Westmore and Westmore - [2007] FamCA 164

FAMILY COURT OF AUSTRALIA

WESTMORE & WESTMORE

[2007] FamCA 164

FAMILY LAW - PROPERTY SETTLEMENT - Contributions

Family Law Act 1975 (Cth)

Kowaliw & Kowaliw(1981) FLC91-092
Whiterod & Taylor(2006) FLC93-266
Townsend & Townsend (1995) FLC 92-569

APPLICANT:

Mrs Westmore

RESPONDENT:

Mr Westmore

FILE NUMBER:

MLF

2638

2005

DATE DELIVERED:

8 March 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

19,20,21,22 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Davis

SOLICITOR FOR THE APPLICANT:

Tollhurst Druce & Emmerson

COUNSEL FOR THE RESPONDENT:

The husband in person

Orders

1.That the husband shall pay to the wife the sum of $28,000 (“the first payment”) within 30 days of the date of these orders (“the first date”) and until the first payment is paid in full, the husband shall be restrained from selling, transferring, or further encumbering the property known as T save to effect a sale pursuant to the next paragraph of these orders.
2.That in default of the husband making the first payment by the first date then the husband shall forthwith do all acts and things to sell T and the proceeds of sale shall be applied:
(a)To pay the costs and commissions of sale;
(b)To discharge the mortgage to the ANZ Bank;
(c)To pay to the wife the balance of the first payment owing pursuant to paragraph 1 of these orders; and
(d)The balance to be paid to the husband.

That the husband shall pay to the wife the sum of $700,000 (“the second payment”) within 90 days of the date of these orders (“the second date”) and until the second payment is paid in full, the husband shall be restrained from selling, transferring, or encumbering the property known as E save to transfer it to the wife pursuant to the next paragraph of these orders.
That in default of the husband making the second payment by the second date then the husband shall do all acts and things to transfer to the wife at the expense of the wife all of his right title and interest in E and contemporaneously with the transfer the husband shall provide the wife with vacant possession of E.
That pending the transfer of E pursuant to the previous paragraph of these orders, the husband shall pay all outgoing rates and taxes in respect of it and shall maintain it in good condition.
That the Holden Statesman motor vehicle currently in the wife’s possession shall be made available for collection by the husband within 14 days from the date of these orders, together with all service records and accompanying documentation and contemporaneously with the collection of this vehicle the husband shall hand to the wife a bank cheque made payable to the wife in the sum of $16,000.
That the husband shall be restrained from removing or attempting to remove the said Holden motor vehicle from the wife’s possession until he has given her the bank cheque referred to in the preceding order.
That the Trustees of the CG SUPER PLAN,…

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 Westmore and Westmore

Details

AGLC: Westmore and Westmore [2007] FamCA 164
Case: [2007] FamCA 164
Decision Date: 8 March 2007

CaseChat Overview and Summary

This matter concerned orders made by Dessau J in family law proceedings between a husband and wife. The dispute involved the division of property and the allocation of financial resources between the parties. The court's orders addressed the payment of specific sums of money, the transfer of property, and the division of superannuation interests.

The court was required to determine the terms of property settlement, including the amounts payable by the husband to the wife, the disposition of specific assets such as a property known as 'T' and another known as 'E', and a motor vehicle. Crucially, the court also had to address the division of the husband's superannuation interest held within the CG SUPER PLAN, a sub-plan of the M Super Trust, and ensure that the trustee of this fund was bound by the orders made.

Dessau J applied principles of property adjustment under the *Family Law Act 1975* (Cth). The orders provided for the husband to pay the wife $28,000 within 30 days, with a restraint on selling property 'T' until this payment was made, or to sell 'T' and apply the proceeds to discharge sale costs, an ANZ mortgage, and the outstanding payment to the wife. The husband was also ordered to pay the wife $700,000 within 90 days, with a restraint on selling property 'E' unless it was transferred to the wife in default of payment. The court also ordered the husband to provide the wife with a bank cheque for $16,000 upon collection of a Holden Statesman motor vehicle. Furthermore, the court made specific orders regarding the husband's superannuation interest, allocating a base amount of $171,574 to the wife and directing the trustee of the CG SUPER PLAN to pay the wife her calculated entitlement from splittable payments, in accordance with the *Family Law (Superannuation) Regulations 2001*. The husband was restrained from taking actions that would render his superannuation payments non-splittable.

