BULOW & BULOW - [2017] FCCA 2657

FEDERAL CIRCUIT COURT OF AUSTRALIA

BULOW & BULOW

[2017] FCCA 2657

Catchwords:
FAMILY LAW – Property – parties married 19 years – initial contributions – superannuation – splitting order – costs on interim applications – respondent unsuccessful in opposing sale of former matrimonial home – respondent unsuccessful in opposing partial property settlement – orders for discovery.

Legislation:

Family Law Act 1975 (Cth), ss.4, 75(2), 79(2), 79(4)(a)-(g), 117(1), (2) & (2A)

Federal Circuit Court Rules 2001 (Cth), Schedule 1

Cases cited:

Hickey & Hickey (2003) FLC 93-143

Petruski & Balewa [2013] FamCAFC 15

Applicant:

MS BULOW

Respondent:

MR BULOW

File Number:

ADC 1674 of 2014

Judgment of:

Judge Heffernan

Hearing dates:

23 & 24 November 2016

Date of Last Submission:

24 November 2016

Delivered at:

Adelaide

Delivered on:

22 November 2017

REPRESENTATION

Counsel for the Applicant:

Ms P Kari

Solicitors for the Applicant:

Johnston Withers

The Respondent:

In person

UPON NOTING that the amount to be disbursed to the husband pursuant to paragraph 1(a)(i) of these orders has been adjusted to reflect the quantum of costs awarded to the wife

ORDERS

There be a 60:40 division of the non-superannuation assets of the parties in favour of the wife with the following orders to give effect to the same:
(a)Within 7 days of the making of these orders, the parties shall do all such acts and things to facilitate the balance of the proceeds from the sale of the property at B Street, Suburb C presently held in the Bank SA Account BSB: …92, Account Number …40 (controlled by Ms D, conveyancer) being disbursed as follows:
(i)The sum of $87,332.80 to the husband; and
(ii)The balance then remaining to the Johnston Withers Solicitors Trust Account for and on behalf of the wife.
(b)The wife retain (and wherever necessary the husband shall do all such acts and things to transfer to the wife at her cost in all things):
(i)The Motor Vehicle 1 in the possession of the wife and registered in the joint names of the parties;
(ii)The Motor Vehicle 2 in the possession of the wife;
(iii)The furniture and effects in her possession;
(iv)Her property situated at E Street, Suburb F, in the State of South Australia, purchased with the monies received by her by way of partial property settlement orders made 23 December 2015;
(v)Those funds released to the wife pursuant to the partial property settlement orders made 23 December 2016 and 17 November 2016;
(vi)All savings and other investments in the wife’s sole name and/or in her possession or control);
(vii)The wife’s superannuation entitlements; and
(viii)Any other property (real or personal) in the wife’s sole name, possession or control.
(c)The husband retain (and wherever necessary the wife shall do all such acts and things to transfer to the husband at his cost in all things):
(i)The 200 G Shares presently in the joint names of the parties;
(ii)The furniture and effects in his possession;
(iii)Those funds released to the husband pursuant to the partial property settlement orders made 23…

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 BULOW & BULOW

Details

AGLC: BULOW & BULOW [2017] FCCA 2657
Case: [2017] FCCA 2657
Decision Date: 22 November 2017

CaseChat Overview and Summary

In the matter of BULOW & BULOW, Judge Heffernan of the Federal Circuit and Family Court of Australia made orders concerning the division of property and superannuation entitlements between the parties. The dispute involved the division of non-superannuation assets, with the court ordering a 60:40 split in favour of the wife. The orders also addressed the division of specific assets, including real estate, vehicles, furniture, savings, investments, and superannuation.

The court was required to determine the appropriate division of the parties' non-superannuation assets and to make orders for the division of the husband's superannuation interest. This involved specifying how various assets, including a property, vehicles, personal effects, and financial accounts, were to be retained by each party. Furthermore, the court needed to ensure that the superannuation splitting orders were effective and binding on the trustee of the husband's superannuation fund, in accordance with the relevant provisions of the *Family Law Act 1975* and its associated regulations.

