FAMILY COURT OF AUSTRALIA
| WOTTON & WOTTON AND ANOR | [2010] FamCA 194 |
| FAMILY LAW - PROPERTY - Settlement in relation to marriage - Transactions to defeat orders - On the date of separation the husband transferred a substantial sum of money to his half-sister who resides in the United Kingdom - Transactions set aside pursuant to s 106B of the Family Law Act - Section 79 application for property settlement - Superannuation splitting orders - Spousal maintenance - Child support departure order |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth) |
| Atco Controls Pty Ltd (in liq) v Newtronics Pty Ltd (recs and mgrs appt) [2009] VSCA 238 Balfour v Balfour [1919] 2 KB 571 Biltoft v Biltoft (1995) 19 Fam LR 82 Black & Kellner (1992) 15 Fam LR 343 Brodie v Brodie (2009) 41 Fam LR 18 Chang v Su (2002) 29 Fam LR 406 Cohen v Cohen (1929) 42 CLR 91 Cumpton v Cumpton (2007) 38 Fam LR 377 Essex v Essex [2009] FamCAFC 236 Gyselman & Gyselman (1992) FLC 92-279 Halabi v Artillaga (1994) FLC 92-470 Henderson v Miles [2005] NSWSC 710 Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181 Magill v Magill (2006) 231 ALR 277 Marriage of Clauson (1995) 18 Fam LR 693 Marriage of Coghlan (2005) 33 Fam LR 414 Marriage of Gould (1993) 17 Fam LR 156 Marriage of Hickey (2003) 30 Fam LR 355 Marriage of Phillips (2002) 29 Fam LR 128 Omacini v Omacini (2005) 33 Fam LR 134 Parrott v Public Trustee of NSW (1993) 17 Fam LR 785 Strahan & Strahan (Interim Property Orders) [2009] FamCAFC Weir & Weir (1992) 16 Fam LR 154 |
| APPLICANT: | Mr Wotton |
| FIRST RESPONDENT: | Ms Wotton |
| SECOND RESPONDENT: | E |
| FILE NUMBER: | SYC | 3621 | of | 2008 |
| DATE DELIVERED: | 15 March 2010 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 10, 11 & 12 February 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tockar |
| SOLICITOR FOR THE APPLICANT: | Delaney Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE FIRST RESPONDENT: | Fox & Staniland |
| COUNSEL FOR THE SECOND RESPONDENT | Not Applicable |
| SOLICITOR FOR THE SECOND RESPONDENT | Not Applicable |
Orders
The husband shall pay to the wife spousal maintenance of $16,120 for the period commencing on 15 March 2010 and ending on 14 March 2011.
Order 1 hereof is an order to which s 77A of the Family Law Act applies, and the whole of the amount payable is spousal maintenance.
For the purposes of implementing Order 1 hereof the parties shall forthwith:
a)Properly execute an irrevocable authority addressed to Lloyds TSB Bank plc in the form comprising “Annexure A” to the affidavit of L filed in these proceedings on 11 November 2009,
b)Furnish Lloyds TSB Bank plc with that irrevocable authority,
c)Sign all other documents and do all other things necessary so as to instruct Lloyds TSB Bank plc to distribute the proceeds of account number …59 held at the … branch in the manner directed…
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- Case
- [2010] FamCA 194
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues, including the appropriate amount of spousal maintenance to be paid by the husband to the wife, and the setting aside of certain dispositions of property made by the husband to the second respondent. Additionally, the court needed to address the ownership and distribution of various assets, including bank accounts, shares, vehicles, and real estate located in both the United Kingdom and New South Wales. The court also had to consider the division of superannuation interests and the allocation of responsibility for the children's expenses.
Justice Austin applied principles of property settlement and spousal maintenance under the *Family Law Act 1975* (Cth). The court ordered the husband to pay a specific sum as spousal maintenance, designating it as an amount to which s 77A of the Act applied. Furthermore, pursuant to s 106B of the Act, the court set aside two dispositions of funds by the husband to the second respondent, ordering the second respondent to pay a substantial sum to the wife's solicitors. The court then meticulously detailed the distribution of these funds and other assets, including the allocation of the UK property and the T property in New South Wales, and the division of various financial accounts and personal belongings. The court also made orders regarding the splitting of the husband's superannuation interest in the S Fund, specifying base amounts and future entitlements for the wife.
