WATERS & WATERS - [2010] FMCAfam 198

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WATERS & WATERS

[2010] FMCAfam 198

FAMILY LAW – Property – long marriage – contribution of parties found to be equal – loading given to the wife on the basis of section 75(2) factors being her long-standing health issues and the husband’s greater earning capacity.

Family Law Act 1975, ss.75, 77, 79

C & C [1998] FamCA 143
M & M [1998] FamCA 42
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Re NHC & RCH (2004) FLC 93-204
AJO & GRO (2005) FLC 93-218
M and M [2006] FamCA 913

Applicant:

MS WATERS

Respondent:

MR WATERS

File Number:

MLC 8637 of 2009

Judgment of:

Bender FM

Hearing dates:

2 & 3 March 2010

Date of Last Submission:

3 March 2010

Delivered at:

Melbourne

Delivered on:

7 May 2010

REPRESENTATION

Counsel for the Applicant:

Mr Puckey

Solicitors for the Applicant:

J A Middlemis

Counsel for the Respondent:

Mr Williams

Solicitors for the Respondent:

Cahills

ORDERS

The real property situate and known as Property U Queensland (being Lot [omitted]) be forthwith sold altogether out of Court (“the sale”) and the proceeds of the sale be applied:-
(a)firstly to pay all costs, commission and expenses of the said sale;
(b)secondly to discharge the mortgage and any other encumbrance affecting the real property;
(c)thirdly in payment of (or retained in trust until payment) the amount of capital gains tax due and payable by the parties following the sales by the parties of:-
(i)the real property situate and known as Property U Queensland, and
(ii)the party’s joint share port folio, and
the capital gains tax liability shall be calculated in accordance with paragraph 2 hereof, and
(d)fourthly the balance then remaining (hereafter called “the net proceeds of sale”) be divided:-
(i)to the wife 65% of (“X” plus $70,000.00), where:-
(aa)“X” is the net proceeds of sale of the real property at Property U Queensland having carried out the calculations set out above, and
(e)the balance of the net sale proceeds to the husband.
In order to calculate the capital gains tax liability set out in paragraph 1(c) hereof each party shall forthwith (and time shall be of the essence) do all things and sign all documents required to:-
(a)jointly appoint an accountant to be agreed between their solicitors, and
(b)instruct the accountant to calculate the capital gains accrued upon the sale of the party’s shares and investment property, and
(c)apportion the capital gains calculated at sub paragraph (b) equally between them in their personal income taxation returns, and
(d)pay the capital gains tax assessed by the Australian Taxation Office upon their share of the capital gains when it falls due.
Liberty be reserved to either party to apply with respect to the terms and conditions of and execution of sale.
For the purpose of these orders, pursuant to section 90MT(1)(a) of the Family Law Act 1975:
(a)the operative time is 4 business days after service of these Orders upon the trustee of…

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 WATERS & WATERS

Details

AGLC: WATERS & WATERS [2010] FMCAfam 198
Case: [2010] FMCAfam 198
Decision Date: 7 May 2010

CaseChat Overview and Summary

In the matter of Waters versus Waters, the Family Court of Australia was called upon to resolve property disputes between the parties following their separation. The primary issue for determination was the division of their assets, including a jointly owned property, investment portfolio, and superannuation fund. The court was tasked with determining the equitable distribution of these assets, considering the contributions of each party and the future needs of both.

The court meticulously evaluated the contributions made by each party to the acquisition and maintenance of their assets, particularly focusing on the property and superannuation fund. The court held that the wife was entitled to a larger share of the proceeds from the sale of the property, reflecting her greater contribution and future needs. Regarding the superannuation fund, the court ordered that a specific amount be allocated to the wife, calculated based on a predetermined formula. The court also imposed restrictions on the husband’s ability to alter death benefit nominations that could adversely affect the wife’s entitlements.

