Barney and Barney - [2012] FMCAfam 487

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARNEY & BARNEY

[2012] FMCAfam 487

FAMILY LAW – Property settlement – two pool approach – identification of assets – add-backs – gift from wife’s parents – contributions – assessment of s.75(2) factors – just and equitable.

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

Hickey & Hickey (2003) FLC 93-141
Ferraro & Ferraro (1993) FLC 92-335
In the Marriage Coghlan (2005) FLC 93-220
Norbis v Norbis (1986) FLC 91-712
Chorn & Hopkins (2004) FLC 93-204
Cerini & Cerini [1998] FamCA 143
Gollings & Scott [2007] FamCA 397
Edgehill & Edgehill [2007] FamCA 1102
Gosper & Gosper (1987) FLC 91-818
Pelligrino & Pelligrino (1997) FLC 92-789
Kessey & Kessey (1994) FLC 92-495

Anthony Dickey, Family Law (5th ed, Lawbook Co., 2007)

Applicant:

MR BARNEY

Respondent:

MS BARNEY

File Number:

MLC 3637 of 2011

Judgment of:

Baker FM

Hearing dates:

20, 21, 22 and 23 February 2012 and 24 April 2012

Date of Last Submission:

24 April 2012

Delivered at:

Hobart

Delivered on:

24 May 2012

REPRESENTATION

Counsel for the Applicant:

Ms Stoikovska

Solicitors for the Applicant:

Glezer Lanteri & Associates

Counsel for the Respondent:

Ms Tulloch

Solicitors for the Respondent:

Gibsons Solicitors

ORDERS

Within 60 days the wife pay to the husband the sum of $260,356.00.
In the event that she is unable to obtain finance to pay the husband the sum referred to in paragraph 1, the wife shall within 14 days give the husband written notice and forthwith thereafter do all such acts and things as may be required to place on the market for sale (“the sale”) the property at Property L, for the best price obtainable, and for the purposes of effecting the said sale:
(a)The wife shall engage a real estate agent (“the agent”) to be agreed by the husband, and failing agreement such agent as the President of the Real Estate Institute of Victoria shall appoint, to sell Property L and further authorise the agent to speak to the husband in relation to the conduct of the sale;
(b)The terms, conditions and marketing for the sale, including the issue of whether or not the property should be sold subject to the current tenancy or with vacant possession shall be as agreed between the parties upon the advice of the agent;
(c)In the event that the parties agree that Property L shall be sold with vacant possession the wife shall forthwith do all such acts and things as may be required to give notice to the tenants;
(d)The sale price or reserve price (as applicable) shall be as agreed between the parties upon the advice of the agent and failing agreement shall be as determined by a valuer to be nominated by the President of the Real Estate Institute of Victoria (“the valuer”);
(e)The cost of and incidental to such appointment and valuation be borne equally by the parties; and,
(f)The wife execute a contract for sale by the solicitors having conduct of the sale at a price agreed between the…

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 Barney and Barney

Details

AGLC: Barney and Barney [2012] FMCAfam 487
Case: [2012] FMCAfam 487
Decision Date: 24 May 2012

CaseChat Overview and Summary

This matter involved the parties, Mr. Barney and Ms. Barney, who were married and subsequently divorced. The primary dispute concerned the distribution of property and assets following their separation. The case was heard and determined by the Family Court of Australia. The court was tasked with resolving several key legal issues, including the equitable division of the matrimonial property pool, the allocation of superannuation entitlements, and the sale of specific properties to satisfy financial obligations. The court meticulously analyzed the contributions and needs of both parties, applying the principles set forth in the Family Law Act 1975. It determined that Ms. Barney was to pay Mr. Barney $260,356.00 within 60 days, or alternatively, sell a specified property to meet this obligation. If the sale did not occur within six months, the property was to be relisted for auction. The distribution of sale proceeds and the division of the non-superannuation property pool were also detailed, with specific percentages allocated to each party. Additionally, the court ordered the transfer of certain assets and liabilities between the parties, including shares, directorships, and motor vehicles. The court also addressed the allocation of superannuation interests, specifying that a portion of Mr. Barney's superannuation fund was to be allocated to Ms. Barney, subject to regulatory compliance. The orders also included provisions for ongoing obligations and liabilities related to the properties and the management of the superannuation fund.

