CALLIS & CALLIS

[2013] FamCA 1085

FAMILY COURT OF AUSTRALIA

CALLIS & CALLIS [2013] FamCA 1085

FAMILY LAW – ORDERS – Variation

APPLICANT: Ms S Callis

RESPONDENT: Mr Callis

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11308 of 2010

DATE DELIVERED: Thursday, 28 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: Thursday 28 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wood

SOLICITOR FOR THE APPLICANT: Oakfair Lawyers

COUNSEL FOR THE RESPONDENT: Mr Mellas

SOLICITOR FOR THE RESPONDENT: Nicholes Family Law

Orders

IT IS ORDERED:

1.That pursuant to section 79A(1)(b) and (c) of the Family Law Act 1975, the Orders made in the Family Court at Brisbane on 23 December 2002 (“the Orders”) be varied.

BY CONSENT IT IS ORDERED:

1.1    That paragraph 8.1 of the Orders be discharged.

1.2    That in substitution for paragraph 8.1 of the Orders:

1.2.1That this order is binding upon the B Superannuation Fund.

1.2.2That pursuant to Section 90MT(b) of the Family Law Act 1975 a base amount equal to the value of the real property situate at C Street, Suburb D, Queensland (“the Suburb D property”) (“the base amount”) of the interest of the Husband in the fund is allocated to the Wife (by which the Suburb D property shall be transferred to the Wife in full satisfaction of these Orders) from the interest of the Husband in the B Superannuation Fund (“the Fund”) and that the Wife’s entitlement in the fund accordingly be reduced to nil.

1.2.3That in accordance with Section 90 MJ of the Act whenever a splittable payment becomes payable in respect of the interest of the Husband in the Fund, the Wife is entitled to be paid the base amount the Husband’s interest in the fund (by way of the Suburb D property being transferred to the Wife in full satisfaction of these Orders) calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the Husband’s entitlement in the fund.

1.2.4That Paragraph 1.2.2 will have effect from the operative time.

1.2.5The operative time for the purposes of paragraph 1.2.4 is four (4) business days after the date of service of this order on the Trustee of the Fund.

1.2.6In the event that the superannuation split to the Wife pursuant to this order can be rolled over into a separate account to the Wife, each of the parties will do all such acts and things and execute all such documents as may be necessary to facilitate and to implement the order.

1.2.7That to affect the split referred to in paragraph 3 hereof, the parties do all such acts and things and sign all such documents as may be required to transfer the Suburb D property to the trustee of a Superannuation Fund as nominated by the Wife, and that all costs (including taxation if any) associated with the roll out, transfer or any other dealing with the property, be at the Wife’s expense.

1.2.8That contemporaneously with the transfer, or within 60 days of the date of these Orders (whichever is the earlier) referred to in paragraph 1.2.7.

1.2.8.1the Wife pay into the Fund the sum of $55,000.00 (Fifty Five Thousand Dollars);

1.2.8.2the Wife resign as a director of B Pty Ltd (if required) and relinquish any further interest in the fund and make no further claim on the fund;

1.2.8.3That the Wife thereafter indemnity and keep the Fund indemnified against all rates, taxes and outgoings of or with respect to the Suburb D property of whatsoever nature and kind.

1.2.8.4That the Husband indemnify the Wife in respect of any liabilities the Wife may have to the fund (subject to paragraph 1.2.7 herein).

1.3It is further Ordered that unless otherwise specified in the Orders or in these orders and except for purposes of enforcing the payment of any monies due under the Orders or these or any subsequent orders:

1.3.1Each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these orders;

1.3.2Each party forgoes any claim they may have to any superannuation benefits belonging to or earned by the other party;

1.3.3Each 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 the Orders or these orders;

1.3.4Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

2.That the Orders otherwise remain in full force and effect.

IT IS FURTHER ORDERED THAT:

3.The Hearing listed on 28 February 2013 be vacated.

4.The signed minute of consent orders as amended be marked Exhibit “A” and remain on the Court file.

5.Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

THE COURT NOTES:

A.That pursuant to Section 81 of the Family Law Act 1975 the parties agree that as far as practicable these orders will finally determine the financial relationships between them and avoid further proceedings between them.

B.The Wife shall hereafter make no contact with the Husband or the Husband’s Wife Ms E Callis.

C.The parties acknowledge and accept that they have resolved this matter without the completion of discovery, and that they have sufficient knowledge of the financial circumstances of the other party to enter into these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Callis & Callis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11308 of 2010

Ms S Callis

Applicant

And

Mr Callis

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me as a matter docketed to be heard by me on a final basis.  However, the parties availed themselves of a private mediation process, convened by Mr F, and have managed to resolve the situation, in the event that I am satisfied that the Court has jurisdiction to make certain orders.  On 23 December 2002, the parties entered into orders which were intended to alter finally the property interests between them and those orders contained a superannuation component. 

2. For reasons that I need not go into, because it is common ground and covered in the affidavit material, Mr Mellas urges upon me that I should make a finding that the superannuation aspects of the original property orders were impracticable within the meaning of section 79A, subsection (1)(b).  And further, that the husband has defaulted in carrying out obligations under the orders by not taking any steps to implement them within the meaning of section 79A, subsection (1)(c). 

3. Mr Wood does not seek to persuade me otherwise.  He does not consent to the order or consent to a finding being made in those terms, but he does not oppose it and, indeed, his submissions, as even-handed as they were, go to further satisfy me that the orders were both impracticable and that the husband has defaulted in his obligations under them.  Although Mr Wood would say that his obligations were significantly less than the obligations which the wife says I should be mindful of.  In the circumstances, I am satisfied that pursuant to section 79A, subsections (1)(b) and (c), the original orders ought to be varied.

4. The parties, at mediation, have resolved the basis upon which a variation should occur, if I am satisfied that it should occur, and I am.  In that respect, they have submitted minutes of proposed consent orders.  And with the three amendments which I have discussed with counsel this morning, I propose to make those orders.  I am satisfied that it is just and equitable to make the property order.  I am satisfied that the orders sought, when looked at with the earlier orders, are proper.  And I make these orders, which now finalises the property aspects between the parties. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 28 February 2013.

Associate: 

Date:  19 February 2014