Bayer and Bayer - [2009] FamCA 884

FAMILY COURT OF AUSTRALIA

BAYER & BAYER

[2009] FamCA 884

FAMILY LAW - PROPERTY SETTLEMENT – Assets and Liabilities – Contributions – Adjustments – Just and equitable – Superannuation

Family Law Act 1975 (Cth) ss 75, 79

In the Marriage of Hickey (2003) 30 Fam LR 355
Wilde v Wilde [2007] FamCA 1044
In the Marriage of Omacini (2005) 33 Fam LR 134
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414

APPLICANT:

Mr Bayer

RESPONDENT:

Ms Bayer

FILE NUMBER:

SYF

3761

2006

DATE DELIVERED:

11 September 2009

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

PLACE HEARD: Sydney

HEARING DATE:

14 & 15 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT

HUSBAND:

Mr G. Johnston

SOLICITOR FOR THE APPLICANT:

Millar Goddard Solicitors

COUNSEL FOR THE RESPONDENT

WIFE:

Mr R. Schonell

SOLICITOR FOR THE RESPONDENT

Robert Napoli & Company

Orders

Pursuant to section 90MT(4) of the Family Law Act 1975 the amount of $197,270.00 (one hundred and ninety seven thousand two hundred and seventy dollars) of the husband’s superannuation interest in C Superannuation Fund (“the fund”) be allocated to the wife (“the base amount”) by way of a splitting order as follows:
1.1.In accordance with paragraph 90MT (1) (a) of the Act:
a.the Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
b.the Husbands 's entitlement in the fund, is correspondingly reduced.
1.2. C Pty Limited as Trustee shall do all things necessary to:
a.calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Wife by these orders; and
b. pay the entitlement whenever the fund makes a splittable payment out of the Husband’s interest in the fund.
1.3.This order shall have effect from the operative time and the operative time for this order is four business days after service of a sealed copy of these orders on C Pty Limited, as trustee of C Fund.
Within two months from the date of these orders the wife shall pay to the husband $143,783.
Forthwith upon receipt of the payment in Order 2 the husband shall transfer to the wife all of his right title and interest in the property at W, being all of the land contained in Folio Identifier ….
In the event the wife does not make the payment ordered in 2. above, forthwith upon that default the parties shall do all acts and things and execute all documents necessary to sell the W property on such terms and with an agent agreed upon by the parties…

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 Bayer and Bayer

Details

AGLC: Bayer and Bayer [2009] FamCA 884
Case: [2009] FamCA 884
Decision Date: 11 September 2009

CaseChat Overview and Summary

This matter concerned orders made by Judicial Registrar Loughnan in the Federal Circuit and Family Court of Australia concerning the property settlement between a husband and wife. The dispute involved the division of various assets, including superannuation, real estate, a motor vehicle, and personal property, as well as the allocation of debts.

The court was required to determine the specific entitlements of each party to various assets and liabilities, and to make orders for the transfer and division of these. This included the allocation of a significant portion of the husband's superannuation interest to the wife via a splitting order, the transfer of a property from the husband to the wife upon payment of a sum by the wife, and provisions for the sale of that property in the event of default. The court also addressed the division of a motor vehicle, household contents, and a joint bank account, and made general orders regarding other property.

The Judicial Registrar applied the provisions of the *Family Law Act 1975* and the *Family Law (Superannuation) Regulations 2001* to effect the division of the superannuation interest. The court's orders provided a detailed mechanism for the calculation and payment of the wife's entitlement from the husband's superannuation fund. For other assets, the court made specific orders for transfer and division, including a mechanism for the sale of the W property and the distribution of sale proceeds, and a method for the division of household contents. The orders also included provisions for the appointment of a Registrar to execute documents in the event of a party's default, and a stay on the operation of the orders for 14 days with liberty to restore.

Orders

Orders of the court

Pursuant to section 90MT(4) of the Family Law Act 1975 the amount of $197,270.00 (one hundred and ninety seven thousand two hundred and seventy dollars) of the husband’s superannuation interest in C Superannuation Fund (“the fund”) be allocated to the wife (“the base amount”) by way of a splitting order as follows:

1.1. In accordance with paragraph 90MT (1) (a) of the Act:

a. the Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

b. the Husbands 's entitlement in the fund, is correspondingly reduced.

1.2. C Pty Limited as Trustee shall do all things necessary to:

a. calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Wife by these orders; and

b. pay the entitlement whenever the fund makes a splittable payment out of the Husband’s interest in the fund.

1.3. This order shall have effect from the operative time and the operative time for this order is four business days after service of a sealed copy of these orders on C Pty Limited, as trustee of C Fund.

Within two months from the date of these orders the wife shall pay to the husband $143,783.

Forthwith upon receipt of the payment in Order 2 the husband shall transfer to the wife all of his right title and interest in the property at W, being all of the land contained in Folio Identifier ….

In the event the wife does not make the payment ordered in 2. above, forthwith upon that default the parties shall do all acts and things and execute all documents necessary to sell the W property on such terms and with an agent agreed upon by the parties within 14 days of the date of default and failing agreement then with such agent as the President of the Real Estate Institute of New South Wales shall nominate and such agent shall determine the method and terms of sale including sale price.

The proceeds of sale of the property shall be distributed in the following order and priority:

i. In payment of all legal costs and agents fees and commissions;

ii. In discharge of any mortgage secured on the property;

iii. In payment of 24% of the balance to the husband;

iv. In payment of the remainder to the wife.

Within 21 days from the date of these orders the husband shall do all acts and sign all documents to transfer to the the wife all of his interest in the Toyota Corolla motor vehicle ….

Within 21 days from the date of these orders the wife shall prepare two lists of the contents of the W home and serve them upon the husband and he shall chose the items in one of the lists as his sole property and the items in the other list shall be the sole property of the wife and the wife shall make the husband’s items available to him for collection on a date agreed between the parties being a date not later than 21 days after the husband communicates his choice to the wife.

The husband is the sole and beneficial owner of the joint account with R Company.

Otherwise each party is the sole and beneficial owner of all other items of property in their respective possession, custody or control including but not limited to superannuation entitlements.

10.

In the event that either party shall fail, neglect or refuse to execute any deed, instrument or document to give validity and effect to these orders then upon the other party filing an affidavit setting out such failure, neglect or refusal then a Registrar or a Deputy Registrar of the Sydney Registry of the Court is hereby appointed pursuant to section 106A of the Family Law Act to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.

11.

The operation of these orders is stayed for 14 days and the parties have liberty to restore the proceedings in respect of the form and implementation of these orders.

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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