BELASCO & BELASCO & ANOR - [2020] FCCA 3078

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELASCO & BELASCO & ANOR

[2020] FCCA 3078

Catchwords:
FAMILY LAW – Property – Second Respondent added to the proceedings – Second Respondent is the husband’s mother – whether funds advanced by the Applicant’s parents is a loan required to be repaid – held that the funds advanced were not loans – significant contribution made by the husband – adjustment to the wife for section 75(2) factors – property pool to be divided 60% to the husband and 40% to the wife.

Legislation:

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

Cases cited:

Bevan v Bevan [2013] FamCAFC 116

Dickons & Dickons [2012] FamCAFC
Eufrosin & Eufrosin [2014] FamCAFC 191
In the Marriage of CJ and V Biltoft (1995) 19 Fam LR 82; (1995) FLC 92-614
In the Marriage of FS and LM Petersens (1981) 7 Fam LR 402; (1981) FLC 91-095
Lovine & Connor [2012] FamCAFC 168
Stanford v Stanford [2012] HCA 52

Applicant:

MR BELASCO

First Respondent:

MS BELASCO

Second Respondent:

MS C BELASCO

File Number:

MLC 7054 of 2019

Judgment of:

Judge Blake

Hearing dates:

10, 11 and 13 August 2020

Date of Last Submission:

13 August 2020

Delivered at:

Melbourne

Delivered on:

13 November 2020

REPRESENTATION

Counsel for the Applicant:

Mr Combes

Solicitors for the Applicant:

Christopher William Legal

Counsel for the First Respondent:

Ms Hannan

Solicitors for the First Respondent:	McGowan Family Law
Counsel for the Second Respondent:	Mr Felkel

Solicitors for the Second Respondent:

Horvat Legal

DECLARATION

The Applicant and First Respondent do not owe money to the Second Respondent pursuant to a loan agreement or otherwise.

ORDERS

The proceeds of sale of B Street, Suburb D, which are currently being held on trust by the Applicant’s solicitors and the sums already received by the parties pursuant to the interim release of funds be divided between the parties as follows:
(a)60% to the Applicant; and
(b)40% to the First Repondent.
The Applicant and the First Respondent each retain their own motor vehicles registered in their respective names, to the sole exclusion of the other.
The Applicant and the First Respondent each retain their own funds standing to the credit of their respective bank accounts, to the sole exclusion of the other.
With respect to the Applicant's superannuation and for the purposes of these Orders:
(a)The Applicant is the member spouse.
(b)The First Respondent is a non-member spouse;
(c)The superannuation fund is Super Fund E (“the Fund”);
The trustee do all such acts and things and sign all such documents as may be necessary so that in accordance with the obligations set out under the Family Law (Superannuation) Regulations 2001 the trustee can calculate the entitlement of and make payment to the First Respondent in accordance with these Orders.
Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable from Mr Belasco’s interest in the fund, the trustees shall pay to Ms Belasco the amount calculated in accordance with Part 6 of 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 BELASCO & BELASCO & ANOR

Details

AGLC: Belasco and Belasco and Anor [2020] FCCA 3078
Case: [2020] FCCA 3078
Decision Date: 13 November 2020

CaseChat Overview and Summary

In the matter of *Belasco & Belasco & Anor*, Judge Blake of the Family Court of Australia considered a property dispute between the applicant wife and the first respondent husband. The second respondent, the husband's mother, was added to the proceedings to determine whether funds advanced by the applicant's parents constituted a loan requiring repayment.

The court was required to determine whether certain funds advanced by the applicant's parents were a loan to be repaid to the applicant, and to make orders for the division of the parties' property pool. Additionally, the court needed to consider the impact of the husband's significant contributions and to make adjustments for section 75(2) factors in favour of the wife.

Judge Blake found that the funds advanced by the applicant's parents were not loans, but rather a significant contribution to the property pool. The court reasoned that the nature of the advance indicated it was not intended to be repaid. Applying principles of property division in family law, the court determined that the property pool should be divided 60% in favour of the husband and 40% in favour of the wife, taking into account the husband's contributions and the wife's section 75(2) factors. The court also made detailed orders regarding the division of proceeds of sale, motor vehicles, bank accounts, and superannuation entitlements, including specific provisions for the trustee of the superannuation fund.

Orders

Orders of the court

The proceeds of sale of B Street, Suburb D, which are currently being held on trust by the Applicant’s solicitors and the sums already received by the parties pursuant to the interim release of funds be divided between the parties as follows:

(a) 60% to the Applicant; and

(b) 40% to the First Repondent.

The Applicant and the First Respondent each retain their own motor vehicles registered in their respective names, to the sole exclusion of the other.

The Applicant and the First Respondent each retain their own funds standing to the credit of their respective bank accounts, to the sole exclusion of the other.

With respect to the Applicant's superannuation and for the purposes of these Orders:

(a) The Applicant is the member spouse.

(b) The First Respondent is a non-member spouse;

The trustee do all such acts and things and sign all such documents as may be necessary so that in accordance with the obligations set out under the Family Law (Superannuation) Regulations 2001 the trustee can calculate the entitlement of and make payment to the First Respondent in accordance with these Orders.

Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable from Mr Belasco’s interest in the fund, the trustees shall pay to Ms Belasco the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $67,331.29 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these Orders.

These orders binds the Trustee of the Fund and these Orders takes effect from the operative time being the beginning of the fourth business day after the date of service of these Orders on the Trustee.

The Trustee of the Fund must comply with the obligations imposed upon the trustees of eligible superannuation plans under the Act and Family Law (Superannuation) Regulations 2001.

That each party and the Trustee of the fund have leave to apply in relation to the implementation of these Orders insofar as they relate to superannuation.

10.

Until the occurrence of any of:

(a) The establishment of the separate account in the name of the non-member spouse in the superannuation fund; or

(b) The payment or "rolling over" into another superannuation fund of the payment split created by these Orders; or

(c) The non-member spouse satisfies a condition of release and is paid the payment split which was created by these Orders; or

(d) The non-member spouse executing a waiver of rights within the meaning of section 90MZA of the Act in relation to the payment split created by these Orders;

the member spouse 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 part of his interest in the superannuation fund a "non-splittable payment" in the meaning of regulation 12 or regulation 13 of the Family Law Superannuation Regulations 2001.

11.

Unless otherwise specified in these orders:

(a) Each party be solely entitled to all other property (including choses in action) in the possession of that party as at the date of these orders;

(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.

12.

The Applicant and First Respondent do all acts and things and give all consents and execute all documents necessary to give effect to these orders.

13.

Each party have liberty to apply as to the implementation or enforcement of these Orders upon the giving of seven days written notice to the other.

14.

All extant applications be 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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