FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Atwater & Segreti [2024] FedCFamC1F 458
File number(s): MLC 14169 of 2023 Judgment of: WILLIAMS J Date of judgment: 9 July 2024 Catchwords: FAMILY LAW – PROPERTY – Interim proceeding – Application by the wife for partial property settlement – Agreement reached as to sale of the former family home, business valuations and attending mediation – Where the husband opposed the partial property settlement unless orders were made providing for payment of outstanding tax liability – What orders are just and equitable – Orders made for payment to the wife as partial property settlement – Orders otherwise made by consent Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Bearup & Bearup (1993) FLC 92-412; [1993] FamCA 72
Furtado & Furtado [2011] FamCA 1018
Harris & Harris (1993) FLC 92-378; [1993] FamCA 49
Strahan & Strahan (2009) FLC 93-466; [2009] FamCAFC 166
Zadenev & Zadenev [2013] FamCA 838
Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 14 June 2024 Place: Melbourne Counsel for the Applicant: Ms Southey Solicitor for the Applicant: John Snodgrass & Associates Counsel for the Respondent: Ms Teicher Solicitor for the Respondent: Taurus Legal Management ORDERS
MLC 14169 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ATWATER
Applicant
AND: MR SEGRETI
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
14 JUNE 2024
THE COURT ORDERS THAT:
Sale of B Street, Suburb C
1.Within 14 days of the making of these orders, the Husband and Wife do all acts and sign all necessary documents to place on the market for sale the property located at B Street, Suburb C (“the Suburb C Property”) in accordance with the following sale protocol:
(a)The Suburb C Property will be listed for sale by private treaty or auction as recommended by the real estate agent with a real estate agent as agreed between the parties, and in default of agreement as to the agent, with such agent as the CEO of the REIV appoints, with the costs of and incidental to such appointment (including advertising costs) to be deferred and paid from the sale proceeds of the Suburb C Property.
(b)The listing price will be as agreed between the parties or, in the absence of agreement, the price nominated as the fair market value thereof by a Valuer appointed by the CEO of the REIV, the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when they fall due.
(c)The parties will each co-operate in every way with the real estate agent, including but not limited to:
(i)Making a key available to the agent;
(ii)Allowing inspection of the property at all reasonable times requested by the agent;
(iii)Doing or saying nothing to hinder or prevent a sale being effected;
(iv)Ensuring that the property including the grounds are in a neat and clean condition at the time of inspection by the agent and…
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- Atwater & Segreti [2024] FedCFamC1F 458
- Case
- [2024] FedCFamC1F 458
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CaseChat Overview and Summary
The central issue was whether the wife was entitled to a partial property settlement of $100,000 and if the husband's opposition to this, contingent on the payment of outstanding tax liabilities, was justified. The court considered the statutory provisions under the Family Law Act 1975, including the principles of fairness and justness, as well as the conduct of the parties. The court found that the wife was entitled to the partial property settlement, as the sale of the family home and other agreements reached between the parties justified this outcome. The court also found that the husband's opposition based on outstanding tax liabilities was not a sufficient ground to withhold the settlement. The court ordered the sale of the family home and the payment of $100,000 to the wife, along with other procedural orders regarding the sale, business valuations, and mediation.
The court ordered that the property located at B Street, Suburb C, be placed on the market for sale within 14 days of the order. The sale proceeds were to be applied to various costs and obligations before the wife received $100,000 as part of her partial property settlement. The court also ordered that the parties engage a forensic accountant to value their respective businesses and attend mediation in September 2024. The court further adjourned the final orders application and set a date for a mention hearing. The form of the order was subject to minor corrections to ensure accuracy and fairness.