The court made comprehensive orders regarding the division of assets and liabilities, including the discharge of joint debts and the transfer of property ownership between the parties. Specific provisions were made for the collection of personal items and photo albums, and for the ongoing financial responsibilities for the children. The court also empowered the Registrar of the Family Court to execute documents in default of compliance and dismissed outstanding applications, reserving costs for a period.
Orders
Orders of the court
1.
The husband shall pay to the wife spousal maintenance of $16,120 for the period commencing on 15 March 2010 and ending on 14 March 2011.
2.
Order 1 hereof is an order to which s 77A of the Family Law Act applies, and the whole of the amount payable is spousal maintenance.
3.
For the purposes of implementing Order 1 hereof the parties shall forthwith:
a) Properly execute an irrevocable authority addressed to Lloyds TSB Bank plc in the form comprising “Annexure A” to the affidavit of L filed in these proceedings on 11 November 2009,
b) Furnish Lloyds TSB Bank plc with that irrevocable authority,
c) Sign all other documents and do all other things necessary so as to instruct Lloyds TSB Bank plc to distribute the proceeds of account number …59 held at the … branch in the manner directed by the irrevocable authority, and
d) Sign all documents and do all things necessary to instruct the wife’s solicitors to distribute the funds received by them from Lloyds TSB Bank plc pursuant to the irrevocable authority in the following manner:
i) The sum of $16,120 to the wife, in satisfaction of Order 1 hereof, and
ii) The balance in reduction of the debit balance on home loan account number …08, for which the parties are jointly liable to the Commonwealth Bank of Australia, and if that debt is already discharged, to the husband.
4.
Pursuant to s 106B of the Family Law Act, the disposition by the husband to the second respondent, on or about 21 May 2008, of ₤64,000 from account number …95 held by the husband with Halifax is hereby set aside.
5.
Pursuant to s 106B of the Family Law Act, the disposition by the husband to the second respondent, on or about 21 May 2008, of ₤36,000 from account number …91 held by the husband with Halifax is hereby set aside.
6.
The second respondent shall forthwith pay to the wife’s solicitors the sum of GBP₤100,000.
7.
The husband and the wife shall forthwith sign all such documents and do all things necessary so as to instruct the wife’s solicitors to distribute the funds received by them pursuant to Order 6 hereof in the following manner:
a) The sum of AUD$73,680 to the wife, and
b) The balance in reduction of the debit balance on home loan account number …08, for which the parties are jointly liable to the Commonwealth Bank of Australia, and if that debt is already discharged, to the husband.
8.
In default of compliance with Order 6 hereof within 28 days:
a) The wife is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising, and being known as, …, United Kingdom, (“the UK property”), and the husband shall do all such things and sign all such documents as may be necessary to transfer to the wife all his right, title, and interest in the UK property.
b) The wife shall indemnify and keep indemnified the husband against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the UK property.
9.
Pending compliance with Order 6 hereof, without the written permission of the wife, the husband is restrained from:
a) Selling or transferring the UK property, and
b) Further encumbering the UK property, and
c) Allowing the debit balance on the loan owed by the husband to Alliance & Leicester, secured by mortgage over the UK property, from increasing beyond the equivalent of AUD$370,000.
10.
Subject to compliance with Order 6 hereof:
a) The husband is declared the sole owner (as between the parties) of the UK property,
b) The husband shall indemnify and keep indemnified the wife against any and all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the UK property.
11.
Within 28 days of the date of these orders, the husband shall discharge:
a) Home loan account number …08, for which the parties are jointly liable to the Commonwealth Bank of Australia, and mortgage number …87 registered or held over the T property securing that loan, and
b) Any other liability incurred in the names of the husband and wife, or either of them, secured by CBA mortgage number …87:
i) Which may include the husband’s CBA streamline overdraft account number …37, and the husband’s debt on CBA visa card number …487,
ii) But excluding the wife’s debt on CBA mastercard number …005.
12.
