WELCH & ABNEY - [2018] FamCA 135

FAMILY COURT OF AUSTRALIA

WELCH & ABNEY

[2018] FamCA 135

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Where the trial was the result of remittal for re-hearing after a successful appeal – Where the parties are not in paid employment – Where the wife’s Total and Permanent Disability pension is not included in the pool of assets as its nature is that of an income stream – Where the submission that the husband has a financial resource in the form of a Common Law Claim is rejected – Concluded there is to be an overall division of 55 per cent to the husband and 45 per cent to the wife – Ordered the husband pay the wife $52,052 to achieve the percentage division – Ordered the wife retain her property – Ordered the husband retain his property – Ordered the husband be removed from the wife’s family trust

Family Law Act 1975 (Cth), ss 75, 79

Bevan & Bevan [2013] FamCAFC 116
Kowaliw & Kowaliw (1981) FLC 91-092
Semperton v Semperton (2012) 47 Fam LR 626
Stanford & Stanford (2012) 247 CLR 108
Vass & Vass [2015] FamCAFC 51

APPLICANT:

Ms Welch

RESPONDENT:

Mr Abney

FILE NUMBER:

NCC

629

2013

DATE DELIVERED:

6 March 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

23 – 26 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Gregilgas
SOLICITOR FOR THE APPLICANT:	Burke & Mead Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bates

SOLICITOR FOR THE RESPONDENT:

Hunter Valley Law Centre

Orders

Within 60 days of the date of these orders the husband shall pay to the wife an amount of $52,052 such payment to be made into the bank account nominated by the wife or as she otherwise directs.
That the wife shall retain, to the exclusion of the husband, all her right, title and interest in the property known as and situated at C Street, D Town (“the D Town property”) being Lot … in DP … and indemnify and keep indemnified the husband for any liability secured against same.
That the husband shall retain, to the exclusion of the wife, all his right, title and interest in the property known as and situated at E Street, F Town (“the F Town property”) being Lot … in … and indemnify and keep indemnified the wife for any liability secured against same.
That the parties do all acts and things as are necessary to cause the husband to:
4.1Resign as trustee of the Ms Welch Family Trust (“the Trust”);
4.2Relinquish any beneficial entitlements under the Trust;
4.3Be removed as a beneficiary of the Trust.
That unless otherwise specified in these orders each party shall:
5.1Be solely entitled to the exclusion of the other to all property, real and personal, in the possession of such party as at the date of these orders;
5.2Forego any claim that party may have to any superannuation benefit or interest belonging to or earned by the other.
That in the event 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 WELCH & ABNEY

Details

AGLC: WELCH & ABNEY [2018] FamCA 135
Case: [2018] FamCA 135
Decision Date: 6 March 2018

CaseChat Overview and Summary

This matter concerned property settlement proceedings between a husband and wife, heard by Cleary J. The dispute involved the division of various assets, including real estate, vehicles, and interests in a family trust. The parties presented differing valuations for some assets, and the court was required to determine the just and equitable distribution of their property interests.

The court was required to determine the existing legal and equitable interests of the parties in their property. It then had to consider whether, in light of these interests and the specific circumstances of the case, it was just and equitable to make an alteration to those interests. If an alteration was deemed necessary, the court was obliged to consider the factors outlined in sections 79(4) (contributions) and 75(2) (future needs) of the *Family Law Act 1975* (Cth) when determining the appropriate adjustment. Finally, the court had to analyse whether the proposed adjustment was itself just and equitable.

Cleary J applied the four-step process mandated by the High Court in *Stanford & Stanford* (2012) 247 CLR 108. This involved identifying existing interests, assessing the justness and equitableness of any alteration, considering statutory factors for adjustment, and finally re-evaluating the overall justness and equitableness of the proposed outcome. The court addressed disputed valuations of assets, including an apartment in Country H and vehicles owned by the husband, accepting revised figures where concessions were made or where documentary evidence was unclear. The court also ordered the husband to resign as trustee and relinquish any beneficial entitlements or beneficiary status in the Ms Welch Family Trust.

