FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Berger & Berger [2023] FedCFamC2F 1477
File number(s): MLC 7603 of 2021 Judgment of: JUDGE GLASS Date of judgment: 20 November 2023 Catchwords: FAMILY LAW – PROPERTY - treatment of liability - assessment of contributions - whether adjustment is warranted Legislation: Family Law Act 1975 (Cth) ss 75, 79, 81, 117B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.06, 10.17
Cases cited: Adamson & Adamson (2014) FLC 93-622
Anson & Meek (2017) FLC 93-816
Biltoft & Biltoft (1995) FLC 92-614
Chapman & Chapman (2014) FLC 92-592
Elmanu & Elmanu (2022) FLC 94-116
Frederick & Frederick (2019) FLC 93-900
Fox v Percy (2003) 214 CLR 118
Kingston & Field (No 2) (2020) FLC 93-986
Lennon & Sanil (2020) FLC 93-962
Mellone & Mellone (2023) FLC 94-160
Stanford v Stanford (2012) 247 CLR 108
Phe & Leng (2019) FLC 93-887
Preston & Preston (2022) FLC 94-108
Prince & Prince (1984) FLC 91-501
Russo & Wylie (2016) FLC 93-747
Weir & Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 76 Date of last submission/s: 10 November 2023 Date of hearing: 9-10 November 2023 Place: Melbourne Counsel for the Applicant: Ms Swart Solicitor for the Applicant: Hartleys Lawyers Counsel for the Respondent: Mr Taghdir Solicitor for the Respondent: Family Law Life ORDERS
MLC 7603 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BERGER
Applicant
AND: MR BERGER
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
20 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Within 60 days, the Wife pay to the Husband the sum of $339,952.
2.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 property situate at and known as B Street, Suburb C and being the whole of the land more particularly described in Certificate of Title Volume … Folio … ("the Suburb C property"); and
(b)the parties to do all such things and sign all necessary documents to discharge the existing mortgage over the Suburb C property and the Wife to refinance the mortgage into her name.
3.In the event the wife is unable to comply with paragraphs 1 and 2 within 60 days, the parties forthwith do all such acts and things necessary as may be required to cause the Suburb C property to be placed on the market for sale, after which it is to be sold ("the sale") at the earliest possible date.
4.To facilitate the sale of the Suburb C property:
(a)the nearest D Conveyancers be appointed to act as the conveyancer in the sale;
(b)the selling agent of the Suburb C property is to be determined by written agreement between the parties and if no agreement is reached within 14 days after the date, the selling agent is to…
Continue reading Berger & Berger
Sign in free to access the full text
- AGLC
- Berger & Berger [2023] FedCFamC2F 1477
- Case
- [2023] FedCFamC2F 1477
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the valuation of the parties' respective contributions to the property, the appropriateness of an equal division of assets, and the necessity of any adjustments to achieve a just and equitable outcome. Judge Glass considered the evidence provided by both parties, including financial statements, expert reports, and testimony regarding the contributions and circumstances of each party.
In delivering the judgment, Judge Glass detailed the evidence and concluded that the Wife had made significant financial contributions to the family, including supporting the Husband during his periods of unemployment. Despite these contributions, the court determined that an equal division of the property was appropriate, taking into account the need to provide for the Wife's future financial security. The court also ordered the sale of the former matrimonial home and the disbursement of the proceeds in accordance with the judgment. Additionally, the court made specific orders regarding the division of superannuation interests and liabilities associated with business and personal assets.
The court's final orders included the Wife paying a specified sum to the Husband, the transfer of property interests, and detailed provisions for the sale of the former matrimonial home, including the appointment of a conveyancer and selling agent. The orders also addressed the division of superannuation benefits, business interests, and personal liabilities, ensuring that each party was responsible for their own debts and assets, with specific provisions for indemnifying the other party against certain liabilities.
Orders
Orders of the court
MLC 7603 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BERGER
Applicant
AND:
MR BERGER
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
20 NOVEMBER 2023
THE COURT ORDERS THAT:
1. Within 60 days, the Wife pay to the Husband the sum of $339,952.
2. 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 property situate at and known as B Street, Suburb C and being the whole of the land more particularly described in Certificate of Title Volume … Folio … ("the Suburb C property"); and
(b) the parties to do all such things and sign all necessary documents to discharge the existing mortgage over the Suburb C property and the Wife to refinance the mortgage into her name.
3. In the event the wife is unable to comply with paragraphs 1 and 2 within 60 days, the parties forthwith do all such acts and things necessary as may be required to cause the Suburb C property to be placed on the market for sale, after which it is to be sold ("the sale") at the earliest possible date.
4. To facilitate the sale of the Suburb C property:
(a) the nearest D Conveyancers be appointed to act as the conveyancer in the sale;
(b) the selling agent of the Suburb C property is to be determined by written agreement between the parties and if no agreement is reached within 14 days after the date, the selling agent is to be appointed by the President of the Real Estate Institute of Victoria or his or her nominee;
(c) the asking or reserve price of the Suburb C property be set by agreement between the parties in writing and failing agreement the asking or reserve price be set by the President of the Real Estate Institute of Victoria or his or her nominee; and
(d) as soon as practicable after the appointment of the selling agent the parties request a list of recommended repairs and essential works to be completed to prepare the Suburb C property for sale from the agent, with the costs to be borne by the parties in equal share.
