FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALLPORT & ALLPORT | [2015] FCCA 1053 |
| Catchwords: FAMILY LAW – Property – final orders – contributions – future needs – whether there should be any adjustment for section 75(2) factors – lump sum spousal maintenance application. |
| Legislation: Family Law Act 1975, ss.72, 74, 75, 79, 80, 81 Federal Circuit Court Rules2001, reg.24.03 |
| Babett & Falconer [2015] FamCAFC 194 In the Marriage of Ferraro (1992)16 Fam LR 1; (1993) FLC 92-335 Jong & Yeng [2014] FamCAFC 156 Z & Z [2005] FamCA 996; (2006) Fam LR 296; [2005] FLC 93-241 |
| Applicant: | MR ALLPORT |
| Respondent: | MS ALLPORT |
| File Number: | SYC 6718 of 2012 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 4, 5 and 6 August 2014 |
| Date of Last Submission: | 16 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Campton SC |
| Solicitors for the Applicant: | Austin & Giugni |
| Counsel for the Respondent: | Mr G Gould |
| Solicitors for the Respondent: | Forsters Solicitors |
ORDERS
Within 42 days, the husband pay to the wife the sum of $382,417.00 with interest to accrue thereafter as prescribed by the Rules (“the Sum”).
In default of payment of the Sum within 90 days from the date of these Orders, the parties forthwith do all acts and things and execute all documents necessary to sell the property situated at Property Y being the land contained in Folio Identifier Lot (omitted) (“the former matrimonial home”) as agreed or, failing agreement within a further 14 days as to the sale process (including the appointment of a real estate agent and conveyancing solicitor) the parties forthwith do all acts and things to cause where applicable:
(a)the President of the Real Estate Institute of New South Wales or his or her nominee to nominate an agent who will…
Continue reading Allport and Allport
Sign in free to access the full text
- AGLC
- Allport and Allport [2015] FCCA 1053
- Case
- [2015] FCCA 1053
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate distribution of the parties' property, including the former matrimonial home and the husband's superannuation fund. Specifically, the court needed to decide on the quantum of the financial settlement to be paid by the husband to the wife, the mechanism for the sale of the former matrimonial home in the event of default, and the division of the husband's superannuation interests. The court also considered the wife's application for lump sum spousal maintenance.
Judge Monahan ordered the husband to pay a sum of $382,417.00 to the wife within 42 days. In default of this payment, the former matrimonial home was to be sold, with the proceeds to be applied first to sale costs, then to the payment of the sum to the wife, and the remainder to the husband. The court also ordered a splittable payment of $315,000.00 from the husband's superannuation fund to the wife, pursuant to section 90MT(1)(a) of the *Family Law Act 1975*. The wife's application for lump sum spousal maintenance was dismissed. The orders also stipulated that each party would retain their own chattels, debts, and other assets not specifically addressed, and that the Registrar of the Court could execute documents if a party failed to do so.
Orders
Orders of the court
1.
Within 42 days, the husband pay to the wife the sum of $382,417.00 with interest to accrue thereafter as prescribed by the Rules (“the Sum”).
2.
In default of payment of the Sum within 90 days from the date of these Orders, the parties forthwith do all acts and things and execute all documents necessary to sell the property situated at Property Y being the land contained in Folio Identifier Lot (omitted) (“the former matrimonial home”) as agreed or, failing agreement within a further 14 days as to the sale process (including the appointment of a real estate agent and conveyancing solicitor) the parties forthwith do all acts and things to cause where applicable:
(a) the President of the Real Estate Institute of New South Wales or his or her nominee to nominate an agent who will then determine the method and terms of sale, including the sale price; and/or
(b) the President of the Law Society of NSW or his or her nominee to nominate a solicitor who will have the carriage of sale;
and the parties forthwith jointly instruct the relevant real estate agent and/or conveyancing solicitor.
3.
At the settlement of the sale of the former matrimonial home, the proceeds be distributed in the following order and priority:
(a) in payment of the real estate agent’s commission, conveyancing costs and other reasonable costs of sale;
(b) in payment of the Sum to the wife;
(c) in payment of the remainder to the husband.
4.
Simultaneously upon receipt of the Sum pursuant to either paragraph 1 or 3 herein, the wife vacate the former matrimonial home and do all acts and execute all documents necessary to transfer to the husband her entire right title and interest in the former matrimonial home.
5.
Until the wife vacates the former matrimonial home she will maintain it in the same condition as at the date of these orders.
6.
Pursuant to s.90MT(1)(a) of the Family Law Act 1975 (“the Act”), the wife receive a splittable payment in the amount of $315,000.00 with the husband to cause the Trustee of the Mr Allport Superannuation Fund to cause such splittable payment to be paid to a separate superannuation account of the wife and, as a consequence, there be a corresponding reduction in the entitlement the husband would have had but for these Orders.
7.
The operative date for the s.90MT(1) order shall be the fourth (4th) business day after the day on which a sealed copy of these Orders is served on the trustee of the fund.
8.
The husband is restrained from doing any act or thing which would prevent the wife receiving the benefit in the fund to which she is entitled pursuant to these Orders.
9.
Until such time as the superannuation split to the wife pursuant to these Orders can be rolled over onto a separate account of the wife, the husband and the trustee are restrained from taking any step to de-value the wife’s interest in the fund.
10.
Unless otherwise specified in these Orders:
(a) each party be solely entitled to all chattels, goods, motor vehicles, furniture, furnishings and any other property in the possession of such party as at this date;
(b) each party be solely entitled to any moneys, shares and debentures which stand in such party’s name as at this date;
(c) each party be solely entitled to any superannuation benefits held in such party’s name and each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other; and
(d) each party be solely liable for and indemnify the other against any debt, loan or liability whatsoever held in such party’s name as at this date.
11.
Each party do all such things including the signing of all documents to give effect to these Orders.
12.
In the event that either party refuses or neglects to execute any deed or instrument that may be required to give effect to these Orders, the Registrar of the Court be appointed pursuant to s.106A of the Act to execute such deed or instrument in the name of such party or parties and do all acts necessary to give validity to the operation to the deed or instrument.
13.
The wife’s application for lump sum spousal maintenance be dismissed.
14.
All extant applications before this Court be otherwise dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.