Calovich & Calovich

Case [2021] FCCA 1235

FEDERAL CIRCUIT COURT OF AUSTRALIA

Calovich & Calovich [2021] FCCA 1235

File number(s): SYC 6712 of 2018
Judgment of: JUDGE BECKHOUSE
Date of judgment: 2 June 2021
Catchwords: FAMILY LAW – Property – alteration of property interests – long marriage - family loan – equitable interest – caveat –contributions – redundancy – total and permanent disability – motor vehicle accident payout - future needs
Legislation:

Family Law Act 1975 (Cth) ss 75, 75(2), 78, 79, 81, 90XT(1)(b), 106A

Real Property Act1900 (NSW) s 74F

Family Law (Superannuation) Regulations 2001
Cases cited:

Aleksovski & Aleksovski [1996] FamCA 111

Falcken & Weule [2019] FamCAFC 140
G & G [1984] FamCA 60
Hickey v Hickey & Attorney-General of the Commonwealth [2003] FamCA
In the Marriage of Biltoft [1995] FamCA 45
In the Marriage of Petersens [1981] FamCA 50
Jabour and Jabour [2019] FamCAFC 78
Pierce & Pierce [1998] FamCA 74
Stanford v Stanford [2012] HCA 52

Williams & Williams [2007] FamCA 313
Number of paragraphs: 136
Date of hearing: 3-4 May 2021
Place: Sydney
Solicitor for the Applicant: Mr Reeve of Marsdens Law Group
Solicitor for the Respondent: Vaughan Zarb & Co
Counsel for the Respondent: Mr Dura

ORDERS

SYC 6712 of 2018
BETWEEN:

MR CALOVICH

Applicant
AND:

MS CALOVICH

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

3 JUNE 2021

ON A FINAL BASIS THE COURT ORDERS THAT:

1.Within 120 days from the date of these Orders the Wife shall pay to the Husband, or as he may direct in writing, the sum of $273,638.76.

2.Simultaneously with the Wife’s compliance with the preceding Order, the Husband shall do all acts and things and sign all documents necessary to transfer all his right, title and interest in the former matrimonial home known as and situate at B Street, Suburb C being the whole of the land contained in folio identifier ... (“the B Street, Suburb C property”) to the Wife.

3.Should the Wife fail or refuse to comply with Order 1 above by the due date, then failing agreement, the parties shall join in the sale of the B Street, Suburb C property by listing it for sale with a real estate agent active in selling residential real estate in the Suburb D/Suburb E/Suburb F area for the best price reasonably attainable within 30 days of the Wife’s default.

4.Upon the sale of the B Street, Suburb C property, the parties shall provide all necessary instructions to cause the proceeds of sale be applied as follows:

(a)The payment of all selling costs associated with the sale of the B Street, Suburb C property;

(b)The payment of all legal costs associated with the sale of the B Street, Suburb C property;

(c)The payment to the Husband in the sum of $273,638.76 (plus interest at the rate prescribed by the Family Law Rules calculated from the due date for payment in accordance with Order 1 to the actual date of payment); and

(d)The balance then remaining to the Wife.

5.Except as otherwise provided…

Continue reading Calovich & Calovich

Sign in free to access the full text

Details
AGLC
Calovich & Calovich [2021] FCCA 1235
Case
[2021] FCCA 1235
Decision Date

CaseChat Overview and Summary

In the matter of *Calovich & Calovich*, Beckhouse J of the Family Court of Australia was required to determine property settlement orders between Mr Calovich (the Husband) and Ms Calovich (the Wife). The dispute concerned the division of assets and liabilities accumulated during the parties' marriage, which commenced in 1995 and ended with separation in April 2017.

The court was tasked with determining the composition of the asset pool available for distribution and how these assets should be divided between the parties. This involved assessing the contributions made by each party, including initial contributions to property, financial contributions from third parties, redundancy payouts, superannuation entitlements, and proceeds from motor vehicle accident settlements. The court also needed to consider the impact of the Wife's medical condition and subsequent inability to return to work on the financial circumstances of the marriage.