The orders also stipulated that each party would be solely entitled to other property in their possession, joint bank accounts were to be divided equally, and each party would forego claims to the other's superannuation benefits and work-related entitlements, save as expressly provided. The question of the wife's costs was reserved for further argument.

Orders

Orders of the court

1. That the husband shall pay to the wife the sum of $28,000 (“the first payment”) within 30 days of the date of these orders (“the first date”) and until the first payment is paid in full, the husband shall be restrained from selling, transferring, or further encumbering the property known as T save to effect a sale pursuant to the next paragraph of these orders.

2. That in default of the husband making the first payment by the first date then the husband shall forthwith do all acts and things to sell T and the proceeds of sale shall be applied:

(a) To pay the costs and commissions of sale;

(b) To discharge the mortgage to the ANZ Bank;

(d) The balance to be paid to the husband.

That the husband shall pay to the wife the sum of $700,000 (“the second payment”) within 90 days of the date of these orders (“the second date”) and until the second payment is paid in full, the husband shall be restrained from selling, transferring, or encumbering the property known as E save to transfer it to the wife pursuant to the next paragraph of these orders.

That in default of the husband making the second payment by the second date then the husband shall do all acts and things to transfer to the wife at the expense of the wife all of his right title and interest in E and contemporaneously with the transfer the husband shall provide the wife with vacant possession of E.

That pending the transfer of E pursuant to the previous paragraph of these orders, the husband shall pay all outgoing rates and taxes in respect of it and shall maintain it in good condition.

That the Holden Statesman motor vehicle currently in the wife’s possession shall be made available for collection by the husband within 14 days from the date of these orders, together with all service records and accompanying documentation and contemporaneously with the collection of this vehicle the husband shall hand to the wife a bank cheque made payable to the wife in the sum of $16,000.

That the husband shall be restrained from removing or attempting to remove the said Holden motor vehicle from the wife’s possession until he has given her the bank cheque referred to in the preceding order.

That the Trustees of the CG SUPER PLAN, a sub plan of the M Super Trust, (hereinafter referred to as “C.G.S.P.”) is bound by these orders and required to do all such acts and things and sign all such documents as may be required to give full effect to these orders, it being noted that the Trustee was accorded procedural fairness in relation to the making of this order.

That the base amount allocated to the wife out of the superannuation interest held by the husband in the C.G.S.P. Fund is $171,574.

10.

That, in accordance with Section 90MT(1) of the Family Law Act 1975, whenever the Trustee of the C.G.S.P. makes a splittable payment out of the superannuation interest held by the husband in the C.G.S.P., the Trustee shall pay to the wife, or her legal personal representative, the entitlement calculated in accordance with Part 6 of the Family Law (superannuation) Regulations 2001, and there is a corresponding reduction in the entitlement the husband would have had but for this order.

11.

That paragraph 8 of this order has effect from the operative time.

12.

That the solicitors for the wife shall serve a sealed copy of this order upon the Trustee within 7 days.

13.

The operative time for the purpose of this order is four business days from the date of service upon the Trustee of a sealed copy of these orders.

14.

That the husband shall be and is hereby restrained by himself, his servants or agents from executing, and/or giving to the Trustee of the C.G.S.P. Fund, a binding death benefit nomination in favour of any person, or from doing any other act or thing, which would render any part of, or payment from, his superannuation interest in the C.G.S.P. Fund a “not splittable payment” within the meaning of regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001 such as would defeat the wife’s entitlement pursuant to this order.

15.

That 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 shall 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 equally between the parties;

(c) Save as expressly provided for in these orders each party shall forego any claims they may have to any superannuation benefits and all other work related entitlements belonging to or earned by the other;

(d) Insurance policies shall remain the sole property of the owner named thereon; and

(e) Each party shall 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.

16.

That otherwise all extant applications pending between the parties shall be dismissed.

17.

That these proceedings shall be removed from the active pending list.

18.

That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

19.

That the question of the wife’s costs shall be reserved for argument before me at 10.00am on 14 March 2007 and the wife’s solicitor shall provide the husband and the court a written summary of argument by 10.00am on 13 March 2007.

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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