5. The proceeds of sale of the Suburb C property be disbursed as follows:
(a) firstly, to pay all costs, commissions and expenses of the sale;
(b) secondly, to discharge any mortgage and any other encumbrances affecting the former matrimonial home other than any Caveats lodged by the parties or on behalf of the parties by their respective solicitors;
(c) thirdly, the sum of $339,952, together with interest calculated from the date of the Wife’s default with paragraphs 1 and 2 above in accordance with rule 10.17 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
(d) fourthly, the balance then remaining to the Wife.
6. Pending the sale of the Suburb C property:
(a) the Wife shall be solely liable for all outgoings on the former matrimonial home, including but not limited to mortgage repayments, rates, insurance, electricity, gas, water, and internet services and shall ensure that payments are made as and when they fall due;
(b) the Wife shall cooperate and take all necessary steps and execute all necessary documents as reasonably necessary to facilitate any inspections of the former matrimonial home by the selling agent and potential purchasers;
(c) the Wife shall maintain the former matrimonial home, including but not limited to keeping the property in a good, reasonable and presentable condition and state of repair for sale;
(d) other than to facilitate compliance with these Orders, neither party shall further encumber the former matrimonial home without the consent in writing of the other;
(e) the joint tenancy of the former matrimonial home is hereby expressly severed; and
(f) each party shall hold their respective interests in the former matrimonial home on trust in accordance with the provisions of these Orders.
7. Paragraphs 8 to 10 inclusive of these Orders are binding on Superannuation Fund 1 ("the Trustee") as Trustee of the Superannuation Fund 1 Trust, employer plan V Company Superannuation Plan ("the Superannuation Fund").
8. The base amount to be allocated to the Wife out of interests of the Husband in this Superannuation Fund (member number …) is $40,694 (“the base amount”).
9. Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the interest of the said Husband in the Superannuation fund, member number …, the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 ("the Regulations") using the base amount and there be a corresponding reduction in the entitlement of the Husband.
10. Order 9 has effect from the operative date.
11. The operative date for the purpose of these Orders is the fourth business day after the day on which a certified copy of the sealed Orders is served on the Trustee of the Superannuation Fund.
12. The Husband be responsible for and indemnify the Wife, and keep her indemnified for any liabilities in his name including but not limited to all claims, demands, interests, rights, proceedings and judgements and the Husband make all payments, including but not limited to all costs, repayments, interest or other liabilities, as and when they fall due including but not limited to all credit cards and personal debts in his name, and any tax debts he may have.
13. The Wife be responsible for and indemnify the Husband, and keep him indemnified for any liabilities in her name including but not limited to all claims, demands, interests,
rights, proceedings and judgements and the Wife make all payments, including but not
limited to all costs, repayments, interest or other liabilities, as and when they fall due
including but not limited to all credit cards and personal debts in her name, and any tax
debts she may have.
14. In relation to the company E Pty Ltd ("the company"):
(a) the Wife retain all of the rights and interest in the company;
(b) the Husband relinquishes any claim he may have in relation to the company; and
(c) the Wife be responsible and otherwise indemnify the Husband and keep the Husband indemnified in relation to all liabilities associated with the past, or present running of the company including but not limited to loans, taxation liabilities incurred by the company prior to separation and any future taxation liabilities and the Wife on behalf of the company pay those liabilities as and when they fall due at the date of execution of this agreement.
15. In relation to the property situate at F Street, City G in Country H (“the Country H property”):
(a) the Wife retain all of her right, title and interest in the Country H property to the exclusion of the Husband;
(b) the Husband relinquishes any claim he may have in relation to the Country H property; and
(c) the Wife be responsible and otherwise indemnify the Husband and keep the Husband indemnified in relation to all liabilities associated with the past, or present in relation to the Country H property including but not limited to loans, taxation liabilities incurred in relation to the property prior to separation and any future taxation liabilities, and the Wife pay those liabilities as and when they fall due.
16. The Wife shall retain possession and interest in any motor vehicles in her possession and shall be solely liable for all outgoings with respect to her motor vehicle and shall ensure that all payments are made as and when they fall due.
17. The Husband shall retain possession and interest in any motor vehicles in his possession and shall be solely liable for all outgoings with respect to his motor vehicle and shall ensure that all payments are made as and when they fall due.
18. Unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any moneys 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 at the date of these Orders save as provided for in these Orders;
(b) any money standing to the credit of the parties in a bank account is to be retained by the party in whose name the account appears;
(c) each party hereby forgoes any claim they may have to any superannuation or pension benefit and /or any interest in any trust or deceased estate that is payable to or belonging to or owned by the other save as provided for in these Orders;
(d) all insurance policies are to become the sole property of the owner named therein;
(e) each party be solely liable for and indemnify the other against any liability in their sole name including but not limited to any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
19. All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.