FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANIELS & DANIELS | [2015] FCCA 2569 |
| Catchwords: FAMILY LAW – Property – long marriage – consideration of contributions by each party, both of a financial and non-financial nature – whether consideration should be given to an add-back of monies received by one party from joint funds – consideration as to values to allot to various properties when not agreed and no valuation available – consideration of future needs and obligations of each party – consideration of future possible medical conditions and effect upon future earning capacity. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 79(4) |
| Pastrikos and Pastrikos (1980) FLC 91-897 Stanford and Stanford Lots of Questions – Very Few Answers, Martin Barfeld QC of the Victorian Bar |
| Applicant: | MS DANIELS |
| Respondent: | MR DANIELS |
| File Number: | TVC 1272 of 2013 |
| Judgment of: | Judge Coker |
| Hearing dates: | 23 & 24 April 2015 |
| Date of Last Submission: | 24 April 2015 |
| Delivered at: | Townsville |
| Delivered on: | 5 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mayes |
| Solicitors for the Applicant: | Roberts Nehmer McKee |
| Counsel for the Respondent: | Mr Hibble |
| Solicitors for the Respondent: | Groves & Clark Solicitors |
ORDERS
BY WAY OF FINAL PROPERTY SETTLEMENT
Within 30 days from the date of these Orders, the Wife must do all acts and things and sign all documents necessary to transfer to the Husband, at the Husband’s expense, all of her right, title and interest in the property known as Property D, being the while of the land more particularly described as (omitted) bearing Title Reference (omitted) (the “Property D property”).
That simultaneously with the transfer pursuant to Order 1, the parties must do all acts and things and sign all documents necessary to discharge the mortgages of the parties to (omitted) Bank secured by the Property D property, being mortgage numbers (omitted) and (omitted).
That the Husband indemnify and keep indemnified the Wife in relation to all expenses for the Property D property including but not limited to mortgage repayments, rates, insurance and any future Capital Gains Tax for this property.
That contemporaneously with the transfer pursuant to Order 1 herein, the Husband pay to the Wife the amount of $326,239.29 and do all such acts and things and sign all documents necessary to transfer the joint share portfolio to the Wife, at the Wife’s expense.
That should the payment of $326,239.29 as required pursuant to Order 4 herein not be effected by the Husband to the Wife within the 30 days prescribed, then that the property…
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- Daniels and Daniels [2015] FCCA 2569
- Case
- [2015] FCCA 2569
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CaseChat Overview and Summary
The court was required to determine the specific terms of the property settlement, including the valuation and distribution of assets such as real estate, a share portfolio, bank accounts, and motor vehicles. A key legal issue was the division of superannuation entitlements, necessitating compliance with the relevant provisions of the *Family Law Act 1975* and the *Family Law (Superannuation) Regulations 2001*. The court also had to address the allocation of liabilities and the mutual release of debts and claims between the parties, as well as the mechanism for enforcing the orders should either party fail to comply.
The court's reasoning, as reflected in the orders, involved a comprehensive division of the parties' financial resources. The Husband was ordered to transfer Property D to the Wife, with the Husband indemnifying the Wife for all expenses related to that property, and to pay a specific sum to the Wife. The parties were to divide joint bank accounts in specified percentages. The Husband was to retain certain assets, including a motor vehicle and a business, while the Wife was to receive another motor vehicle. The orders stipulated a base amount to be allocated to the Wife from the Husband's superannuation fund, with specific provisions for its payment and the operative time. The court also included standard provisions for mutual release of debts and claims, and a detailed enforcement mechanism allowing a Registrar to execute documents on behalf of a non-compliant party, with the non-compliant party bearing the costs of enforcement.
Orders
Orders of the court
BY WAY OF FINAL PROPERTY SETTLEMENT
1.
Within 30 days from the date of these Orders, the Wife must do all acts and things and sign all documents necessary to transfer to the Husband, at the Husband’s expense, all of her right, title and interest in the property known as Property D, being the while of the land more particularly described as (omitted) bearing Title Reference (omitted) (the “Property D property”).
2.
That simultaneously with the transfer pursuant to Order 1, the parties must do all acts and things and sign all documents necessary to discharge the mortgages of the parties to (omitted) Bank secured by the Property D property, being mortgage numbers (omitted) and (omitted).
3.
