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Jacky Campbell, October 2015

Dealing with uncertain liabilities

Recently, the Full Court of the Family Court in Trask & Westlake[1] said that for orders to be “just and equitable” and “appropriate”, they needed to reflect the reasons in the judgment.

This seems obvious, but when a real property is to be sold pursuant to orders, the precise sale price is unknown. In Trask, on the husband’s case, if the two real properties sold for the values he placed on them, the wife could have ended up with 62.8% of the overall pool rather than the 60% which the trial Judge intended – a difference of over $700,000. The principles in Trask appear to be transferrable to the drafting of orders requiring the payment of uncertain liabilities although the Full Court did not state this. For a more detailed discussion of Trask see the article “Full Court prefers formulas in property orders” by Jacky Campbell.

In two recent cases, Elgin & Elgin[2] and Field & Mighell[3] the Full Court of the Family Court considered uncertain liabilities and took different approaches.

Elgin – taxation liability ought to have been taken into account

The Full Court delivered judgment in Elgin & Elgin one week prior to Trask, and said that as the tax liability was uncertain and was to be borne totally by the husband, the orders were not just and equitable.

Justices Thackray & Ryan heard both Elgin and Trask. Justice Murphy agreed with Justices Thackray & Ryan in Trask, but the third Judge in Elgin was Justice May, who did not agree with the other judges on all issues.

The trial Judge ordered that the pool of about $44 million be divided equally between the parties. However, under the orders the husband bore all the tax consequences of the implementation of the orders including a tax liability of about $4.9 million.

The husband in Elgin did not seek any order for a mechanism to take into account the uncertain tax liability. By contrast, the husband at trial in Trask submitted that the potential difference between the agreed values and the possible sale prices should be taken into account by specifying a percentage to be applied to the net proceeds of sale after deduction of specified expenses. On appeal, the husband in Trask argued that the form of the trial Judge’s orders was “contrary to principle” as they did not take into account the potential difference between values and sale prices.

The wife in Elgin originally proposed a form of indemnity in her favour which did not mention tax. After the trial concluded, the wife proposed an order that expressly sought that she receive an indemnity for tax. The trial Judge made orders which generally followed the wording proposed by the wife. He said that the orders were “appropriate” but did not explain why it was appropriate that the husband assume responsibility for all the taxation consequences associated with the implementation of the orders.

On appeal, the wife submitted that the trial Judge had no obligation to consider the tax consequences of his orders unless asked to do so, since otherwise His Honour would be “intruding upon or making assumptions about decisions made by the parties and their representatives with respect to how their respective cases are to be conducted”.

The husband submitted that it was the trial Judge’s obligation to be satisfied that all of his orders, including the taxation indemnity, were just and equitable. The trial Judge could not be so satisfied when faced with the unchallenged and unequivocal statement of the single expert that the taxation consequences ”must be considered”.

The Full Court majority agreed with the husband that the trial Judge could not be satisfied that the orders were just and equitable:

“In the absence of evidence about the amount of the tax; in the absence of submissions relating to the tax; and in the absence of any reason for leaving the husband responsible for all the tax, we consider it was impossible for His Honour to be satisfied that his orders were just and equitable. Given the unfortunate way the matter had been conducted, we consider it was essential for the parties to have been given an opportunity to make submissions about the proposed form of orders, and the way in which the taxation burden would be shared, in order to bring about the intended equal division of the assets”[4]

May J agreed with the majority that it was not just and equitable to uphold orders that did not take into account a significant taxation consequence and required that the husband be responsible for the payment. Such an order could not be said to be “just and equitable”.

Elgin – effect of delay

In Elgin, as in Trask, there was also the issue of the long delay until the delivery of the judgment. Although the trial concluded in July 2012, the closing written submissions were not completed until October 2012. As a result of the judgment of the High Court in Stanford v Stanford[5], further submissions were filed, the last of which were received in September 2013. Judgment was then delivered in January 2014. In the meantime, the matter was mentioned twice before the trial Judge. The Full Court also admitted that it had taken a lengthy period of time to deliver its own judgment having heard the appeal in August 2014 and not delivered judgment until 12 months later.

The Full Court accepted that in many cases there was likely to be a fluctuation in values if there was a long delay from trial to judgment, but such fluctuations can also occur in a short period. Ultimately it was for the parties to alert the Court to such changes, rather than having the judge second-guess whether there may have been some fluctuation. Nevertheless, it considered it was good practice to give the parties some notice of when a long delayed judgment is to be delivered so the parties can consider whether to apply to reopen. Here, such notice was given but the parties did not seek to re-open. May J, dissenting on this point, noted that the parties had sophisticated legal teams and it was not the responsibility of the trial judge to ask the parties if they would like to re-open the evidence because of the delay in delivering judgment and the possibility that values had changed.