Beckhouse J reasoned that while the Wife brought the H Street property into the marriage, with significant financial contributions from her father, Mr G, both parties pooled their incomes for day-to-day expenses and improvements to properties. The court acknowledged contributions made by both parties and Mr G to renovations and property acquisitions. The Husband's redundancy payouts and the Wife's superannuation payout and motor vehicle accident settlements were also considered, with the court finding that a substantial portion of these funds were applied to reduce the mortgage over the B Street property. The court applied principles of property division under the *Family Law Act 1975* (Cth), considering contributions, financial resources, and the future needs of each party.

The final orders provided for the Wife to pay the Husband a sum of $273,638.76 within 120 days, in exchange for which the Husband would transfer his interest in the former matrimonial home at B Street, Suburb C to the Wife. Should the Wife default on this payment, the property was to be sold, with proceeds applied first to selling and legal costs, then to the Husband's payment, and the balance to the Wife. The orders also stipulated that each party would retain their respective bank accounts, motor vehicles, personalty, and other property, with the exception of a 50% entitlement for the Wife to a splittable payment from the Husband's superannuation fund.

Orders

Orders of the court

SYC 6712 of 2018

BETWEEN:

MR CALOVICH

Applicant

AND:

MS CALOVICH

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

3 JUNE 2021

ON A FINAL BASIS THE COURT ORDERS THAT:

1. Within 120 days from the date of these Orders the Wife shall pay to the Husband, or as he may direct in writing, the sum of $273,638.76.

2. Simultaneously with the Wife’s compliance with the preceding Order, the Husband shall do all acts and things and sign all documents necessary to transfer all his right, title and interest in the former matrimonial home known as and situate at B Street, Suburb C being the whole of the land contained in folio identifier ... (“the B Street, Suburb C property”) to the Wife.

3. Should the Wife fail or refuse to comply with Order 1 above by the due date, then failing agreement, the parties shall join in the sale of the B Street, Suburb C property by listing it for sale with a real estate agent active in selling residential real estate in the Suburb D/Suburb E/Suburb F area for the best price reasonably attainable within 30 days of the Wife’s default.

4. Upon the sale of the B Street, Suburb C property, the parties shall provide all necessary instructions to cause the proceeds of sale be applied as follows:

(a) The payment of all selling costs associated with the sale of the B Street, Suburb C property;

(b) The payment of all legal costs associated with the sale of the B Street, Suburb C property;

(c) The payment to the Husband in the sum of $273,638.76 (plus interest at the rate prescribed by the Family Law Rules calculated from the due date for payment in accordance with Order 1 to the actual date of payment); and

(d) The balance then remaining to the Wife.

5. Except as otherwise provided for by these Orders, the Husband shall retain, to the exclusion of the Wife, the sole right, title and interest in the following property:

(a) All funds standing to his credit in any bank account;

(b) His motor vehicle;

(c) His personalty and household contents;

(d) His superannuation entitlements; and

(e) Any and all other items of personalty and property currently in his possession and/or to which he has an entitlement.

6. Except as otherwise provided for by these Orders, the Wife shall retain, to the exclusion of the Husband, the sole right, title and interest in the following property:

(a) All funds standing to her credit in any bank account;

(b) His motor vehicle;

(c) Her personalty and household contents; and

(d) Any and all other items of personalty and property currently in her possession and/or to which she has an entitlement.

7. Whenever a splittable payment becomes payable to Mr Calovich from his interest in the Super Fund U (Member Name: Mr Calovich, Member ID: ...) it is ordered that Ms Calovich is entitled to 50% of the said interest, being the specified percentage in accordance with section 90MT(1)(b) of the Family Law Act 1975, of the splittable payment and there is a corresponding reduction in the entitlement of Mr Calovich which he would otherwise have had but for these Orders.

8. The operative time for the purpose of these orders is the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee of the Fund Or the date of the valuation report of the member's interest in the Fund.

9. Having been accorded procedural fairness in relation to the marking of this Order, this Order binds the Trustee of the Fund.

10. The Trustee of the Fund, the husband and the wife, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 shall do all acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the in accordance with this Order.