Orders

Orders of the court

Within 60 days the wife pay to the husband the sum of $260,356.00.

In the event that she is unable to obtain finance to pay the husband the sum referred to in paragraph 1, the wife shall within 14 days give the husband written notice and forthwith thereafter do all such acts and things as may be required to place on the market for sale (“the sale”) the property at Property L, for the best price obtainable, and for the purposes of effecting the said sale:

(a) The wife shall engage a real estate agent (“the agent”) to be agreed by the husband, and failing agreement such agent as the President of the Real Estate Institute of Victoria shall appoint, to sell Property L and further authorise the agent to speak to the husband in relation to the conduct of the sale;

(b) The terms, conditions and marketing for the sale, including the issue of whether or not the property should be sold subject to the current tenancy or with vacant possession shall be as agreed between the parties upon the advice of the agent;

(c) In the event that the parties agree that Property L shall be sold with vacant possession the wife shall forthwith do all such acts and things as may be required to give notice to the tenants;

(d) The sale price or reserve price (as applicable) shall be as agreed between the parties upon the advice of the agent and failing agreement shall be as determined by a valuer to be nominated by the President of the Real Estate Institute of Victoria (“the valuer”);

(e) The cost of and incidental to such appointment and valuation be borne equally by the parties; and,

(f) The wife execute a contract for sale by the solicitors having conduct of the sale at a price agreed between the parties, or failing agreement at a price nominated by the valuer.

In the event Property L has not sold by private treaty or auction within six months, the parties do all acts and things and sign all documents necessary to immediately relist Property L for sale by public auction again, on a date nominated by the agent.

(a) The reserve price for the purposes of such auction will be as agreed between the parties within 14 days after the date upon which Property L is listed for sale, or failing agreement a price determined by the valuer.

(b) In the event that the bidding at the auction does not reach the reserve price the wife may negotiate with the highest bidders or any other interested person and effect a sale at a price which is agreed between the parties, and if not agreed upon the advice of the valuer.

Upon the settlement of the sale of Property L (“the first settlement date”) the proceeds of sale be distributed as follows:

(a) First, to discharge the mortgage and any other encumbrances;

(b) Second, to pay all real estate agents costs, commissions and expenses of the sale (including the cost of the valuation referred to in paragraph 2(d) of these orders if applicable);

(d) Fourth, to pay the conveyancing costs in relation to the sale; and

(e) Fifth, to the husband and to the wife such amount as may be required to divide between them the non-superannuation property pool as described in paragraph 65 of the reasons for judgment such that the wife receives 63% of the non-superannuation property pool and the husband receives 37% of the non-superannuation property pool, the said non-superannuation property pool being first adjusted to take into account:

(i) The sale price for Property L;

(ii) The costs of sale as per subparagraphs 4b and d above; and

(iii) Any CGT liability arising as a consequence of the sale.

In the event that the wife fails to comply with paragraph 4 of these orders, the wife to do all such acts and things and sign all such documents as may be required to forthwith sell the property at Property E, and upon the settlement of the sale the proceeds be distributed as follows:

(a) First, to discharge the mortgage and any other encumbrances;

(b) Secondly, to pay all real estate agents costs, commissions and expenses of the sale;

(d) Fourthly, to pay the conveyancing costs in relation to the sale;

(e) Fifthly, to pay to the husband the sum calculated pursuant to paragraph 4 of these orders plus penalty interest from the first settlement date to the date upon which such payment is made to him in full; and

(f) Sixthly, the balance then remaining to the wife.

Each party to have liberty to apply in relation to the sale of Property L and Property E.