Orders
Orders of the court
MLC 14169 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS ATWATER
Applicant
AND:
MR SEGRETI
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
14 JUNE 2024
THE COURT ORDERS THAT:
Sale of B Street, Suburb C
1. Within 14 days of the making of these orders, the Husband and Wife do all acts and sign all necessary documents to place on the market for sale the property located at B Street, Suburb C (“the Suburb C Property”) in accordance with the following sale protocol:
(a) The Suburb C Property will be listed for sale by private treaty or auction as recommended by the real estate agent with a real estate agent as agreed between the parties, and in default of agreement as to the agent, with such agent as the CEO of the REIV appoints, with the costs of and incidental to such appointment (including advertising costs) to be deferred and paid from the sale proceeds of the Suburb C Property.
(b) The listing price will be as agreed between the parties or, in the absence of agreement, the price nominated as the fair market value thereof by a Valuer appointed by the CEO of the REIV, the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when they fall due.
(c) The parties will each co-operate in every way with the real estate agent, including but not limited to:
(i) Making a key available to the agent;
(ii) Allowing inspection of the property at all reasonable times requested by the agent;
(iii) Doing or saying nothing to hinder or prevent a sale being effected;
(iv) Ensuring that the property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers;
(v) Signing all documents requested by the agent in relation to the listing for sale of the property; and
(vi) The Husband and Wife will execute a contract for sale in the form prepared by the conveyancer who shall be appointed by agreement between the parties, and failing such agreement by the wife selecting one of three conveyancers to be proposed by the husband within 7 days of the Husband’s proposal.
2. Within 14 days of execution of the contract of sale for the Suburb C property, the parties do all acts and sign all documents necessary to facilitate the release of the deposit funds for the Suburb C property pursuant to s 27 of the Sale of Land Act 1962 (Vic), such funds to be paid to the Wife be way of part property settlement to Taurus Legal Management Trust account.
3. Upon settlement of the sale of the Suburb C Property, the sale proceeds are to be applied as follows:
(a) To pay costs and commission of sale;
(b) To discharge the mortgage encumbering the property;
(c) To pay the cost of business valuations pursuant to Order 5;
(d) To pay the sum of $100,000 to the Wife by way of part property settlement to Taurus Legal Management Trust Account less any amount received pursuant to Order 2;
(e) The balance to be held on trust by Taurus Legal Management pending written agreement between the parties or an order of the Court.
Subpoenas
4. That the Wife have leave to issue up to ten subpoenas.
Business valuations
5. The parties do all acts and things and sign all documents as may be required to jointly engage a single expert forensic accountant herein for the purpose of valuing the Husband’s business known as D Pty Ltd and the Wife’s business known as E Pty Ltd and such other entity as agreed between the parties, with the cost of the valuations to be paid from the net proceeds of sale of the Suburb C property.
6. For the purpose of Order 5, the Wife propose three forensic accountants and the Husband select one of the three.
Mediation
7. That the parties shall attend a private mediation in September 2024 on a date to be determined and for that purpose, the cost of the Mediator and any venue costs shall be paid by parties equally.
8. For the purpose of Order 7, the Husband propose three mediators and the Wife select one from the three.
9. That no later than 7 days prior to the mediation, the parties shall exchange with each other or if represented, their legal representatives, and the nominated Mediator, copies of:
(a) All relevant Applications, Responses, Affidavits and Financial Statements filed in these proceedings;
(b) Any relevant documents exchanged between the parties;
(c) A Confidential Outline of Case (Dispute Resolution) document;
(d) Copies of any market appraisals or valuations of any asset or financial resource, the value of which is in dispute, and valuations of any superannuation interests; and
(e) A Minute of Orders sought.
AND THE COURT FURTHER ORDERS THAT
10. All applications for final orders be adjourned for hearing before the Hon. Justice Williams on 20 February 2025 at 10.00am as a 2 day matter and that the evidence in chief of all witnesses be given by affidavit.
11. The matter be adjourned to Division 1 of Federal Circuit and Family Court of Australia on 25 October 2024 at 10.00am for Mention Hearing before the Hon. Justice Williams.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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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