WINN & WINN - [2011] FamCA 501

FAMILY COURT OF AUSTRALIA

WINN & WINN

[2011] FamCA 501

FAMILY LAW - PROPERTY - Settlement in relation to marriage – Superannuation – Pension – Valuation

FAMILY LAW - CHILD SUPPORT - Application for departure

Family Law Act 1975 (Cth) - s 75(2), s 79
Child Support (Assessment) Act 1989 (Cth) – s 4(1) s 116(1)(b), s 117(2), s 117(2)(c), s 117(4), s 117(5)
Family Law (Superannuation) Regulations 2001 – r 28, r 40

Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Ferraro and Ferraro (1993) FLC 92-335
In the Marriage of Gyselman [1991] 15 FamLR 219; [1992] FLC 92-279
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Lee Steere and Lee Steere (1985) FLC 91-626
M & M (2006) FLC 93-281

APPLICANT:

Ms Winn

RESPONDENT:

Mr Winn

FILE NUMBER:

SYC

582

2009

DATE DELIVERED:

30 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATES:

25 & 26 October 2010 & 14 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Campton

SOLICITOR FOR THE APPLICANT:

Humphreys & Feather

COUNSEL FOR THE RESPONDENT:

Mr A Givney

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

Orders

That not later than 42 days from the commencement of operation of these orders the wife shall pay to the husband the sum of $111 279 and discharge the current mortgage in respect of the former matrimonial home at … Y Street, Sydney Suburb 1 (Westpac Rocket repay home loan … and Westpac Rocket equity loan …).
That simultaneously with the above payment the husband shall forthwith do all things and sign all documents necessary to transfer to the wife his interest in the said former matrimonial home.
That in the event that the wife fails to pay the husband in accordance with paragraph 1 above the following orders shall apply:
3.1.That the husband and wife do all things and sign all documents necessary to place the said home on the market for sale and to sell it at the best price reasonably able to be obtained.
3.2.That the proceeds of sale be paid as follows:
3.2.1.In payment of real estate agent’s commission and selling expenses including legal costs on sale;
3.2.2.In payment of the outstanding mortgage; and
3.2.3.In payment of 83.953 percent of the balance to the wife and 16.047 percent thereof to the husband.
That otherwise the husband and the wife are declared the sole owners of all items of property and interests in superannuation in their possession and/or control respectively.
That except as otherwise provided herein the husband and the wife remain liable for any debts in their own name at the date of commencement of operation of these orders and each shall indemnify the other from any liability in relation thereto.
That in the event that either the husband or the wife refuses or neglects to sign any document necessary to give effect to these orders the registrars of this Court be appointed…

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 WINN & WINN

Details

AGLC: WINN & WINN [2011] FamCA 501
Case: [2011] FamCA 501
Decision Date: 30 June 2011

CaseChat Overview and Summary

In the matter of WINN & WINN, Johnston J of the Family Court of Australia made orders concerning the property settlement and child support arrangements between the parties. The dispute involved the division of assets, including the former matrimonial home and superannuation interests, and an application to depart from the current child support assessment.

The court was required to determine the appropriate distribution of the parties' property interests, including the former matrimonial home and their respective superannuation entitlements. Additionally, the court had to consider whether to depart from the existing child support assessment for their child, J, and if so, to what extent and for what period.

Johnston J ordered that the wife pay the husband a sum of $111,279 and discharge the existing mortgage on the former matrimonial home within 42 days, in exchange for the husband transferring his interest in the property to her. If the wife failed to meet this payment, the home was to be sold, with proceeds applied first to selling expenses and the mortgage, and the balance divided with 83.953% to the wife and 16.047% to the husband. Otherwise, each party was to retain property and superannuation in their possession. The court also ordered a departure from the current child support assessment, requiring the husband to pay $200 per week for J from 1 July 2011 to 30 June 2013, after which standard assessment would apply. The wife was granted sole control over ASG Scholarship Fund payments for J's school fees. The orders were to commence operation on 19 July 2011, with leave for parties to re-list for submissions on the form of orders until 18 July 2011.

Orders

Orders of the court

That not later than 42 days from the commencement of operation of these orders the wife shall pay to the husband the sum of $111 279 and discharge the current mortgage in respect of the former matrimonial home at … Y Street, Sydney Suburb 1 (Westpac Rocket repay home loan … and Westpac Rocket equity loan …).

That simultaneously with the above payment the husband shall forthwith do all things and sign all documents necessary to transfer to the wife his interest in the said former matrimonial home.

That in the event that the wife fails to pay the husband in accordance with paragraph 1 above the following orders shall apply:

3.1. That the husband and wife do all things and sign all documents necessary to place the said home on the market for sale and to sell it at the best price reasonably able to be obtained.

3.2. That the proceeds of sale be paid as follows:

3.2.1. In payment of real estate agent’s commission and selling expenses including legal costs on sale;

3.2.2. In payment of the outstanding mortgage; and

3.2.3. In payment of 83.953 percent of the balance to the wife and 16.047 percent thereof to the husband.

That otherwise the husband and the wife are declared the sole owners of all items of property and interests in superannuation in their possession and/or control respectively.

That except as otherwise provided herein the husband and the wife remain liable for any debts in their own name at the date of commencement of operation of these orders and each shall indemnify the other from any liability in relation thereto.

That in the event that either the husband or the wife refuses or neglects to sign any document necessary to give effect to these orders the registrars of this Court be appointed pursuant to s 106A of the Act to sign such document in the name of him or her and to do all things necessary to give validity and operation to the document.

That all exhibits be released.

That the above orders not commence operation until 19 July 2011.

That both parties have leave to re-list these proceedings by arrangement with the Associate to Johnston J for further submissions in relation to the form of the orders only at any time not later than 18 July 2011.

Child Support

10.

That the current child support assessment in relation to the child J born on … September 1998 be departed from so that for the period from 1 July 2011 to 30 June 2013 the husband pay child support for the child at the weekly rate of $200.

11.

That from 1 July 2013 child support be assessed in accordance with the provisions of the Child Support (Assessment) Act 1989.

12.

That the wife have sole control in respect of the payments out of ASG Scholarship Fund towards the school fees for J to attend School 1.

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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