Pending the wife paying to the husband the whole of the amount referred to in paragraph 1 or in paragraph 4 (plus any penalty interest owing on that sum) whichever may be applicable:

(a) the wife shall be solely responsible for the payments of the principal and interest of the mortgage secured over the properties and shall make all payments in respect of it; and

(b) the wife shall be solely liable for and indemnify the husband against all payments and liabilities in respect of the properties, including but not limited to rates, taxes and outgoings of whatsoever nature and kind.

Within 30 days the wife:

(a) Resign as a director of (omitted);

(b) Transfer her shares in (omitted) to the husband;

Contemporaneously upon the payment to the husband pursuant to paragraph 1 or paragraph 4 as may be applicable:

(a) The husband provide to the wife or her solicitors executed withdrawals of caveat in registrable form with respect to the Property E and Property L properties;

(b) The wife provide to the husband or his solicitors executed withdrawals of caveat in registrable form in respect of Property B.

10.

The husband relinquish in favour of the wife any right, title or interest he may have the following:

(a) The Property E property if it is not sold;

(b) The Property L property if it is not sold;

(d) The on-site caravan;

(e) Wife’s superannuation entitlements.

11.

The wife relinquish in favour of the husband any right, title or interest she may have the following:

(a) Property B;

(b) (omitted);

(d) The (omitted) motor bike;

(e) The husband’s superannuation entitlements, except as specified in this order.

12.

That for the purpose of these orders:

(a) “the Superannuation fund” is the (omitted) Master Fund;

(b) The Applicant Mr Barney is the member spouse (client number (omitted)) account number (omitted);

(d) “The Trustee” means the trustee(s), person(s) or corporation(s) responsible from time to time for the management or investment of the Superannuation Fund.

13.

That paragraphs 14 to 20 of these orders are binding on the Trustee.

14.

That the base amount to be allocated to the Respondent out of the Applicant’s interest in the Superannuation Fund shall be the amount of $34,554.00 at the operative time.

15.

That in accordance with Section 90MT of the Family Law Act 1975 whenever the Trustee makes a splittable payment from the interest held by the Applicant in the Superannuation Fund the Trustee shall pay to the Respondent the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2011 using the base amount calculated pursuant to order 18 hereof, and there be a corresponding reduction in the entitlement that the Applicant would have had but for these orders.

16.

That paragraph 15 has effect from the operative time.

17.

That the operative time for the purpose of these order is the beginning of the fourth business day after the day on which a sealed copy of these orders is served upon the Trustee by the Respondent.

18.

That the Trustee and the parties in accordance with the obligations set out under the Family Law Act, the Family Law (Superannuation) Regulations 2011 and the Superannuation Industry (Supervision) Act and Regulations 1994, shall do all such acts and things and sign all documents as may be necessary to calculate the entitlement and make the payment in accordance with these orders.

19.

That until the happening of any of:

(a) The establishment of a separate account in the name of the Respondent in the Superannuation Fund;

(b) The transfer of “rolling over” into another superannuation fund or superannuation account of the payment split created by paragraph 15 hereof; or

(c) The Respondent satisfied a condition of release and is paid the payment split which was created by paragraph 15 hereof; or

(d) The Respondent executing a waiver of rights within the meaning of Section 90MZA of the Family Law Act in relation to the payment split created by paragraph 15 the Applicant be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any party of his interest in the Superannuation Fund a “non splittable payment” within the meaning of Regulation 12 of the Family Law (Superannuation) Regulations 2011.

20.

That each party and the Trustee have liberty to apply in relation to the implementation of the orders affecting the Applicant’s superannuation interest.

21.

Unless otherwise specified in this order:

(a) Each party be solely entitled to the exclusion of the other to all property in the possession of that party as at this date save as otherwise agreed between the parties in writing;

(b) Each party be solely liable and indemnify the other party against any liability encumbering any form of property to which that parties is entitled pursuant to this order;

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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