the Applicant:

Matthews Folbigg

Counsel for the Respondent:

Mr M. Twigg

Solicitors for the Respondent:

Adrian Twigg & Co.

ORDERS

Within three months of the date of these orders the husband shall pay to the wife the sum of two hundred and seventy-nine thousand four hundred and twenty five dollars ($279,425).
Simultaneously upon compliance by the husband with Order (1) the wife shall do all acts and execute all documents as are necessary to transfer to the husband the whole of her right, title and interest in the property situate at and known as “Crofton”, Conimbla in the state of New South Wales.
Simultaneously, upon compliance by the wife with Order (2), the husband shall give the wife a discharge of mortgage in relation to the Westpac mortgage secured against “Crofton” or, alternatively, a release from Westpac Bank in relation to her liability pursuant to the mortgage in registrable form.
In the event the husband fails to comply with Orders (1) and (3) the parties do all such acts…

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 VMC & LVC

Details

AGLC: VMC & LVC [2005] FMCAfam 348
Case: [2005] FMCAfam 348
Decision Date: 11 July 2005

CaseChat Overview and Summary

In the matter of VMC & LVC, the court was tasked with resolving financial disputes arising from the matrimonial breakdown of the parties. The husband, VMC, and the wife, LVC, were in disagreement over the division of assets and liabilities, including a property known as “Crofton” located in Conimbla, New South Wales, and their respective interests in Integrated Investment Group (IIG) and the husband’s membership of the Westpac Staff Superannuation Fund. The Federal Circuit Court was called upon to determine the distribution of these assets, along with other financial obligations between the parties.

The primary legal issues revolved around the equitable distribution of the matrimonial property, the calculation and allocation of superannuation interests, and the enforcement mechanisms to ensure compliance with the court's orders. The court had to consider the relevant statutory provisions under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001. It also needed to ensure that the orders were practical and enforceable, taking into account the financial circumstances of both parties.

The court meticulously analyzed the evidence and submissions from both parties and concluded that the husband should pay the wife $279,425 within three months. In exchange, the wife was to transfer her interest in the property "Crofton" to the husband, subject to his discharging or releasing the mortgage held by Westpac Bank. If the husband failed to meet his obligations, the property was to be sold by private treaty or public auction. The proceeds of the sale were to be allocated towards paying outstanding costs and taxes, with the remaining balance to be distributed between the parties. Additionally, the court ordered that the wife receive a base amount from the husband’s superannuation fund, which was to be transferred to a fund of her choosing, with subsequent payments to her not being subject to further division.

The final orders included detailed provisions for the transfer of assets, the discharge of mortgages, the sale of the property if necessary, the allocation of sale proceeds, and the distribution of superannuation entitlements. These orders aimed to ensure a fair and enforceable division of the parties' assets and liabilities, reflecting the court’s consideration of the unique circumstances of the case.

Orders

Orders of the court

Within three months of the date of these orders the husband shall pay to the wife the sum of two hundred and seventy-nine thousand four hundred and twenty five dollars ($279,425).

Simultaneously upon compliance by the husband with Order (1) the wife shall do all acts and execute all documents as are necessary to transfer to the husband the whole of her right, title and interest in the property situate at and known as “Crofton”, Conimbla in the state of New South Wales.

Simultaneously, upon compliance by the wife with Order (2), the husband shall give the wife a discharge of mortgage in relation to the Westpac mortgage secured against “Crofton” or, alternatively, a release from Westpac Bank in relation to her liability pursuant to the mortgage in registrable form.

In the event the husband fails to comply with Orders (1) and (3) the parties do all such acts and execute all such documents as may be required to effect a sale of the property situate and known as “Crofton”, Conimbla in the state of New South Wales to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.

Upon the completion of the sale proceeds of the sale be applied as follows:

(a) To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the matrimonial home.

(b) An amount sufficient to pay any capital gains tax liability imposed on either party. In this regard the parties shall jointly retain an accountant who shall calculate the capital gains tax payable (if any) in relation to the sale. The amount calculated shall be retained in the husband’s solicitor’s trust account or controlled money account until each party has been assessed by the ATO for their personal taxation in the relevant tax year. The amount assessed shall be released by the husband’s solicitor to those parties liable to pay CGT. Any balance remaining shall be distributed 60 per cent to the husband and 40 per cent to the wife.

(d) Balance then remaining to the husband from which the husband shall immediately pay to the wife the sum of $47,876.

In the event Crofton has not been sold three (3) months from the date Order (4) becomes operative the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction of the property upon the following terms:

(a) The auctioneer shall be a real estate agent;

(b) The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer.

Each party has the right to bid at the auction.

Upon payment to the wife of the monies due pursuant to Order (1) the wife shall simultaneously transfer to the husband all of her right title and interest in any jointly held shares in IIG (Integrated Investment Group).

Pursuant to s.90MT(4) of the Family Law Act 1975 in respect of the husband’s membership of Westpac Staff Superannuation Fund VMC is allocated a base amount of $60,136 out of the interest held by the husband and the husband’s entitlement is correspondingly reduced.

(a) The operative time is 30 May 2005.

(b) This order has effect from the operative time.

10.

The wife shall, within twenty one days of the date of these orders notify in writing the trustees of Westpac Superannuation, of:

(a) The name of the trustee;

(b) The name of the fund;

which she nominates to receive the base amount.

11.

Pursuant to Regulation 14F of the Family Law (Superannuation) Regulations 2001 and subject to the Act, any payments from the husband’s superannuation interests made after the trustee has rolled over or transferred the base amount to the superannuation fund of the wife’s choice, are not splittable payments as between the husband and wife.

12.

The wife or her administrators, executors, beneficiaries, heirs or assigns shall be entitled to payment of entitlements pursuant to this order on satisfying a condition of release in Regulation 7A.07(3) SISR, and to facilitate payment to the wife or her administrators, executors, beneficiaries, heirs or assigns in the event she or they are reliant on the husband satisfying a condition of release in order to be eligible to receive her entitlements, the trustee of Westpac Superannuation shall notify the wife in writing immediately of the happening of a condition of release.

13.

The husband shall, within seven days of these orders do all acts and things necessary to serve a copy of these orders upon the trustee of Westpac Superannuation.

14.

Within seven days each solicitor shall uplift all documents produced under subpoena and return the documents to their own.

15.

Unless an appeal is lodged, at the expiration of one calendar month all exhibits shall be returned to the person who tendered the documents.

16.

Subject to any application for costs all outstanding applications are dismissed.

17.

Any costs application shall be made within 21 days and listed by arrangement with my Associate.

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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