The Full Court’s approach in Trask of drafting orders in a formulaic form would, of course, in most cases where there has been a lengthy delay, obviate the necessity to apply to re-open the case.

Elgin – outcome

May J held that it was in the interests of justice to remit the matter for rehearing on the issue of the taxation liability. However, she said the re-hearing should be limited to an assessment of the parties’ net worth (i.e. the net assets including taxation liabilities and cost of distribution of assets) on the basis that the determination of the trial Judge that the property of the parties be divided equally not be disturbed. She understood that this process would involve further valuations and considerable cost to the parties. There might be controversy as to values and likely liabilities incurred by reason of taxation and the disposition of assets, but these would be matters for the trial Judge to determine.

The husband proposed a re-hearing at which he would be free not only to agitate the issues raised in the appeal, but also his original claim for much more than half of the assets.

Thackray and Ryan JJ refused to remit the matter for re-trial. They re-exercised their discretion relating to the taxation liabilities and made orders to bring about what they considered to be a just resolution based upon acceptance of the proposition that the tax should be borne in the same proportions as the assets which were to be divided. They saw that this proposition had merit, since the husband should not have to pay more of the tax than the wife given that the property pool was to be divided equally.

Field & Mighell – uncertain child support liability

In contrast to Elgin, in Field & Mighell, a Full Court comprising Faulks CJ, Ainslie-Wallace and Bennett JJ held that the uncertainty about a child support liability in Mexico was not a barrier to the trial Judge determining the parties’ entitlements under s 79 Family Law Act. The dispute about arrears of child support amounted to a potential liability of the husband to the wife of about AU$400,000.

Faulks CJ said:

“While there can be no doubt that either the receipt of or the payment of such a debt might alter the way in which the division of property between the parties might be considered, without any evidence, His Honour was in an invidious position. His Honour was right in determining that it was not to form part of the pool of property of the parties”[6]

The trial Judge took account of the fact that the conclusion of the various proceedings in Mexico which had been on foot since 2003 could take another 18 months. The trial Judge and Faulks CJ recognised that the outcome of the Mexican proceedings might have an effect on the division of property in Australia as the wife would have extra funds available to her and the husband would have another liability. These matters might affect the trial Judge’s determination of factors under s 75(2). Faulks CJ said it was not the case that a trial Judge was obliged to do more than determine the issues before him or her on the basis of the evidence properly presented by the parties. He said:

“If the parties want a wall built, they need to supply the bricks. Given that the outcome of the child support proceedings in Mexico were not capable of being definitively forecast, short of adjourning the proceedings generally until matters in Mexico had been completed, it is hard to know what his Honour might otherwise have done in these proceedings”[7]

At an earlier hearing, the trial Judge was inclined to order an adjournment under s 79(5) Family Law Act until the liability was certain. His earlier views were quoted by Ainslie-Wallace and Bennett JJ:

“It is self evidently utterly unsatisfactory that such a significant liability should not be included in the pool of assets and liabilities of the parties, but in circumstances where it is vividly contested and the outcome of that contest remains wholly unclear, there is simply no other alternative than to delay the final outcome of these proceedings on an indefinite basis until the Mexican proceedings are determined”[8]

However, between the date of the earlier hearing, 9 months previously, and the date of making final property orders, the trial Judge concluded that despite his statements above, it was not appropriate to delay completion of the matter until the child support proceedings were finalised. He commented that the Mexican proceedings seemed likely to go on indefinitely and he wondered whether they would ever finish. The Full Court concluded that the trial Judge’s approach was appropriate given the state of the evidence before him.

Conclusion

The two cases of Elgin & Elgin and Field & Mighell demonstrate different ways of dealing with uncertain liabilities. Whilst Field & Mighell is a rare example of a case in which an uncertain liability was ignored, Elgin & Elgin fits neatly with Trask & Westlake. The orders could and should have been drafted in such a manner that the impact of the uncertain tax liability did not fall entirely on the husband. This would have ensured that the integrity of percentage split of assets between the parties which the court had determined to be just and equitable was maintained.