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

On 17 August 2020 the parties were ordered to attend a Conciliation Conference and the matter was set down for a two (2) day final hearing on 3 and 4 May 2021.RELEVANT FACTS The parties met at a relatively young age. In 1994 a property located at H Street, Suburb J in New South Wales was purchased in the Wife’s name with the use of $150,000 provided by her father, Mr G. The Wife also contributed approximately $20,000 to the acquisition costs. Upon their marriage in 1995 the parties moved into the H Street, Suburb J property. At the time of their marriage the Husband was employed as a factory worker at Employer P, and the Wife was employed as a customer service officer the Employer Q. Improvements were made to H Street, Suburb J by the parties and family members. Shortly after the birth of X, in 2005 the parties jointly purchased a property at B Street, Suburb C for $475,000. A loan for the full purchase price was secured against both B Street, Suburb C and H Street, Suburb J. The parties moved into the B Street, Suburb C property in 2005 and the Husband’s brother rented the H Street, Suburb J property and paid rent to the parties. In 2006 the Husband received a redundancy payout of $90,000, some of which was applied to reducing the mortgage over B Street, Suburb C. He was unemployed for a period of time. In 2006 H Street, Suburb J was placed on the market for sale and settlement took place in 2006. The proceeds of sale were applied to reduce the loan secured by way of mortgage over B Street, Suburb C. In 2006 a caveat was registered on the title of B Street, Suburb C (with the consent of the parties) by Mr G who claimed an equitable interest of 80% in B Street, Suburb C. In 2011 the Wife was diagnosed with a medical condition. She elected to be treated privately by Dr R at a cost of $65,000 which was funded by Mr G. She was hospitalised for over one month. She never returned to her position of employment at the Employer Q. In 2011 the Wife was involved in a motor vehicle accident. In 2015 she received a payment of $171,618.07 as settlement for the motor vehicle accident. In 2012 the Wife was involved in another motor vehicle accident. In 2015 she received a payment of $28,607.40 in settlement of the motor vehicle accident. In 2014 the Wife received a payout of $167,517.43 from her superannuation fund. In April 2017 the parties separated and the Husband left the former matrimonial home in B Street, Suburb C. In 2021 Ms N underwent elective knee surgery at a cost of $15,000, funded partly by her and by monies procured by the Husband. On around 8 April 2021 Mr G was served with a notice of proposed lapsing of the caveat. [1] A title search conducted on 4 May 2021 indicates that the caveat has lapsed.[2][1] Exhibit 4.[2] Exhibit 10.EVIDENCE The Husband was legally represented and relied upon the following material:(a)Amended Initiating Application filed 8 April 2021(b)Affidavit of Mr Calovich filed 8 April 2021(c)Financial Statement filed 8 April 2021

Evidence

Evidence Before The Court

On around 8 April 2021 Mr G was served with a notice of proposed lapsing of the caveat. [1] A title search conducted on 4 May 2021 indicates that the caveat has lapsed.[2][1] Exhibit 4.[2] Exhibit 10.EVIDENCE The Husband was legally represented and relied upon the following material:(a)Amended Initiating Application filed 8 April 2021(b)Affidavit of Mr Calovich filed 8 April 2021(c)Financial Statement filed 8 April 2021 The Wife was legally represented and relied upon the following material:(a)Response to Initiating Application filed 16 November 2018(b)Affidavit of Ms Calovich filed 21 April 2021(c)Financial Statement filed 21 April 2021(d)Affidavit of Mr G filed 21 April 2021 Counsel for the parties prepared lists of objections to the evidence filed. Some objections were resolved by consent. Those that were not, were argued and determined prior to the commencement of the hearing. The following documents were relied upon by the parties, admitted into evidence and marked as exhibits:(a)Exhibit 1 - Letter discussing personal loan issued by Bank S to Applicant Father on 19 February 2021; (b)Exhibit 2 - Caveat signed in 2006 and Notice of Caveat of 2006;(c)Exhibit 3 - Husband’s Initiating Application filed on 22 October 2018; (d)Exhibit 4 - Letter addressed to Mr G dated 8 April 2021 and Lapsing Notice (Pages 119-120 of the Joint Tender Bundle);(e)Exhibit 5 - Proof of Voluminous Documents prepared pursuant to s 50 of the Evidence Act ( Page 1 of the Joint Tender Bundle);(f)Exhibit 6 - Letter from Employer Q Super to Respondent Wife dated 2 May 2015; (g)Exhibit 7 - Financial Statement of Respondent Wife filed 16 November 2018; (h)Exhibit 8 - Affidavit of Respondent Wife filed 16 November 2018; (i)Exhibit 9 - Joint Balance Sheet; (j)Exhibit 10 - Title Search dated 4 May 2021;(k)Exhibit 11 - Letters addressed to the parties from their respective legal representatives estimating legal fees dated 3 May 2021; (l)Exhibit 12 - Documents identified as 8 (pages 44-47), 9 (pages 48-51), and 10 (pages 52-56) in the Joint Tender Bundle Index (Tax Return Documents); (m)Exhibit 13 - Letter from Mr T to Federal Circuit Court of Australia dated 4 March 2021 (Page 103 of the Joint Tender Bundle); (n)Exhibit 14 - Correspondence (various dates in 1994) from the solicitor acting in the 1994 purchase of the H Street, Suburb J Property (Pages 105-108 of the Joint Tender Bundle);(o)Exhibit 15 - Notice to Produce addressed to the Respondent Wife (Pages 121-122 of the Joint Tender Bundle);(p)Exhibit 16 - Correspondence from Marsdens Law Group (Pages 123-127 Joint Tender Bundle); and (q)Exhibit 17 - Letter from Super Fund U dated 19 October 2020 and Letter to Super Fund U from Marsdens Law Group dated 15 October 2020 (Page 193 of the Joint Tender Bundle). The Husband and Wife were each called to give evidence and were cross-examined. I found that they gave evidence truthfully, although at times their evidence was self-serving. I generally found them both to be credible witnesses.

