ZIMIN & NICKSON - [2014] FCCA 206

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZIMIN & NICKSON

[2014] FCCA 206

Catchwords:
FAMILY LAW – Proceedings for alteration of matrimonial property interests – nature of parties’ relationship prior to marriage – husband contends parties were dating and kept finances separate – wife contends parties were in a marriage-type relationship – wife asserts period of relevant relationship nine years – husband asserts four years – implications of this distinction –weight to be given to husband’s initial contribution of capital – special recognition – assessment of contributions – assessment of section 75(2) factors – just and equitable.

Legislation:

Family Law Act 1975, ss.4(1); 79(1); 79(2); 79(4); 75(2)

Jonah v White (2012) 45 Fam LR 460
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Bevan & Bevan [2013] FamCAFC 116
Stanford v Stanford [2012] HCA 52
Watson & Ling [2013] FamCA 57
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Townsend (1994) 18 Fam LR 505
In the Marriage of Kowaliw (1981) FLC 91-092
Waters & Jurek (1995) FLC 92-635
D & D [2003] FamCA 473
In re: Watson: ex parte Armstrong (1976) FLC 90-059
Mallett & Mallett (1984) FLC 91-507
Pierce & Pierce (1999) FLC 92-844
NHC & RCH (2004) FLC 93-204
Rushton & Rushton [2011] FMCAfam 1259
C & C (2005) FLC93-220
Ferraro & Ferraro (1992) 16 Fam LR 1
Mallett & Mallett (1984) 156 CLR 605
Kane & Kane [2013] FamCAFC 205
Steinbrenner & Steinbrenner [2008] Fam CAFC 193
Clauson & Clauson (1995) FLC 92-595
Ferguson & Ferguson (1978) FLC 90-500

Applicant:

MZ ZIMIN

Respondent:

MR NICKSON

File Number:

ADC 3933 of 2011

Judgment of:

Judge Brown

Hearing dates:

11, 12, 13 and 14 June 2013

Date of Last Submission:

22 November 2013

Delivered at:

Adelaide

Delivered on:

26 February 2014

REPRESENTATION

Counsel for the Applicant:

Mr Richards

Solicitors for the Applicant:

Clelands

Counsel for the Respondent:

Mr Holland

Solicitors for the Respondent:

David Burrell & Co

ORDERS

In full and final settlement of the parties’ respective applications for settlement of matrimonial property:

IT IS ORDERED AS FOLLOWS:

Within 42 days of the date of these orders the husband transfer to the wife, at the wife’s cost, all of his right title and interest in the property known as and situate at Property B, [B] in the state of South Australia (herein after referred to as “the Property B”).
Within 42 days of the date of these orders the wife transfer to the husband, at the husband’s cost, all of her right title and interest in the property known as and situate at Property A, [A] in the state of South Australia (herein after referred to as “the Property A”).
Concurrently with the transfer of the [B] property to the wife and the [A] property to the husband the parties take all necessary steps and execute all necessary documents to discharge the mortgages secured in favour of the ANZ Bank and the Members Equity Bank standing in their joint names…

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.

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Details

Case: [2014] FCCA 206
Decision Date: 26 February 2014

CaseChat Overview and Summary

This matter concerned applications by the husband and wife for the settlement of their matrimonial property. The court was required to make orders in full and final settlement of these applications.

The court was required to determine how the parties' various assets and liabilities, including real property, a partnership, and superannuation entitlements, should be divided and allocated between them. This involved considering the terms of any agreements reached between the parties and the provisions of the *Family Law Act 1975* (Cth), particularly in relation to superannuation splitting.

The court made orders for the transfer of specific properties between the parties, the discharge of joint mortgages, and mutual indemnities in respect of secured liabilities. It also ordered the dissolution of a partnership, with the wife assigning her interest to the husband, and the husband indemnifying the wife against partnership liabilities. Crucially, the court ordered a splitting of the husband's superannuation in favour of the wife pursuant to section 90MT of the *Family Law Act 1975* (Cth), with specific directions for the nomination of the fund and the operative date of the splitting order. The parties were to retain their respective personal effects, furniture, vehicles, and other specified assets, with all other applications being dismissed.

