FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHOATE & BAKER | [2008] FMCAfam 945 |
| FAMILY LAW – Alteration of property interests – add-backs – assessment of contribution – inheritance – assessment of future needs – implementation of orders having regard to high proportion of superannuation assets. |
| Family Law Act 1975, ss.75(2), 79 |
| Gosper v Gosper (1987) FLC 91-818 Milankov (2002) FLC 93-095 Norbis v Norbis (1986) 161 CLR 513 Townsend (1995) FLC 92-569 |
| Applicant: | MS CHOATE |
| Respondent: | MR BAKER |
| File number: | SYC 7540 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 12 June 2008 |
| Date of last submission: | 12 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Foster |
| Solicitors for the Applicant: | Peter Blackwell and Associates |
| Counsel for the Respondent: | Mr Kearney |
| Solicitors for the Respondent: | Matthews Dooley & Gibson |
ORDERS
That within 56 days the Husband transfer to the Wife all his right title and interest in the former matrimonial home situate at and known as Property W being the whole of the land comprised in Certificate of Title [1] by providing to the other party a duly stamped and executed Transfer.
That conditional upon and simultaneously with the transfer in accordance with Order 1 herein the Wife refinance the mortgage over the former matrimonial home into her name solely.
That should the Wife fail to comply with Orders 1 and/or 2 herein then each party has leave to relist this matter before Federal Magistrate Altobelli on 14 days notice to make orders for implementing orders 1 and 2.
That the Husband be declared the sole owner in law and equity of the property located at Property J.
That within fourteen (14) days of the date of these Orders the Husband sign all documents and give all necessary directions to Richardson Legal to pay to the Wife the funds held in trust on behalf of the parties.
That within fourteen (14) days of the date of these Orders the Wife make available for collection by the Husband all tools belonging to the Husband and/or his father at the former matrimonial home.
That in the event that the Husband within five (5) years of the date of these orders receives any cash or allocation of shares as a result of the demutualisation of MBF then forthwith upon the Husband being able to do so the Husband shall either (and at his sole election):
(7.1) do all things necessary to effect a distribution of such cash such that after deduction of any amounts payable by the Husband as a result of the receipt of such cash, including any taxation payable by the Husband, the Husband shall pay to the Wife an amount equal to one half of the net funds received…
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- AGLC
- Choate and Baker [2008] FMCAfam 945
- Case
- [2008] FMCAfam 945
- Decision Date
CaseChat Overview and Summary
The court considered the principles of equitable distribution and relevant legislation, including the Family Law Act 1975. It applied these principles to assess the contributions of each party and their respective entitlements. The court ordered that the husband transfer his interest in the former matrimonial home to the wife, subject to her refinancing the mortgage. Additionally, the court directed the husband to pay the wife half of any funds or shares received from the demutualisation of MBF within five years. The court also allocated superannuation benefits, determining the wife was entitled to a portion of the husband's superannuation interests.
In summary, the court's reasoning was grounded in the principles of equitable distribution and statutory requirements. It made specific orders for the transfer of property, payment of debts, and distribution of superannuation interests, ensuring an equitable outcome for both parties.
Orders
Orders of the court
1.
That within 56 days the Husband transfer to the Wife all his right title and interest in the former matrimonial home situate at and known as Property W being the whole of the land comprised in Certificate of Title [1] by providing to the other party a duly stamped and executed Transfer.
2.
That conditional upon and simultaneously with the transfer in accordance with Order 1 herein the Wife refinance the mortgage over the former matrimonial home into her name solely.
3.
That should the Wife fail to comply with Orders 1 and/or 2 herein then each party has leave to relist this matter before Federal Magistrate Altobelli on 14 days notice to make orders for implementing orders 1 and 2.
4.
That the Husband be declared the sole owner in law and equity of the property located at Property J.
5.
That within fourteen (14) days of the date of these Orders the Husband sign all documents and give all necessary directions to Richardson Legal to pay to the Wife the funds held in trust on behalf of the parties.
6.