The court made orders for the payment of a sum of money by the husband to the wife, the retention of specific properties by each party to their exclusion, and the husband's removal from the Ms Welch Family Trust. The orders also stipulated that each party would retain property in their possession and forgo claims to the other's superannuation, with provision for a Registrar to execute documents if a party refused to do so.

Orders

Orders of the court

Within 60 days of the date of these orders the husband shall pay to the wife an amount of $52,052 such payment to be made into the bank account nominated by the wife or as she otherwise directs.

That the wife shall retain, to the exclusion of the husband, all her right, title and interest in the property known as and situated at C Street, D Town (“the D Town property”) being Lot … in DP … and indemnify and keep indemnified the husband for any liability secured against same.

That the husband shall retain, to the exclusion of the wife, all his right, title and interest in the property known as and situated at E Street, F Town (“the F Town property”) being Lot … in … and indemnify and keep indemnified the wife for any liability secured against same.

That the parties do all acts and things as are necessary to cause the husband to:

4.1 Resign as trustee of the Ms Welch Family Trust (“the Trust”);

4.2 Relinquish any beneficial entitlements under the Trust;

4.3 Be removed as a beneficiary of the Trust.

That unless otherwise specified in these orders each party shall:

5.1 Be solely entitled to the exclusion of the other to all property, real and personal, in the possession of such party as at the date of these orders;

5.2 Forego any claim that party may have to any superannuation benefit or interest belonging to or earned by the other.

That in the event of either party refusing or neglecting to sign within (3) days of receipt of a written request to do so any documents necessary to put into effect the terms of these orders then a Registrar of the Family Court of Australia is hereby appointed to execute such documents on behalf of that party pursuant to Section 106 of the Family Law Act 1975 (Cth).

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 at 490 compels this Court to be satisfied that having regard to existing legal and equitable interests [properly identified as part of the exercise] it is just and equitable to make a property settlement order, that is to alter the identified existing interests. The husband submits that the interests of the parties at date of trial are such that no further adjustment should properly be made. Accordingly in this matter the Court is obliged to follow the following long established four step process in coming to a proper outcome.[6] (i)Identify the existing legal and equitable interests of the parties in property;(ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration; (iii)If an alteration is called for, to consider the matters contained in ss 79(4) (Contributions) and 75(2) (Future Needs) of the Act in coming to an adjustment; and (iv)Analyse and consider whether the adjustment under consideration would be just and equitable.[6]Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116 The parties’ assets are set out in the joint balance sheet:[7][7] Exhibit 17 Why an item should not be on the balance sheet. Whether expert evidence is required to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert. Whether documents in the possession of the other party need to be provided before the value of an item can be agreed. Any other comment a party wishes to make in relation to the disputed item. I note that there is there is an error in the addition of the asset totals. The correct totals are as follows. There is a further error in the addition of the adjustment totals for the wife. The correct totals are as follows. The following items were the subject of submissions: This is an apartment in Country H purchased by the husband in the name of his wife Ms N in 2016. There was a reduced disparity on the value of this item by the time of submissions. A difference of $32,000. The wife contends for $262,000 with the husband conceding, after submissions, $230,000. There was a complex explanation by the husband around the purchase.[9] The relevant Country H document discloses amounts on its face inconsistent with either figure contended for and incalculable given the inclusion of a reference to “mortgage debt”. The final figure of $230,000 represents one of the two figures for the purchase price, which the wife contended should be the value used, although the dollar number was in dispute and I have accepted that figure. [9] Affidavit of the husband filed 28 April 2017, paras 188-195, Annexure DA50 Vehicles owned by the husband. In his Financial Statement the husband attributed lesser figures for these vehicles, $53,100 and $17,000 due to damage incurred. In the absence of formal valuation where the wife relied on an estimated figure for the larger vehicle and where a concession has been made by the husband I have accepted the husband’s revised figures of $60,500 and $20,250.

Ratio Decidendi

Legal Principle Established

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