Bancroft and Bancroft

[2010] FamCA 1154

FAMILY COURT OF AUSTRALIA

BANCROFT & BANCROFT [2010] FamCA 1154

FAMILY LAW – PROPERTY – Consent subject to Trustee of superannuation fund being accorded procedural fairness

Family Law Act 1975 (Cth)

In the Marriage of Clauson [1995] FLC 92-595

APPLICANT: Mr Bancroft

RESPONDENT: Ms Bancroft

INDEPENDENT CHILDREN’S LAWYER: Mr Williams

FILE NUMBER: BRC 7907 of 2010

DATE DELIVERED: 8 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 8 December 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fuenzalida of McCarthy Durie Ryan Neil Solicitors

SOLICITOR FOR THE RESPONDENT: Ms Donelly of New Way Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Mr Williams of Williams Lawyers

Orders

IT IS ORDERED THAT

1. The matter is adjourned to the Magellan Registrar at 11.00am on 16 March 2011, for the making of all such directions as might be necessary for the further progress of this matter, including, if considered appropriate, directions for final hearing of this matter, and that unless otherwise ordered by the Registrar, such hearing shall be conducted by telephone.

2. The Independent Children’s Lawyer is granted leave to issue subpoenae to the Department of Communities (Child Safety Services) and to the Queensland Police Service, and that unless otherwise ordered, leave is granted to all parties to inspect and to the Independent Children's Lawyer alone to copy all documents produced pursuant to subpoenae in this matter, save any document in respect of which objection to either inspection or copying is made, in which case an application is to be brought before Justice Murphy.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The father shall communicate with the child by telephone between the hours of:

   a.   7.00pm and 7.30pm on each Monday and Tuesday; and

   b.   8.00am and 8.30am on each Sunday.

IT IS ORDERED BY CONSENT IN RESPECT OF PROPERTY THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Bancroft & Bancroft is approved pursuant to s 121(9)(g) of the Family Law Act 1975

PROPERTY SETTLEMENT

MINUTES OF CONSENT

1. That within thirty (30) days of the date of these Orders, the Respondent Wife transfer to the Applicant Husband all of her right title and interest in the property at C in the State of Queensland described more particularly as Lot … and the Applicant Husband refinance and indemnify the Respondent Wife in relation to the mortgage encumbering the property.

2. That contemporaneously with the transfer of real property described in paragraph 1 above, the Applicant Husband pay to the Respondent Wife an amount of two hundred and five thousand nine hundred and eighty-one dollars ($205,981.00).

3. That the Respondent Wife retain and the Applicant Husband relinquish all right title and interest in and to the following:

   a.Wife’s superannuation benefits; and

   b.Wife’s bank accounts; and

   c.The ANZ Term Deposit, formerly Esanda Investment; and

   d.The Heritage Term Deposit; and

   e.The Commonwealth Bank of Australia Term Deposit; and

   f.M Limited shares; and

   g.2003 Toyota Rav4 Cruiser Registration Number …; and

   h.The business of A Bancroft Enterprises; and

   i.Chattels currently held in the wife’s possession or under her control; and

   j.Medibank Life Insurance.

4. That the Respondent Wife retain the proceeds formerly represented in the parties joint Suncorp Bank Account BSB … Account Number … in the amount of twenty-six thousand three hundred and fifty-eight dollars ($26,358.00) which proceeds the Wife withdrew on 24 November 2010 and that the Applicant Husband relinquish any right, title and interest to the said Bank Account and within seven (7) days the Applicant Husband do all acts and things necessary to remove his name from the said Bank Account.

5. That the Applicant Husband retain and the Respondent Wife relinquish all her right title and interest in and to the following:

   a.Husband’s bank accounts; and

   b.1991 Ford Laser GL KF Unregistered vehicle; and

   c.Holden Jackaroo Registration Number …; and

   d.1998 Yamaha TT-R 250 motorbike Registration Number …; and

   e.The business of B Bancroft Enterprises; and

   f.Chattels currently held in the husband’s possession or under his control.

6. That save for the assets specifically mentioned herein the parties each retain for his/her sole use and benefit absolutely all other assets in their respective possession or of which he/she is the legal owner.

7. That save and except for any liability dealt with herein each party shall be solely responsible for and meet payment of his or her liability and shall keep indemnified the other party from such liability.