The court ruled that the jointly owned property be sold, with the net proceeds divided between the parties in accordance with the court’s calculations. Additionally, the court mandated that both parties jointly appoint an accountant to determine their capital gains tax liabilities arising from the sale of the property and investment portfolio, with each party responsible for their respective share of the tax. The court reserved the right for either party to apply for further orders regarding the sale of the property.

The final orders of the court mandated the sale of the jointly owned property, with the proceeds allocated to cover costs, discharge encumbrances, pay capital gains tax, and divide the remaining amount between the parties. The court also detailed the calculation of the wife's entitlement from the husband's superannuation fund and imposed restrictions on the husband's ability to alter death benefit nominations. Furthermore, the court outlined the division of other assets and liabilities, including joint bank accounts, insurance policies, and superannuation benefits, ensuring that each party's claims to the other's property and benefits were explicitly addressed.

Orders

Orders of the court

The real property situate and known as Property U Queensland (being Lot [omitted]) be forthwith sold altogether out of Court (“the sale”) and the proceeds of the sale be applied:-

(a) firstly to pay all costs, commission and expenses of the said sale;

(b) secondly to discharge the mortgage and any other encumbrance affecting the real property;

(c) thirdly in payment of (or retained in trust until payment) the amount of capital gains tax due and payable by the parties following the sales by the parties of:-

(i) the real property situate and known as Property U Queensland, and

(ii) the party’s joint share port folio, and

the capital gains tax liability shall be calculated in accordance with paragraph 2 hereof, and

(d) fourthly the balance then remaining (hereafter called “the net proceeds of sale”) be divided:-

(i) to the wife 65% of (“X” plus $70,000.00), where:-

(aa) “X” is the net proceeds of sale of the real property at Property U Queensland having carried out the calculations set out above, and

(e) the balance of the net sale proceeds to the husband.

In order to calculate the capital gains tax liability set out in paragraph 1(c) hereof each party shall forthwith (and time shall be of the essence) do all things and sign all documents required to:-

(a) jointly appoint an accountant to be agreed between their solicitors, and

(b) instruct the accountant to calculate the capital gains accrued upon the sale of the party’s shares and investment property, and

(c) apportion the capital gains calculated at sub paragraph (b) equally between them in their personal income taxation returns, and

(d) pay the capital gains tax assessed by the Australian Taxation Office upon their share of the capital gains when it falls due.

Liberty be reserved to either party to apply with respect to the terms and conditions of and execution of sale.

For the purpose of these orders, pursuant to section 90MT(1)(a) of the Family Law Act 1975:

(a) the operative time is 4 business days after service of these Orders upon the trustee of the [R] Staff Superannuation Fund; and

(b) the member spouse is the husband, Mr Waters born [in] 1964; and

The base amount allocated to the non-member spouse is $42,104.00 of the interest held by the member spouse in the [R] Staff Superannuation Fund.

Whenever the trustee makes a splittable payment from the interest held in the [R] Staff Superannuation Fund by the member spouse,

Mr Waters, the trustee shall pay to the non-member spouse Ms Waters, her entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $42,104.00 and there shall be a corresponding reduction in the entitlement that the member spouse would have had but for these orders.

The husband be restrained by himself his servants or agents from making any binding death benefit nomination to the trustee of the [R] Staff Superannuation Fund in favour of any child who is an eligible beneficiary within the meaning of Regulation 13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the wife of the splitting order made in paragraph 6 of these orders.

Paragraphs 4 to 7 (inclusive) of these orders are binding on the trustee of the [R] Staff Superannuation Fund.

Each party and the trustee of the [R] Staff Superannuation Fund have liberty to apply in relation to the implementation of the orders affecting the superannuation interest.

10.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders.

(b) monies standing to the credit of the parties in any joint bank account are to be divided:-

(i) 65% to the wife, and

(ii) 35% to the husband

(d) insurance policies remain the sole property of the life insured named therein.

(e) 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.

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

(g) each party foregoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future.

11.

That the applications of the wife filed on the 28th day of September 2009 and of the response of the husband filed on the 18th day of November 2009 be otherwise 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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