Decision

Reasons for decision

He provides no other evidence to support the advancement of these monies, the terms on which the money was advanced or how the funds were applied. For this reason they have not been included in the pool.Conclusion’s on the Asset Pool For the reasons above, I find that the asset pool available for distribution to the parties is made up of the following:- I accept that the Wife brought into the marriage the H Street, Suburb J property recently purchased for $150,000. I find that Mr G contributed $150,000 and the Wife contributed $20,000 towards its acquisition. I also accept that it was the intention of Mr G that the Wife be the primary beneficiary of his contribution. There were no significant contributions made by the Husband at the commencement of the marriage. At the time of the marriage the parties were both employed on a full-time basis. Their incomes were pooled and used to meet their day-to-day expenses and the outgoings arising from H Street, Suburb J. Improvements were undertaken to H Street, Suburb J over a 10 year period. These works were undertaken as a combined effort or ‘family affair’ with assistance provided by the Wife’s father, the Husband and on occasions the Husband’s brother. Mr G contributed some small amounts of money towards these renovations (such as for the pergola), and other expenses (such as air conditioning and the construction of a ‘Queensland room’) were met by the parties. When the parties purchased B Street, Suburb C further improvements were made with the combined efforts of the Husband and on occasions his brother and the Wife’s father. I accept that Mr G also made contributions towards the B Street, Suburb C property including paying for the construction of a new fence and electric gate. In around 2005 the Husband received a lump sum payout from the Employer P of $12,000 and later $7,000. The sum of $12,000 was applied towards the loan over B Street, Suburb C. In 2006 the Husband received a voluntary redundancy in the sum of $90,000. Some of this money was used to acquire a car and fund the family holiday. The balance of at least $70,000 was deposited into the loan account encumbering the B Street, Suburb C property. In 2011, the Wife underwent surgery. There is no dispute that Mr G funded the operation in the sum of $65,000, and that this essentially preserved the superannuation entitlements that the Husband had considered drawing on. The Wife did not return to work after the operation and received a lump sum superannuation payout in 2014 which was deposited into the loan account encumbering the B Street, Suburb C property. The payout consisted of a Total and Permanent Disability (‘TPD’) insured component of $129,076 and a superannuation balance of $53,703. After-tax, the total payment received was payment $167, 517.43. Following a motor vehicle accident in 2015 the Wife received a further payout in the sum of $171,618.07 and a few weeks later an additional payment of $28,607.40 (totalling $200,225.47). Of this amount the Wife says she purchased a motor vehicle, expended funds on the renovation of the kitchen and the laundry, went on an overseas holiday and used the balance for her day-to-day expenses.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.