8. Where there is a transfer of assets, including real property in accordance with the terms of these Orders the Transferee shall be responsible for the costs of such transfer including stamp duty, the Transferee’s legal costs and any statutory charges. In all such instances, the Transferor will be responsible for her legal costs.

9. That pursuant to section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the Applicant Husband’s, namely B BANCROFT’S superannuation interest in BT Business Super member number …, the Respondent Wife be entitled to be paid a base amount of sixty-six thousand nine hundred and twenty-four dollars ($66,924.00) and there be a corresponding reduction in the entitlement of the Applicant Husband.

10. That Order 9 have effect from the operative time.

11. That the operative time be four (4) days after service of this Order on the Trustee of the said fund.

12. In the event that a lesser base amount of $66,924.00 is allocated to the Respondent Wife from the Applicant Husband’s BT Business Super interest pursuant to paragraph 9 herein, then the Applicant Husband shall pay to the Respondent Wife such amount necessary to ensure that the Respondent Wife receives the agreed amount of $66,924.00.

13. That the Applicant Husband and Respondent Wife sign and execute all documents, cheques and other instruments and generally do all acts and things necessary to give effect to the terms of these Consent Orders and upon either party failing to do so within seven (7) days of a request in writing from the other party or the Solicitor of the other party, the Registrar of this Honourable Court be empowered to do all acts and sign all instruments in lieu of the defaulting party.

14. That each party shall bear their own costs in regard to the property settlement.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7907 of 2010

MR BANCROFT

Applicant

And

MS BANCROFT

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The parties in this matter are each represented by solicitors.  With the assistance of those solicitors and advice provided by each of them, the parties conferred with a Deputy Registrar of this Court at a conciliation conference convened on 24 November 2010. 

2. At that time, pursuant to the material available to the parties and the Registrar, heads of agreement were reached.  Those heads of agreement were made subject to procedural fairness being accorded to the trustee of the relevant superannuation fund and information being received from that trustee with respect to the capacity of the trustee to carry into effect the splitting order forming the subject of agreement between the parties.

3. An affidavit filed today by leave, sworn by the husband’s solicitor, refers to communications with that trustee.  In particular, it is noted that, in terms of the heads of agreement submitted to it, an issue was raised with a particular paragraph which has subsequently been removed from the agreement formalised between the parties and sought to be made the subject of consent orders pursuant to section 79. 

4. I am satisfied, then, that the trustee has been accorded procedural fairness and that the trustee is in a position to carry out the terms of the superannuation splitting order agreed to between the parties.

5. The parties were married in 1991 and separated some 17 years later in 2008.  They have one child together who is currently aged nine.  That child is currently in the predominant care of the mother, a situation which, at least in the near future, is likely to continue. 

6. No submissions are made in respect of any contributions within the meaning of section 79 of the Act that suggests that the parties’ agreement that contributions from the commencement of the relationship to today’s date should be regarded as equal is anything other than appropriate. 

7. An adjustment has been agreed to between the parties of 10 per cent to take account of the matters required to be taken into account pursuant to section 79(4)(e) of the Act; that is, those matters contained in section 75(2) of the Act.

8. By reference to what was said by the Full Court in In the Marriage of Clauson (1995) FLC 92-595, which refers to the meaning of any such adjustment “in real terms”, it is to be noted that the adjustment of 10 per cent, mooted as just and equitable by the parties, equates to about $75,000, the total pool of property being valued at approximately $771,000. That is, the parties are agreed that the disparity between the parties on a final adjustment of property, pursuant to section 79, should be 20 per cent of the pool or about $140,000.

9. The parties have indicated that this disparity seeks to take account of the fact that the mother has the predominant care of the parties’ child and will continue, in the future, in the predominant homemaker and parenting role.  So, too, I am told that each of the parties are in remunerative employment and that there is a disparity between the current incomes of the parties which, I infer, the parties consider is likely to continue into the future.

10. I note that the parties are agreed as to the outcome representing a just and equitable settlement between them.  I note that the parties are each legally represented and have received advice. 

11. I note that neither of the parties raise any issues with respect to disclosure.  I note that neither of the parties reveal any matters that might be seen as extraordinary or outside what might conveniently be described as the usual course of a relationship producing an asset base of about this amount.

12. It seems to me then, in all of the circumstances, that the orders proposed by the parties are just and equitable within the meaning of section 79 of the Act.

13. I make orders in accordance with the Minutes of Consent.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on Wednesday, 8 December 2010.

Associate: 

Date:  21 December 2010