Orders

Orders of the court

In full and final settlement of the parties’ respective applications for settlement of matrimonial property:

IT IS ORDERED AS FOLLOWS:

Within 42 days of the date of these orders the husband transfer to the wife, at the wife’s cost, all of his right title and interest in the property known as and situate at Property B, [B] in the state of South Australia (herein after referred to as “the Property B”).

Within 42 days of the date of these orders the wife transfer to the husband, at the husband’s cost, all of her right title and interest in the property known as and situate at Property A, [A] in the state of South Australia (herein after referred to as “the Property A”).

Concurrently with the transfer of the [B] property to the wife and the [A] property to the husband the parties take all necessary steps and execute all necessary documents to discharge the mortgages secured in favour of the ANZ Bank and the Members Equity Bank standing in their joint names and secured over the [B] property and the [A] property respectively.

The wife keep the husband indemnified in respect of all liabilities and outgoings secured against the [B] property and keep him indemnified in respect of all monies secured by the jointly held mortgage in favour of the ANZ Bank secured against the [B] property.

The husband keep the wife indemnified in respect of all liabilities and outgoings secured against the [A] property and keep him indemnified in respect all monies secured by the jointly held mortgage in favour of the Members Equity Bank secured against the [A] property.

Concurrently with the transfers of the [B] property and the [A] property referred to in orders one and two hereof and the discharge of the mortgages referred to in orders three and four hereof the husband pay to the wife the sum of twenty two thousand dollars ($22,000.00).

Within 42 days of the date of these orders the parties take all necessary steps and execute all necessary documents to dissolve the partnership known as Mr Nickson & Ms Zimin (hereinafter referred to as “the partnership”) as at 30 June 2013 and have all necessary taxation returns and financial statement prepared and filed as necessary in respect of the partnership at the husband’s sole expense.

The wife assign to the husband all her right title and interest in the partnership including all her interests in any loan accounts standing in her name in the partnership as at 30 June 2013 and the husband keep the wife indemnified in respect of any liability she may have arising out of the partnership.

Pursuant to section 90MT(1)(a) of the Family Law Act, 1975 there be a splitting order, in the sum of twenty-three thousand dollars ($23,000.00), made in the wife favour out of the accumulated superannuation currently standing in the husband’s name and pursuant to section 90MT(4) of the Act a base amount be allocated to the wife out of such superannuation as nominated by the husband according to the provisions of order (10) hereof.

10.

In order to give effect to the order (9) hereof, the husband nominate to the wife’s solicitors the fund out of which he proposes that the aforesaid splitting order be made within 42 days of the date of these orders.

11.

The solicitor for the husband serve a copy of these orders on the Trustee of fund as nominated by the husband pursuant to order (10) hereof by 27 March 2014 and thereafter the aforesaid Trustee has liberty to relist the matter in the event that the trustee is unable to comply with order (9) hereof but otherwise the operative time for the aforesaid splitting order shall be 24 April 2014.

12.

The trustee of the fund nominated by the husband pursuant to order (10) hereof and the wife in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all necessary documents as are required to calculate the payment entitlements of the wife in accordance with order (9) hereof.

13.

As and from the date of this order the husband retain for his sole use and benefit, absolutely free from any further claim or demand of the wife:

(a) all furniture and effects in his possession, power and control;

(b) all motor vehicles in his possession;

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits, subject to the provisions of order (9) hereof;

(e) his personal effects;

(f) the real property situated at [M] registered in his name;

(g) the real property situated at Property G, [G] registered in his name;

(h) all assets of the partnership, including the tractor and the plant and equipment relating to it;

(i) any other real and/or personal property and/or financial resources of the husband in the husband’s name and/or possession not otherwise specified herein.

14.

As and from the date of this order the wife retain for her sole use and benefit absolutely free from any further claim or demand of the husband:

(a) all furniture and furnishings in her possession, power and control;

(b) any motor vehicle in her possession;

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits;

(e) her personal effects.

(f) any other real and/or personal property and/or financial resources of the wife or in the wife’s name and/or possession not otherwise specified herein.

15.

Each party do all things necessary, including executing all necessary documents to give effect to these orders.

16.

Liberty to apply on short notice for any consequential orders needed to give effect to these orders.

17.

All applications 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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