Contemporaneously with compliance with Order 11 hereof, the husband is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier …, being the property more commonly known as T, NSW (“the T property”), and the wife shall do all such things and sign all such documents as may be necessary to transfer to the husband all her right, title, and interest in the T property.
13.
In default of Order 11 hereof, the parties shall do all such acts and things and sign all such documents as may be necessary to list the T property for sale by public auction on the following terms:
a) The solicitors acting for the wife in these proceedings shall be the solicitors acting on the sale for the parties.
b) The property shall be listed by the parties for auction sale within 6 weeks of the date of the husband’s default in compliance with Order 11.
c) The auctioneer, in the event of disagreement between the parties, shall be the auctioneer chosen by ballot from the respective choices of the parties.
d) The reserve price shall be as agreed between the parties, and in the event of disagreement between the parties, the reserve price nominated by the auctioneer.
e) In the event that the T property is not sold by auction, or private negotiation within a further 7 days, then it shall be submitted to successive auctions within further 6 weeks periods until sold, otherwise on the same terms and conditions as applied to the first auction.
f) The parties are restrained from charging, mortgaging, or otherwise encumbering the property.
g) The husband may occupy the T property pending its sale pursuant to these orders, provided that he meets all expenses incurred in respect of the property as and when those expenses fall due (including loan repayments, Council rates, water rates, and insurances), maintains the realty in a reasonable state of repair, and facilitates inspection of it by prospective purchasers.
14.
Upon completion of the sale of the T property pursuant to Orders 12 and 13 hereof the solicitors acting for the parties on the sale shall disburse the proceeds of sale as follows:
a) Firstly, to pay all costs, commissions, and expenses of the sale and to pay any Council and water rates outstanding in respect of the property.
b) Secondly, to pay the amount to discharge the debts and encumbrances referred to in Order 11 hereof.
c) Thirdly, to pay to the wife 55.5% of any balance then remaining.
d) Fourthly, to pay the balance then remaining to the husband.
15.
The husband shall indemnify and keep indemnified the wife against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the T property.
16.
The husband is declared the sole legal and beneficial owner (as between the parties) of, and the wife shall execute all such documents as may be necessary to transfer to the husband all legal and equitable title in, the following items of property:
a) VW Golf car, registration number …
b) Halifax account number …91
c) Halifax account number …95
d) Laiki bank account number …83
e) The HSBC banking account held in the name of the husband
f) HBOS/Lloyds shares
17.
The wife is declared the sole legal and beneficial owner (as between the parties) of, and the husband shall execute all such documents as may be necessary to transfer to the wife all legal and equitable title in, the following items of property:
a) Ford Telstar car, registration number …
b) CBA account number …44
18.
On or before 5 April 2010 the husband shall make the items listed and attached at Annexure “A” available for the wife and her nominee to collect from the T property.
19.
To facilitate Order 18 the wife shall nominate three different times and dates to attend the property within seven days from the date of these Orders and the husband within a further seven days shall select and advise the wife of one of those dates/times.
20.
If the husband fails to select a date and time for the wife to collect the said items by 5:00 pm on 29 March 2010 the wife’s third preference of the three she nominated pursuant to Order 19 shall prevail.
21.
The wife and her nominee may then enter the T property, on the date as selected above, to retrieve the items listed in Annexure “A”.
22.
Simultaneously when the wife attends the T property to retrieve the items in Annexure “A” pursuant to these Orders, the husband must make available for the wife to collect all photo albums listed in Annexure “B”, noting that the wife shall be entitled to keep the originals of the albums listed in items 1, 2(a)–(i) inclusive and the husband must make any copies he requires prior to that date.
23.
Within 30 days of the wife’s receipt of the original albums pursuant to Order 22 the wife shall make available for the husband to collect the original albums listed in items 2(j)-(r) inclusive of Annexure “B” for the husband to collect such albums.
24.
It is declared that the trustee of S Superannuation Fund has been accorded procedural fairness in respect of the following superannuation splitting orders, and orders ancillary thereto.
25.
The superannuation splitting orders are binding upon the trustee of S Superannuation Fund.
26.