 

 

© Jacqueline Campbell and Wolters Kluwer, CCH

[1]    (2015) FLC 93-662

[2]    [2015] FamCAFC 155

[3]    [2015] FamCAFC 32

[4]    at para 203

[5]    (2012) FLC 93-518

[6]    at para 14

[7]    at para 46

[8]    at para 169

Jacky Campbell

Partner

University qualifications

Master of Laws, Monash University

Bachelor of Laws, Monash University

Bachelor of Arts, Monash University

Graduate Diploma of Professional Writing, Deakin University

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Email Jacky Campbell
jcampbell@fortefamilylawyers.com.au

Connect on LinkedIn

Publications
To read Jacky Campbell’s articles and papers click here.

In 2020, Jacky was recognised as a leading family lawyer in Melbourne by Doyle’s Guide to the Australian Legal Market as well as one of Melbourne’s leading family lawyers in High-value and Complex Property matters, and a recommended lawyer in parenting matters. Jacky was also a recommended lawyer in the Doyle’s leading family and divorce lawyers in Australia. Jacky writes extensively on complex aspects of family law and her up-to-date knowledge means that she is able to provide accurate information about the law. She combines this with offering strategic advice to clients and guidance as to the best approach to take in their particular circumstances.

Jacky wrote her Masters thesis on the relationship of bankruptcy and family law. She continues to have a special interest in matters involving bankruptcy, insolvency, liquidation and receivership.

Jacky received the Law Institute of Victoria Rogers Legal Writing Award 2004—for the article “Splitting the Super…and Selling the Home”. She is experienced with complex superannuation interests such as defined benefit funds and self managed superannuation funds.

Jacky is the consultant editor of Wolters Kluwer/CCH Australian Family Law and Practice and contributing author to Wolters Kluwer/CCH Australian Family Law and Practice to the Property, Spousal Maintenance, Financial Agreements, Maintenance Agreements, Procedure and Precedents tabs. She writes several chapters of the Wolters/Kluwer CCH Australian Master Family Law Guide, and is the author of the family law chapters in the Thomson-Reuters Australian Financial Planning Handbook and in the CCH Australian Master Superannuation Guide.

Jacky is a Fellow of the International Academy of Family Lawyers, a board member of the Asia Pacific Chapter of that Academy, and an Associate of the American Bar Association. She acts for many clients who are overseas or where there is an international element such as overseas assets and international child abduction under the Hague Convention. She is also experienced in Australian and overseas surrogacy arrangements and in disputes about the role of a sperm donor. She is a member of the Maintenance and Property Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Jacky is keen to assist clients to resolve matters before trial through alternative dispute resolution processes including mediation. She is a trained arbitrator and is an arbitrator with The Alternative Courtroom.

Wendy Kayler-Thomson

PARTNER

University qualifications

Master of Laws, Monash University

Bachelor of Laws, University of Melbourne

Bachelor of Commerce, University of Melbourne

Other qualifications
Accredited Family Law Specialist, Law Institute of Victoria

Email Wendy Kayler-Thomson
wkaylerthomson@fortefamilylawyers.com.au

Connect on LinkedIn

Wendy Kayler-Thomson is a partner of Forte Family Lawyers and has practised as a lawyer specialising in family law for more than 25 years. Wendy is recognised as one of Melbourne’s leading family lawyers in Doyle’s 2020 Guide to the Australian Legal Market.

Wendy is the Immediate Past Chair of the Family Law Section of the Law Council of Australia, the peak body for Australian family lawyers, and has been a member of the Executive of the Family Law Section for more than 10 years. The Family Law Section is regularly consulted by the Federal government and the Courts about changes to family law and court procedures. As a result, Wendy is able to offer her clients the most up to date advice on family law and strategies to take advantage of future changes.

Wendy’s time as Chair of the Family Law Section (from 2016 to 2018) coincided with a period of great controversy and unprecedented attention on the reform of family law and the family law system. This included the Victorian Royal Commission into family violence, the Federal Parliamentary enquiry into the family law system and family violence, the Australian Law Reform Commission’s Family Law Review and the Federal Government’s proposal to restructure the Family Court and Federal Circuit Court.

Wendy was a member of the Advisory Committee to the Australian Law Reform Commission’s Family Law Review, the most comprehensive review of family law and the family law sector in 40 years.

Wendy was also a member of the Advisory Committee to the Law Council of Australia’s 2018 Justice Project, chaired by former High Court of Australia Chief Justice, the Hon. Robert French. The Justice Project is one of the most comprehensive, national reviews into the state of access to justice in Australia in the past 40 years.