That the Husband indemnify and keep indemnified the Wife in relation to all expenses for the Property D property including but not limited to mortgage repayments, rates, insurance and any future Capital Gains Tax for this property.
4.
That contemporaneously with the transfer pursuant to Order 1 herein, the Husband pay to the Wife the amount of $326,239.29 and do all such acts and things and sign all documents necessary to transfer the joint share portfolio to the Wife, at the Wife’s expense.
5.
That should the payment of $326,239.29 as required pursuant to Order 4 herein not be effected by the Husband to the Wife within the 30 days prescribed, then that the property be sold and that each party do all acts and things and sign all documents necessary to effect the sale of the property and that after the payment of normal outgoings associated with the sale of the property, the Wife receive the sum of $326,239.29 and the balance be retained by the Husband.
6.
That within 30 days of the date of these orders the Husband and Wife do all such acts and things and sign all documents necessary to distribute to the wife 57.5 percent of any funds held in the parties’ joint bank accounts and the Husband to receive 42.5 percent of any such funds and to then close such accounts including but not limited to:
(a) (omitted) Cheque Account having bank account No (omitted);
(b) (omitted) Classic Business Account having bank account No (omitted); and
(c) (omitted) Cash Management Account having bank account No (omitted).
7.
That within 30 days from the date of these Orders, the parties must do all acts and things and sign all documents necessary to transfer to the Wife, at the Wife’s expense, the registration in the Nissan Patrol motor vehicle, registration number (omitted).
8.
That the Husband retain sole right, title and interest in the following:
(a) The Nissan Patrol motor vehicle with registration number (omitted); and
(b) The shipping container located at the Property D property, and all contents of that container;
(c) The business trading as (omitted business).
9.
That the Wife hereby relinquish and not pursue any claim for any entitlement or distribution allocated or payable to her from any business interest of the parties, including any past or future allocations or payments providing that the Husband assumes liability for and indemnifies the Wife for any associated taxation consequences.
10.
That Orders 10 to 15 (inclusive) of these Orders are binding on the trustee of (omitted) Super Fund.
11.
That a base amount of $78,858.13 be allocated to the Wife out of the Husband’s interest in the (omitted) Super Fund, member number (omitted).
12.
That in accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s interest in the (omitted) Super Fund, member number (omitted), the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
13.
That Orders 11-12 of these Orders have effect from the operative time.
14.
That the operative time for the purpose of these Orders is four business days after the date of service of a certified copy of the final orders upon the trustee of the (omitted) Super Fund.
15.
The trustee of the (omitted) Super Fund in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the Wife in accordance with Order 11 herein.
16.
That subject to any other Order to the contrary, the parties are solely, legally and beneficially entitled to all other real and personal property of whatsoever nature and kind in their respective ownership, possession or control as at the date of these Orders, including but not limited to money on deposit, shareholdings, insurance policies, motor vehicles, furniture, furnishings and effects.
17.
That subject to Order 11, each party be solely, legally and beneficially entitled to all superannuation entitlements held in their respective names.
18.
That from the date of these Orders, the Husband must do all things necessary to indemnify the keep indemnified, the Wife in respect of any and all liabilities held in his name.
19.
That from the date of these Orders, the Wife must do all things necessary to indemnify the keep indemnified, the Husband in respect of any and all liabilities held in her name.
20.
That subject to any other order to the contrary, each party mutually releases the other from all debts or claims owing from one to the other.
21.
That if either or both of the parties fails to comply with these Orders, including doing all such things and executing all such documents as may be necessary, within the time provided:
(a) A Registrar of the Townsville Registry of the Federal Circuit Court of Australia be authorised to do all such acts and things and execute all such documents on behalf of either or both parties;
(b) An Affidavit of the Solicitor for the party seeking to give effect to these Orders shall be sufficient proof of the default of the other party necessary to give effect to this Order; and
(c) In the event that either party procures compliance with these Orders pursuant to this Order 21, then the party procuring such compliance will be indemnified by the party for his or her costs and expenses incurred in obtaining such compliance.
22.
Should either party seek an Order for costs against the other party then that party file and serve any written submissions as to costs within 28 days of the date of this Order and the other party is to file and serve any response within 14 days of service.
23.
Any determination as to costs will be heard in chambers unless an appearance is specifically requested.
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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