Pursuant to s 90MT(2) of the Family Law Act, for the purpose of these orders the value of the husband’s superannuation interest in S Fund is determined to be $582,960, being a value with which the parties agree.
27.
Pursuant to s 90MT(4) of the Family Law Act, a base amount of $339,168 is allocated to the wife out of the husband’s superannuation interest in S Fund.
28.
Pursuant to s 90MT(1)(a) of the Family Law Act, whenever a splittable payment becomes payable in respect of the husband’s superannuation interest in S Fund:
a) The wife is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 using the base amount, and
b) There will be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made but for the order.
29.
These orders shall have effect from the operative time, and for that purpose the operative time shall be 4 days from the date of service of these orders upon the trustee of S Fund.
30.
Unless otherwise provided:
a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder, and superannuation interests are deemed to be in the possession of the superannuant.
b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names.
31.
The husband pay for the benefit of the children, in addition to the Child Support Agency child support administrative assessment as varied from time to time, the following:
a) All private health insurance premiums with HBA policy number … at the current level of cover;
b) As and when same fall due one half of all school fees, school books and other stationary costs, school uniforms, sports equipment, excursions, extra-curricular activities undertaken by the children or either of them, including tuition courses agreed in writing prior to their being incurred, such agreement not to be unreasonably withheld;
c) One-half of all the gap expenses regarding health care costs after Medicare and private health insurance rebates for services of registered medical practitioners, hospital, physiotherapy, dental, orthodontic and optometry within 7 days of receiving an invoice or receipt from the wife of such expenses incurred by the children; and
d) Each parent to be responsible for the cost of day care/after school care as utilised by them when the children are in their care.
32.
In the event of any party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s106A of the Family Law Act.
33.
Any and all outstanding applications are dismissed.
34.
Costs are reserved for a period of 28 days from the date of these orders.
ANNEXURE “A”
ITEM
1.
K’s Binnowee tea towel 2007 (in cane drawers)
2.
Baby Wotton 1 videos of ultrasounds 19 wks (K)
3.
Baby Wotton 2 videos of ultrasounds 19 wks (B)
4.
Guess How Much I Love You Height Chart
5.
utensils set (in brown box)
6.
Xmas Santa photos of kids
7.
50% of K’s Portfolio activities/drawings etc from ABC daycare 2005
8.
K and B’s Blue Medical books.
9.
Educations CDs/DVDs for computer.
10.
K baby photo (Pixie photos, striped top with duck on it)
11.
DVDs/Videos
a) The Office complete 1st series – Video
b) The Human Body Trilogy videos
c) Sydney at War video – copied off TV
d) Rabbit Proof Fence DVD – Wife won
e) Playschool Out & About Video (passed down to Wife from her sister)
f) Copy of K’s 2nd birthday video copied in UK 2005 from “…” TV show, where birthday card to K that the Wife made was shown and birthday hello from children’s entertainer.
g) Bob the Builder – Buffalo Bob video
h) Toy Story 2 video
i) Lady & the Tramp video (passed down from Wife’s sister)
j) Stuart Little DVD – No. 2 & 3 series
k) Any other children’s DVDs Husband willing to pass on and considers fair as he has retained at least 90% of them.
12.
Audio CDS
a) Beatles No. 1 album
b) Yellow Submarine
c) Paul McCartney Off the Ground
d) Unfenced Land
e) Queen greatest hits
f) Midnight Oil. Diesel and Dust
g) Men at Work. Business as Usual.
h) Colin Hay – Transcendental Highway
i) Hands Up – Rhythm Factory
j) Play a song – Silly Songs CD and book
k) The Wiggles (original – 1st CD)
l) Songs for Aussie Kids
m) Great Australian Song book
n) I like to Sing – Justine Clark
o) Circle songs for Preschoolers
p) Sing-a-long Christmas party
q) Vivaldi collection
r) 18 ABBA hits recently bought by the wife
s) Fun songs – Love to sing
PLUS any more Husband is willing hand on.
13.
Digital Photos copied on CD/DVDs – Disks 31 & 35 only
15.
Home videos – copies onto DVD with date
16.
Congratulations/Birthday cards/Xmas Cards for kids saved
17.