Wendy develops close and trusted relationships with her clients and the wide network of professionals that refer her work. Wendy’s approach is tailored to each individual client’s needs, recognising that for most people, the breakdown of a relationship is one of their most stressful and challenging experiences. Wendy brings a high attention to detail, strategic advice and a depth of expert knowledge about family law. Wendy has a commercial background and has acted for many clients with complex financial arrangements. She works closely with her clients’ accountants and other professional advisors to ensure that all the complexities of those arrangements, including tax impacts and restructuring, are dealt with as part of any settlement.

Wendy has undertaken extensive training in a wide range of social sciences that impact on families and their children, including family and domestic violence, parental alienation, personality disorders, drug and alcohol addiction and high conflict. Wendy’s clients benefit from her knowledge of the most up to date approaches by child psychologists and other experts to managing the post-separation care arrangements of children. Wendy has particular expertise in cases where one parent wants to relocate with the children interstate or overseas.

Wendy is also a member of the Executive Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia, the Association of Family and Conciliation Courts, the Australian Institute of Family Law Arbitrators and Mediators and Victorian Women Lawyers.

Jemma Mackenzie

Senior Associate

University qualifications

Bachelor of Laws (Hons) Monash University
Bachelor of Arts (Hons) Monash University

Email Jemma Mackenzie
jmackenzie@fortefamilylawyers.com.au

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Connect on LinkedIn

Jemma is a Senior Associate at Forte Family Lawyers. She has worked predominantly in family law since being admitted to legal practice in December 2009.

Jemma obtained Specialist Accreditation as a Family Lawyer from the Law Institute of Victoria in 2015. Accreditation recognises the high level of knowledge and practical skills Jemma brings to each family law matter.

Jemma is mindful that the breakdown of a marriage or de facto relationship can be a stressful and often overwhelming experience for clients. She works with her clients to identify appropriate pathways for resolving both parenting and property matters.

Jemma prides herself on her ability to effectively communicate what can be complex legal principles and to provide realistic, up to date and accurate legal advice at each stage of a matter.

Jemma has experience in a wide variety of family law matters including division of property, maintenance (including urgent applications), Financial Agreements (including Agreements made prior to marriage), care and living arrangements for children, child support and family violence – including Intervention Order proceedings.

Prior to joining Forte Family Lawyers, Jemma worked in a Bayside family law firm and a boutique firm in Melbourne’s eastern suburbs. She has conducted litigation in both the Family Court of Australia and Federal Circuit Court in Melbourne and interstate.

In addition to her daily work with clients, Jemma has made presentations to financial advisors and medico-legal professionals about the family law system in Australia and what clients should know about family law prior to separating.

Jemma is a member of Victorian Women Lawyers, the Family Law Section of the Law Council of Australia and the Family Law Section of the Law Institute of Victoria.

Kristy Haranas

Senior Associate

University qualifications

Bachelor of Laws, James Cook University

Email Kristy Haranas
kharanas@fortefamilylawyers.com.au

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Connect on LinkedIn

Kristy is a Senior Associate at Forte Family Lawyers. Kristy is an Accredited Family Law Specialist as recognised by the Law Institute of Victoria. Accredited Specialists are required to maintain a high degree of continuing professional development to ensure their advice is based on the most current legal principles and to the highest possible standard. Kristy was recognised in the 2020 edition of Doyles Guide as a Family Law Rising Star.

Kristy has undertaken further tertiary study in the area of family law and has a Masters of Applied Law (Family Law) from the College of Law.

Prior to joining the firm, Kristy worked in a range of practice areas including several years in family law in Queensland. Kristy also worked a lawyer for the Australian Securities and Investments Commission on large-scale financial investigations. During her time at AISC Kristy gained valuable commercial experience and developed a high level of attention to detail which she now applies to her work in family law financial cases.

Kristy has a wide range of experience in different areas of family law including parenting issues, property settlements (including complex matters with multifaceted trust/corporate structures), financial agreements, child support and family violence cases.

Kristy prides herself on building strong relationships with clients from the outset. Kristy recognises that for most people, the breakdown of a relationship can result in stress, conflict and confusion. As a result, Kristy ensures that clients receive not only strategic and commercially focused legal advice, but empathy and compassion. Kristy has strong communication skills which she uses to confidently guide clients through what can sometimes feel like a complicated legal system.

Kristy is a member of the Courts Practice Committee of the Family Law Section of the Law Institute of Victoria which provides her with valuable insight into recent developments in the Family Law Courts. Kristy is also a member of the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Matthew Beckmans

Senior Associate

University qualifications

Bachelor of Laws, University of Western Sydney

Email Matthew Beckmans
mbeckmans@fortefamilylawyers.com.au

Connect on LinkedIn

Matthew commenced his legal career practising in a medium-sized rural law firm. Matthew is able to draw on his broad experiences over a number of practice areas, prior to practising exclusively in family law, to offer clients a well-rounded approach to tactically resolve complex legal issues.