Judge Heffernan ordered a 60:40 division of the non-superannuation assets in favour of the wife. To give effect to this, specific directions were made regarding the disbursement of proceeds from the sale of a property, the retention of various assets by each party, and the division of their respective superannuation entitlements. The court also made orders for the splitting of the husband's superannuation interest in H Super Fund, specifying a base amount to be allocated to the wife and outlining the mechanism for future splittable payments. The orders further stipulated that each party would be responsible for their own debts, each party would bear their own costs of the proceedings (save for costs related to transfers), and injunctive relief was granted to prevent parties from pledging the other's credit. Provisions were also included for the execution of necessary documents by a Registrar in the event of default.

Orders

Orders of the court

There be a 60:40 division of the non-superannuation assets of the parties in favour of the wife with the following orders to give effect to the same:

(a) Within 7 days of the making of these orders, the parties shall do all such acts and things to facilitate the balance of the proceeds from the sale of the property at B Street, Suburb C presently held in the Bank SA Account BSB: …92, Account Number …40 (controlled by Ms D, conveyancer) being disbursed as follows:

(i) The sum of $87,332.80 to the husband; and

(ii) The balance then remaining to the Johnston Withers Solicitors Trust Account for and on behalf of the wife.

(b) The wife retain (and wherever necessary the husband shall do all such acts and things to transfer to the wife at her cost in all things):

(i) The Motor Vehicle 1 in the possession of the wife and registered in the joint names of the parties;

(ii) The Motor Vehicle 2 in the possession of the wife;

(iii) The furniture and effects in her possession;

(iv) Her property situated at E Street, Suburb F, in the State of South Australia, purchased with the monies received by her by way of partial property settlement orders made 23 December 2015;

(v) Those funds released to the wife pursuant to the partial property settlement orders made 23 December 2016 and 17 November 2016;

(vi) All savings and other investments in the wife’s sole name and/or in her possession or control);

(vii) The wife’s superannuation entitlements; and

(viii) Any other property (real or personal) in the wife’s sole name, possession or control.

(c) The husband retain (and wherever necessary the wife shall do all such acts and things to transfer to the husband at his cost in all things):

(i) The 200 G Shares presently in the joint names of the parties;

(ii) The furniture and effects in his possession;

(iii) Those funds released to the husband pursuant to the partial property settlement orders made 23 December 2015;

(iv) All savings and other investments in the husband’s sole name and/or in his possession or control;

(v) The balance of the husband’s superannuation entitlements, subject to the superannuation splitting orders specified herein; and

(vi) Any other property (real or personal) in the husband’s sole name, possession or control.

Paragraph 2 (inclusive) of this order is binding on the Trustee of H Super Fund (‘the Fund’):

(a) In accordance with section 90MT(4) of the Family Law Act 1975 (‘the Act’) the base amount of $173,154 is to be allocated to the applicant of the interest of the respondent in the Fund (Member No: …44);

(b) Pursuant to section 90MT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the respondent’s interest in the Fund, the applicant shall be entitled to be paid an amount calculated in accordance with Pt 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 person to whom the spittable payment would have been made but for this order;

(d) The operative time for the purpose of paragraph 2(a) of this order is four (4) business days after the date of service of this sealed order upon the Trustee of the Fund;

(e) The applicant’s solicitors serve a copy of the sealed orders upon the Trustee of the H Super Fund within 7 days of receipt of the sealed copy of the orders;

As and from the making of these orders:

(a) The parties shall each pay and fully and forever indemnify the other with respect to their separate debts;

(b) The parties each pay their own costs of and incidental to these proceedings SAVE AND EXCEPT the costs of any transfer necessary to give effect to these orders as otherwise provided for herein;

(d) The parties shall each do all such acts and things and sign all such documents as may be necessary to give effect to these orders;

(e) If either the husband or the wife shall refuse or neglect to execute any document necessary to give effect to the terms of these orders within seven (7) days after the same shall have been tendered to them for that purpose, then and in such case a Registrar or Deputy Registrar of this Honourable Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute any such document on behalf of either party, (together with making any necessary amendments and/or undertaking any such other acts and signing such other documents as may be required to give effect to these orders) AND the party in default shall pay the other party’s costs arising from such default on an indemnity basis.

Liberty is granted to either party to apply for any consequential 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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