Weekend Australian newspaper from October 2006 when B born
18.
White wooden baby cradle
19.
1 wooden playpens (one with floor and yellow thin vinyl mattress)
20.
Cancer Council Beach sunshade shelter (pop up one) – blue and yellow
21.
Camp fire hotplate with fold out legs. (Heavy one)
22.
Children’s Toys:
a) Recorder (musical instrument, passed down from wife’s sister)
b) Plastic egg and Spoons game (game I bought for Playgroup Xmas day activity)
c) Castanets (were Wife’s Grandmothers)
d) Spinning Bells and stand (Wife bought at a garage sale)
e) Beetle Game (gift from Wife’s mother)
f) Junior Scrabble (gift from Wife’s friend)
g) Insey Winsey Spider Game in box (passed down from Wife’s friend)
h) Green crate of boys little castle and knights set with figurines (passed down from Wife’s sister)
i) Plastic Airport set (passed down from Wife’s sister)
j) Junior Engineer gear set
k) Toy red car and plastic keys – makes sounds and lights and doors open (Wife bought in UK)
l) Fisher Price Clock Teacher (Wife bought on sale)
23.
Children’s Dress ups:
a) English Bobby helmet
b) Fireman’s hat
c) Pirate hat
d) Grey felt hat (used to be Wife’s father’s)
e) Brownie uniform
f) Grid iron body armour
g) Batman mask
h) Cowboy pants and spurs
i) Toy cowboy gun
24.
Soft cover Children’s Books:
a) Pondus the Penguin
b) The Secret Fairy Party
c) 1001 Things to Spot in Fairyland
d) Box set – Usborne Farmyard Tales
e) Time for Bed
25.
Hardcover/Board Children’s books:
a) Big Book of Wild Australia
b) Peter Rabbit Songs
26.
Adult books:
a) My Medical Diary (Wife has started writing it up for herself and kids)
b) Aust. Children’s Party
c) Baby Love
d) The Mighty Toddler
e) Fun & Games Activities for 2-6 Year Olds (passed down from …)
f) The Number Devil
g) Brockhampton Book of Children’s parties
h) Save our Sleep
i) Kid Wrangling
j) The Birds of Australia
k) The Complete Parenting Guide
l) Toddler Taming
27.
Recipe Books:
a) Delia’s Winter Collection or the Delia’s summer collection
b) Nigella Lawson’s Forever Summer (Wife won in competition)
c) Beat Cookbook
28.
Box of wine bottles.
ANNEXURE “B”
PHOTO ALBUMS
PHOTO ALBUM
P1
Pre-School Days Photo album – photos from 2007 of K and B (or copies of same quality)
P2
Photo Albums – non digital photos:
Wife to Retain the following albums but to allow Husband to borrow for copies to be made:
a) K’s first year (yellow with her name on Front. I put this album together)
b) Silver wedding album
c) Jan 2001 – Oct 2001. Mottled pink/red/blue
d) Grey Flip album – personal collection of photos
e) Rivers Green shoebox that has lots of photos taken and catalogued on Wife’s 35mm camera.
f) Blue one stripes matching Pink striped one (Memories photo album)
g) Paris 1997 – Xmas 1999. Blue, gold strip edge
h) April 1996. London/Ireland/Paris trip (small blue one)
i) 2 of the 4 plastic flip albums that had all the Paris 1993 trip photos
Husband to retain following albums but to allow Wife to borrow for copies to be made:
j) July ’95 Barrier Reef Trip – shells cover
k) Pale Blue Baby boy album – nothing in as yet but collection of many baby photos of B already printed, ready to put in it.
l) Sabbatical Trip Nov 2001 – July 2002 - 2 albums with Black edges and burgundy colour.
m) April ’04 – 30/5/05. Mauve with pink stripes
n) May 200 UK – Olympics 2000 – Dec 2000 (blue cover)
o) Jan 2000 Lord Howe Is. – May 2000 HK, UK
p) Blue Checked box of Kodak Photo CDs
q) wedding photos – in plastic ziplock bag – collection of wedding photos by family and friends.
r) 2 of the 4 plastic flip albums that had all the Paris 1993 trip photos.
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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