Matthew has developed a special interest in complex disputes involving companies and trusts, insolvency and bankruptcy, taxation, and international/domestic relocation.  He also has a particular expertise in child support.

Matthew is aware and mindful of the financial challenges and restraints when attempting to resolve family law disputes, and sets out to achieve negotiated and cost effective outcomes which avoid court where possible. Matthew recognises the emotional issues attached to the breakdown of a relationship, and draws on his strong communication skills in demystifying the family law process, and to identify and explain possible options for resolution in a concise manner.

Matthew was a member of the steering committee of the Riverina Family Law Pathways Network, secretary of the South West Slopes Law Society, and a mock trial magistrate for the Law Society of New South Wales.

Prior to practising law, Matthew was rookie listed by the Sydney Swans, where he enjoyed a brief career.  He now plays for the Monash Blues in the VAFA.

Matthew is a member of the Family Law Sections of the Law Council of Australia and the Law Institute of Victoria.  He is on the Court Practice Committee of the Family Law Section of the Law Institute of Victoria.

Vinh Nguyen

Associate

University qualifications

Bachelor of Laws, Deakin University

Bachelor of Commerce, Deakin University

Email Vinh Nguyen
vnguyen@fortefamilylawyers.com.au

Connect on LinkedIn

Vinh first worked at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2017. He joined Forte Family Lawyers as a lawyer after his admission into legal practice in October 2017 and has, since then, worked solely in family law.

Prior to his admission as a lawyer, Vinh worked as a paralegal in a community legal centre and in a property and commercial law firm, where he gained valuable experience in property transactions.

Vinh is a member of the Family Law Section of the Law Council of Australia, the Law Institute of Victoria and the Asian Australian Lawyers’ Association. Vinh also volunteers at the Darebin Community Legal Centre.

Vinh is fluent in Vietnamese.

 

 

 

Natasha Mastroianni

Associate

University Qualifications

Bachelor of Laws (Hons), Latrobe University

Bachelor of Arts, Latrobe University

Masters of Applied Law (Family Law), College of Law

Email Natasha Mastroianni

nmastroianni@fortefamilylawyers.com.au

 

 

Connect on LinkedIn

Natasha Mastroianni has experience in a range of family law matters, including property settlements, financial agreements, parenting matters (including interstate and overseas relocation issues), child support and intervention order proceedings.

Natasha was admitted to practice in August 2014 and commenced her career in a generalist practice where she gained experience in family law, property law, wills and estates. Natasha worked in a boutique family law practice prior to commencing at Forte in February 2020.

Natasha has a Masters of Applied Law (Family Law) from the College of Law and speaks conversational Italian.

Having practical experience in other areas of law assists Natasha to understand the interrelated issues involved in her clients’ family law matters. She regularly appears on behalf of clients at Duty List Hearings and other Court events in the Federal Circuit Court, Family Court of Australia and the Magistrates’ Court of Victoria. Natasha also appears as a solicitor agent for interstate or rural practitioners when required.

Natasha prides herself on being able to understand and manage her clients’ expectations whilst providing realistic and practical advice. She acts with empathy and compassion when striving to achieve the best possible results for her clients.

Natasha is a volunteer lawyer with the Women’s Legal Service and is the Vice President of the Northern Suburbs Law Association. She is also a member of the Courts Practice Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Mark Di Donato

Lawyer

University Qualifications

Bachelor of Criminology and Justice, Navitas College of Public Safety

Juris Doctor, Monash University

Email Mark Di Donato

mdidonato@fortefamilylawyers.com.au

Connect on LinkedIn

Mark started work at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2019. Mark was later admitted into the legal practice in September 2019 and transitioned into a lawyer role with Forte Family Lawyers in February 2020.

Prior to his admission as a lawyer, Mark volunteered as a paralegal at Darebin Community Legal Centre and interned at a commercial law firm, where he gained valuable experience in property transactions and in intellectual property. Mark also completed a Professional Placement whilst completing his law degree where he provided legal advice on various family law matters through the Monash Law Clinic.

Mark is a member of the Family Law Section of the Law Council of Australia, and the Law Institute of Victoria. Mark volunteers at the Darebin Community Legal Centre and has provided advice on a range of issues including family law.