Allport and Allport

Case [2015] FCCA 1053


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
Bevan v Bevan [2013] FamCAFC 116; (2013) FLC 93-545
Bevan & Bevan (No.2) [2014] FamCAFC 19; (2014) FLC 93-572
Black & Kellner (1992) FLC 92-287; 15 Fam LR 343
Chang & Su [2002] FamCA 156
NHC & RCH (2004) FLC 93-204
Guinti and Giunti (1986) 11 Fam LR 160; (1986) FLC 91-759
Hickey v Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; (2003) FLC 93-143
In the Marriage of Briese (1985) 10 Fam LR 642; (1986) FLC 91-713
In the Marriage of Crapp and Crapp (No.2) (1979) 5 Fam LR 47; (1979) FLC 90-615

In the Marriage of Ferraro (1992)16 Fam LR 1; (1993) FLC 92-335
In the Marriage of Olliver (1978) 4 Fam LR 360; (1978) FLC 90-499
In the Marriage of Pierce (1998) 24 Fam LR 377; (1999) FLC 92-844

Jong & Yeng [2014] FamCAFC 156
Livesey v Jenkins [1985] All ER 106
Norbis & Norbis (1986) 161 CLR 513; (1986) 10 Fam LR 819; [1986] FLC 91-712
AJO & GRO (2005) 33 Fam LR 134
Oriolo v Oriolo (1985) 10 Fam LR 665; [1985] FLC 91-653
Rockman & Rockman [2014] FCCA 1966
Stanford v Stanford [2012] HCA 52
Warne & Warne (1982) 8 Fam LR 388
Weir & Weir (1993) FLC 92-338; (1992) 16 Fam LR 154

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

  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…

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AGLC
Allport and Allport [2015] FCCA 1053
Case
[2015] FCCA 1053
Decision Date

CaseChat Overview and Summary

In the matter of *Allport and Allport*, Judge Monahan of the Federal Circuit and Family Court of Australia made orders concerning the property settlement between the husband and wife. The dispute involved the division of matrimonial assets, including the former matrimonial home and superannuation interests, and the wife's claim for spousal maintenance.

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

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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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