FAMILY COURT OF AUSTRALIA
| BABROW & RACKLEY | [2010] FamCA 508 |
| FAMILY LAW – PROPERTY – Just & equitable – Add-backs – Tracing |
| Family Law Act 1975 (Cth) ss 75(2), 79(1), 79(4) |
| Baldachino & Hanas [2010] FamCA 234 C & C [2005] FamCA 429 Cabbell & Cabell [2009] FamCAFC 205 Farnell & Farnell (1996) FLC 92-681 Gollings & Scott (2007) FLC 93-319 Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC 92-144 Miller & Miller [2009] FamCAFC 121 NHC & RCH (aka Chorn & Hopkins) [2004] FamCA 633 Norman & Norman [2010] FamCAFC 66 Omacini & Omacini (aka AJO & GRO) (2005) FLC 93-218 Pierce & Pierce (1999) FLC 92-844 Pittman & Pittman [2010] FamCAFC 30 Townsend and Townsend (1995) FLC 92-569 |
| APPLICANT: | Mr Babrow |
| RESPONDENT: | Ms Rackley |
| FILE NUMBER: | CAC | 1164 | of | 2008 |
| DATE DELIVERED: | 24 June 2010 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATES: | 11 – 12 June 2009 22 October 2009 19 – 20 November 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr D. Farrar & Mr G. Howard (22 October 2009 only) |
| SOLICITOR FOR THE APPLICANT: | Farrar Gesini & Dunn |
| SOLICITOR FOR THE RESPONDENT: | Self‑represented litigant |
Orders
IT IS ORDERED THAT:
Within seven (7) days, the husband and the wife shall do all things necessary to cause the proceeds of the sale of the property located at H in the Australian Capital Territory, held by the joint conveyancing solicitor Colquhoun Murphy, to be paid to the husband and the wife as to the following amounts:
(a)The sum of two hundred and twenty five thousand, seven hundred and twenty seven dollars ($225,727) to the husband; and
(b)The sum of ninety nine thousand, three hundred and sixty nine dollars ($99,369) to the wife; and
(c)The balance of any interest which has accumulated on the sum of $325,096.25 which was originally held on trust will, after payment of the sums identified in (a) & (b) above, be paid to the husband and the wife in equal shares.
Service of this order by the husband’s solicitors on Colquhoun Murphy will constitute sufficient authority to make the necessary payments identified in order (1).
Within thirty days (30), the husband and the wife shall do all things and sign all documents necessary to sell the jointly owned A timeshare and to that end, the wife shall provide her written authority for the husband to advertise the timeshare for sale on the internet and the wife shall pay the husband fifty per cent (50%) of the costs of sale including the advertising fee from her share of the sale proceeds.
(a)Upon the sale of the A timeshare, the husband the wife shall cause the balance of net proceeds to be divided equally between the husband and the wife .
If either party should fail within…
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CaseChat Overview and Summary
The court was required to determine the specific distribution of proceeds from the sale of a jointly owned property in the Australian Capital Territory, as well as the sale of a jointly owned timeshare. Further issues included the division of accumulated interest on funds held on trust, the allocation of specific personal items between the parties, and the division of superannuation interests. The court also needed to address the mechanism for enforcing compliance with its orders, particularly in relation to the sale of property and the transfer of superannuation.
The court ordered the net proceeds from the sale of the ACT property to be paid to the husband and wife in specified amounts, with any accumulated interest to be divided equally. The parties were directed to sell their jointly owned timeshare, with the wife to provide authority for the husband to advertise it online and to contribute 50% of the sale costs from her share of the proceeds; the net proceeds were to be divided equally. The court also appointed a Registrar of the Family Court of Australia to execute documents or perform actions on behalf of a party who failed to comply with the sale orders within the stipulated timeframes, pursuant to section 106A(1) of the *Family Law Act 1975* (Cth). Specific personal items were to be made available by the husband for the wife's collection at her expense. Each party was declared the owner of all property in their possession or control, including their respective superannuation interests, and the husband was directed to take steps to roll over his interest in the E Superannuation Self-Managed Fund. All extant applications were discharged, except for those relating to costs, with written submissions to be filed by a specified date.
Orders
Orders of the court
IT IS ORDERED THAT:
1.
Within seven (7) days, the husband and the wife shall do all things necessary to cause the proceeds of the sale of the property located at H in the Australian Capital Territory, held by the joint conveyancing solicitor Colquhoun Murphy, to be paid to the husband and the wife as to the following amounts:
(a) The sum of two hundred and twenty five thousand, seven hundred and twenty seven dollars ($225,727) to the husband; and
(b) The sum of ninety nine thousand, three hundred and sixty nine dollars ($99,369) to the wife; and
(c) The balance of any interest which has accumulated on the sum of $325,096.25 which was originally held on trust will, after payment of the sums identified in (a) & (b) above, be paid to the husband and the wife in equal shares.
2.
Service of this order by the husband’s solicitors on Colquhoun Murphy will constitute sufficient authority to make the necessary payments identified in order (1).
3.
Within thirty days (30), the husband and the wife shall do all things and sign all documents necessary to sell the jointly owned A timeshare and to that end, the wife shall provide her written authority for the husband to advertise the timeshare for sale on the internet and the wife shall pay the husband fifty per cent (50%) of the costs of sale including the advertising fee from her share of the sale proceeds.
(a) Upon the sale of the A timeshare, the husband the wife shall cause the balance of net proceeds to be divided equally between the husband and the wife .
4.
If either party should fail within thirty (30) days after the periods stipulated in Order (1) and (3) above (on the certification in writing by either party or by their legal representatives that the other party has so failed) to execute (or sign) any document or to perform any action required in relation to such sale(s), then pursuant to s 106A(1) of the Family Law Act 1975 (Cth) a Registrar of the Family Court of Australia is appointed to sign such documents or perform such action in the stead of the party that has failed to comply.
5.
Within seven (7) days the husband will make available for collection by the wife at her expense, the following items:
(a)
(i) Black Kinetix pants;
(ii) 2 x grey book cases;
(iii) 6 x boxes of books;
(iv) 2 x Merkabas – red and gold;
(v) Conversations with God book; and
(vi) Conversations with God CD.
(b) If the husband has the following items, he shall make them available to the wife to collect with the items referred in (a) directly above:
(i) Brown blanket;
(ii) Coloured mattress;
(iii) CDs (Celestial Prophecies, Queen and CD cover to Goodbye Vietnam) and case cover Wet Skin Material;
(iv) Other books belonging to the wife that were at P Corp prior to separation;
(v) Three Jain books; and
(vi) Pindari Herb Farm notes.
6.
Otherwise, each of the parties be and is hereby declared to be the owner both at law and in equity of all the property in his or her possession or control, including their respective superannuation interests. To this end, the husband and the wife shall, in their capacity as the trustee of the E Superannuation Fund, do all things and sign all documents necessary within fourteen (14) days of the date of these Orders to cause and enable the husband to rollover his membership interest in the E Superannuation Self‑managed Fund into another complying superannuation fund.
7.
That all extant applications are discharged, save as to the any application the parties may wish to make in relation to the question of costs. To this end, the parties will file on or before 4.00 pm on 8 July 2010 written submissions about the question of costs. It is noted that this discrete component will be determined by his Honour in Chambers after considering the written submissions.
8.
The matter is otherwise removed from the Pending Cases Inventory.
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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