That within fourteen (14) days of the date of these Orders the Wife make available for collection by the Husband all tools belonging to the Husband and/or his father at the former matrimonial home.
7.
That in the event that the Husband within five (5) years of the date of these orders receives any cash or allocation of shares as a result of the demutualisation of MBF then forthwith upon the Husband being able to do so the Husband shall either (and at his sole election):
(7.1) do all things necessary to effect a distribution of such cash such that after deduction of any amounts payable by the Husband as a result of the receipt of such cash, including any taxation payable by the Husband, the Husband shall pay to the Wife an amount equal to one half of the net funds received by the Husband; or
(7.2) do all things necessary to effect a sale of such shares and, after deduction of any costs of sale including any taxation payable by the Husband as a result of such sale, pay to the Wife an amount equal to one half of the net funds received by the Husband; or,
(7.3) pay to the Wife an amount equal to one half of the value of such shares, such value to be determined by the closing sale price of the shares on the Australian Stock Exchange seven (7) days after the first listing of such shares for unrestricted trading;
AND in the event that the Wife receives within five (5) years of the date of these orders any cash or allocation of shares as a result of the demutualisation of MBF then forthwith upon the Wife being able to do so the Wife shall either (and at her sole election):
(7.4) do all things necessary to effect a distribution of such cash such that after deduction of any amounts payable by the Wife as a result of the receipt of such cash, including any taxation payable by the Wife, the Wife shall pay to the Husband an amount equal to one half of the net funds received by the Wife; or
(7.5) do all things necessary to effect a sale of such shares and, after deduction of any costs of sale including any taxation payable by the Wife as a result of such sale, pay to the Husband an amount equal to one half of the net funds received by the Wife; or,
(7.6) pay to the Husband an amount equal to one half of the value of such shares, such value to be determined by the closing sale price of the shares on the Australian Stock Exchange seven (7) days after the first listing of such shares for unrestricted trading.
8.
That each party be declared the sole owner in law and equity of all items of personalty, chattels and financial resources in their name, possession or control not otherwise dealt with in these Orders including but not limited to bank accounts, any choses in action and superannuation benefits.
9.
That in the event that either party refuses or neglects to execute any deed or instrument the Registrar or Deputy Registrar of the Sydney Registry of the Family Court of Australia be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument upon being satisfied by Affidavit of such neglect or refusal. A party shall be deemed to be in default if that party refuses or neglects to sign any document within seven (7) days of being requested to execute that document, such request being made in writing.
10.
Pursuant to section 90MT(2) the Court determines that the values of the interest of Mr Baker in the State Authority Superannuation Scheme is $291,727.00.
11.
That a base amount of $116,143.00 is allocated as required by Section 90MT(4) of the Family Law Act 1975 to Ms Choate out of Mr Baker’s interest in the State Authority Superannuation Scheme.
12.
That in accordance with section 90MT(1)(a) of the Family Law Act 1975:-
(a) Ms Choate is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001; and
(b) Mr Baker’s entitlement to payments out of their interest in the State Authorities Superannuation Scheme and State Authority Non-Contributory Scheme and the entitlement of such other person to whom a splittable payment may be payable is correspondingly reduced by force of this order.
13.
That the Trustee of the SAS Trustee Corporation Pooled Fund (“the Trustee”) shall do all such acts and things and sign all documents as may be necessary to:-
(a) calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement created for Ms Choate by Orders 12 to 14 inclusive herein; and
(b) pay the entitlement whenever the Trustee makes a splittable payment out of Mr Baker’s interest in the State Authorities Superannuation Scheme.
14.
That these Orders have effect from the operative time and the operative time for these Orders is four (4) business days after a sealed copy of these Orders is served upon the Trustee.
15.
That this Order binds the Trustee of the State Authorities Superannuation Scheme.
16.
That within the (fourteen) 14 days from the date of the making of these Orders the husband transfer to the wife all his right, title and interest in the jointly owned Toyota Spacia motor vehicle registration number [V].
17.
That the husband pay all monies due and owing on the parties joint
St George Bank Mastercard and that the husband indemnify and keep indemnified the wife in respect thereof.
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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