Bancroft and Bancroft - [2008] FMCAfam 120

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BANCROFT & BANCROFT

[2008] FMCAfam 120

FAMILY LAW – Property – add backs – superannuation split.

Family Law Act 1975, ss.79, 75(2)
Family Law (Superannuation) Regulations 2001

Omacini & Omacini (2005) FLC 93-218
DJM & LJM (1998) FLC 92-816
Townsend & Townsend (1995) FLC 92-569
Kowaliw & Kowaliw (1981) FLC 91-092
HDM & SJM [2006] FamCA 47
AJO & GRO [2005] FamCA 195

Applicant:

MS BANCROFT

Respondent:

MR BANCROFT

File Number:

BRC 1928 of 2007

Judgment of:

Connolly FM

Hearing date:

23 November 2007

Date of Last Submission:

23 November 2007

Delivered at:

Melbourne

Delivered on:

22 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr Matthews

Solicitors for the Applicant:

Biddle Lawyers

Counsel for the Respondent:

In Person

ORDERS

The wife pay to the husband the sum of $33,884 (“the payment”) on or before 21 March 2008 (“the date”);
That contemporaneously with the payment:
(a)The husband do all such acts and things and sign all such documents as may be required to transfer to the wife at the expense of the wife, all of his right, title and interest in the real properties situate at and known as Property M and Property W (“the real properties”)
(b)The wife indemnify the husband against all payments and liability and all apportionable rates, takes and outgoings of or with respect to the real properties of whatsoever nature and kind.
The wife, on or before 21 March 2008, do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband, all of her right, title and interest in the real property situate at and known as Property N (“the real property”).
The husband indemnify the wife against all payments and liability and all apportionable rates, takes and outgoings of or with respect to the real property of whatsoever nature and kind.
That in the event that the whole of the payment has not been made by the date, then the real property at Property W be forthwith sold altogether out of Court (“the sale”)
and upon completion of the sale, the proceeds of sale be applied:
(a)First to pay all costs, commissions and expenses of (the said trust transfer and) the sale;
(b)Secondly to discharge any other encumbrance affecting the real property;
(c)Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 10 percent per annum adjusted monthly from the date to the husband;
(d)Fourthly the balance to the wife.
That pending the payment or completion of sale:
(a)The wife have the sole right to occupy the real property and during such right of occupation, the wife pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interest in the real properties upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bancroft and Bancroft

Details

AGLC: Bancroft and Bancroft [2008] FMCAfam 120
Case: [2008] FMCAfam 120
Decision Date: 22 February 2008

CaseChat Overview and Summary

Bancroft and Bancroft involved a dispute between a husband and wife regarding the division of assets and liabilities following their separation. The case was heard in the Family Court of Australia. The primary focus of the case was the equitable distribution of property, including real estate, vehicles, and a superannuation fund, as well as the allocation of financial responsibilities such as rates, taxes, and liabilities. The court was also tasked with addressing the transfer of ownership of specific assets and the indemnification of each party against certain liabilities.

The legal issues before the court included the interpretation and application of the Family Law Act 1975, particularly in relation to the principles of equal sharing and the consideration of contributions made by each party to the marriage. The court had to determine the fair division of the matrimonial assets and liabilities, taking into account both financial and non-financial contributions. Furthermore, the court needed to address the practicalities of asset transfers and the implications of joint liabilities, such as those associated with a joint credit card.

In reaching its decision, the court considered the evidence presented regarding the contributions of each party to the marriage, the value of the assets to be divided, and the implications of the proposed division on both parties. The court ordered a monetary payment from the wife to the husband, along with the transfer of specific properties and vehicles. It also included provisions for indemnification and the allocation of joint liabilities. The court further addressed the division of superannuation benefits, ensuring compliance with relevant regulations. The orders provided for contingencies in case the payment was not made by the specified date, including the sale of one of the properties.

The court's orders mandated specific actions to be taken by both parties to effect the transfer of assets and to address liabilities. It also outlined the respective rights and obligations of the parties concerning the properties and other assets. The court granted liberty to apply for further clarification or modification of the orders within a specified period and dismissed all other pending applications.

Orders

Orders of the court

The wife pay to the husband the sum of $33,884 (“the payment”) on or before 21 March 2008 (“the date”);

That contemporaneously with the payment:

(a) The husband do all such acts and things and sign all such documents as may be required to transfer to the wife at the expense of the wife, all of his right, title and interest in the real properties situate at and known as Property M and Property W (“the real properties”)

(b) The wife indemnify the husband against all payments and liability and all apportionable rates, takes and outgoings of or with respect to the real properties of whatsoever nature and kind.

The wife, on or before 21 March 2008, do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband, all of her right, title and interest in the real property situate at and known as Property N (“the real property”).

The husband indemnify the wife against all payments and liability and all apportionable rates, takes and outgoings of or with respect to the real property of whatsoever nature and kind.

That in the event that the whole of the payment has not been made by the date, then the real property at Property W be forthwith sold altogether out of Court (“the sale”)

and upon completion of the sale, the proceeds of sale be applied:

(a) First to pay all costs, commissions and expenses of (the said trust transfer and) the sale;

(b) Secondly to discharge any other encumbrance affecting the real property;

(c) Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 10 percent per annum adjusted monthly from the date to the husband;

(d) Fourthly the balance to the wife.

That pending the payment or completion of sale:

(a) The wife have the sole right to occupy the real property and during such right of occupation, the wife pay all rates and taxes and like apportionable outgoings of the real property as they fall due;

(b) The parties hold their respective interest in the real properties upon trust pursuant to these orders; and

That the husband forthwith do all necessary acts and things and sign all necessary documents to transfer to the wife at the expense of the wife all his right, title and interest in the Magna Sedan and the Hilux Utility.

That the wife forthwith do all necessary acts and things and sign all necessary documents to transfer to the husband at the expense of the husband all her right, title and interest in the Land Cruiser Wagon.

That the husband be liable for and indemnify the wife against all payment in respect to the joint Mastercard.

That paragraphs 9 and 10 take effect from the operative time.

10.

That whenever a splittable payment becomes payable to the husband from his interest in the Suncorp Superannuation Fund, the wife will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $15,997.00 and there will be a corresponding reduction in the entitlement the husband would have had but for this Order.

11.

That having been accorded procedural fairness in relation to the making of this Order, this Order binds the trustee of the Suncorp Superannuation Fund.

12.

The operative time for this Order is four working days after the service of this Order on the Trustee of the Suncorp Superannuation Fund.

13.

That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

(a) Each party be solely entitled to the exclusion of the other, to all other property (including choses-in-action) in the possession of such party (the furniture, personal possessions, and like chattels in the property to which they are entitled pursuant to these Orders being deemed to be in the possession of that party).

(b) Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other.

(d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

(e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

14.

That there be liberty to apply for a period of 14 days with respect to the form of this Order and any other matter arising from the Order.

15.

All extant applications 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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