FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Darvis & Darvis [2024] FedCFamC2F 575
File number(s): MLC 13287 of 2022 Judgment of: JUDGE HARLAND Date of judgment: 9 May 2024 Catchwords: FAMILY LAW – property - long marriage – addbacks – consideration to be given to initial contributions - whether there should be an adjustment pursuant to s.75(2) - wife seeking periodic spousal maintenance - whether or not there should be an order for lump sum or periodic spousal maintenance Legislation: Evidence Act 1995 (Cth) s.50
Family Law Act 1975 (Cth) ss. 72, 75(2), 77A, 79(1), 79(2), 79(4), 90XE, 90ZXA , 90XT(1)(a)
Family Law (Superannuation) Regulations 2001 Part VI
Income Tax Assessment Act 1997 (Cth) s. 126.5
Cases cited: Beaton & Ballam [2014] FCWA 20
Beklar & Beklar [2013] FamCA 327
C & C [1998] FamCA 143
C & C [2005] FamCA 429
Clauson & Clauson [1995] FamCA 10
Eliades & Eliades (1981) FLC 91-022
Gould & Gould (1995) FamCA 142
Harrison & Harrison (1996) FamCA 12
AJO & GRO (2005) FLC 93-218
Petrellis & Petrellis [2022] FedCFamC2F 1375
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi (2018) FLC 93-858
Division: Division 2 Family Law Number of paragraphs: 191 Date of last submission/s: 26 February 2024 Date of hearing: 7, 8 December 2023 Place: Melbourne Counsel for the Applicant Ms Fisken Solicitor for the Applicant Forte Family Lawyers Counsel for the Respondent Ms Petrie Solicitor for the Respondent Watts McCray ORDERS
MLC 13287 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DARVIS
Applicant
AND: MS DARVIS
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
9 MAY 2024
THE COURT ORDERS THAT:
1.Within 28 days of the date of these orders, the net proceeds of sale of B Street, Suburb C, more particularly described in Certificate of Title, folio …, currently held on trust in the husband’s solicitor’s trust account be applied as follows:
(a)Firstly, $59,850.70 be retained in the husband’s solicitor’s trust account to pay any costs and expenses associated with any Capital Gains Taxation liability arising from the sale; and
(b)In the event the Capital Gains Taxation liability is in excess of $59,850.70, the husband pay 60% and the wife pay 40% of the outstanding amount;
(c)In the event the Capital Gains Taxation liability is less than $59,850.70, the husband receive 60% and the wife receive 40% of the remaining amount; and
(d)The balance to the husband.
2.Within 28 days of the date of these orders, both parties do all acts and things and sign all documents as may be required to sell all D Company (1,070) shares held jointly by the husband and the wife.
3.The proceeds of the sale of the D Company shares be applied as follows:
(a)Firstly, to pay all costs, commissions and expenses of the sale of the D Company shares;
(b)Secondly, to pay all Capital Gains Taxation liability arising from the sale of the D Company shares; and
(c)The balance to the husband.
4.Within…
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CaseChat Overview and Summary
The court gave careful consideration to the evidence presented, including the respective financial contributions of each party, the length of the marriage, and the future needs of the wife. In its reasoning, the court held that an adjustment should be made to the property pool in favour of Ms Darvis due to her substantial initial contributions and the length of the marriage. The court also found that an order for periodic spousal maintenance should be made, considering the wife's financial needs and the husband's capacity to pay. The court concluded that the wife was entitled to $100,000 for the provision of maintenance, and outlined the distribution of various assets, superannuation, and liabilities between the parties.
The court made detailed orders regarding the division of real and personal property, superannuation, and other financial assets. These included the sale of specific properties and shares, the distribution of proceeds from these sales, and the division of personal belongings. The court also restrained the husband from making certain actions that could affect the wife's entitlement to her share of the superannuation fund. The final orders ensured that the division of assets was fair and equitable, taking into account the unique circumstances of the marriage and the contributions of each party.
Orders
Orders of the court
MLC 13287 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR DARVIS
Applicant
AND:
MS DARVIS
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
9 MAY 2024
THE COURT ORDERS THAT:
1. Within 28 days of the date of these orders, the net proceeds of sale of B Street, Suburb C, more particularly described in Certificate of Title, folio …, currently held on trust in the husband’s solicitor’s trust account be applied as follows:
(a) Firstly, $59,850.70 be retained in the husband’s solicitor’s trust account to pay any costs and expenses associated with any Capital Gains Taxation liability arising from the sale; and
(b) In the event the Capital Gains Taxation liability is in excess of $59,850.70, the husband pay 60% and the wife pay 40% of the outstanding amount;
(c) In the event the Capital Gains Taxation liability is less than $59,850.70, the husband receive 60% and the wife receive 40% of the remaining amount; and
(d) The balance to the husband.
2. Within 28 days of the date of these orders, both parties do all acts and things and sign all documents as may be required to sell all D Company (1,070) shares held jointly by the husband and the wife.
3. The proceeds of the sale of the D Company shares be applied as follows:
(a) Firstly, to pay all costs, commissions and expenses of the sale of the D Company shares;
(b) Secondly, to pay all Capital Gains Taxation liability arising from the sale of the D Company shares; and
(c) The balance to the husband.
4. Within 28 days of the date of these orders, at the wife’s sole expense, the wife do all acts and things and sign all documents as may be required to transfer all E Company (4,700) shares held in the wife's name to the husband.
5. All previous interim spousal maintenance orders be discharged.
6. Pursuant to s.77A of the Family Law Act 1975 (Cth) the amount of $100,000 is attributable to the provision of maintenance for the wife.
7. Within 28 days of the date of these orders, the wife do all acts and things necessary to transfer to the husband the sum of $158,528.02, less the $100,000 attributable to the provision of maintenance pursuant to order 6 above.
8. Having been accorded procedural fairness in relation to the making of these orders, orders 8 to 11 (inclusive) are binding upon Super Fund 1 (“the Trustee”) as the trustee of the Super Fund 1 (“the Fund”).
9. Pursuant to Section 90XT(1)(a) of the Act, whenever a splittable payment within the meaning of section 90XE of the Act becomes payable in respect of the Member's interest in the Fund (Member No. …) the Non-Member is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”), using a base amount as at the operative date of $369,235.80 reflecting a 60%-40% division of the superannuation pool and there be a corresponding reduction in the entitlement the Member would have had in the Fund but for these orders.
10. The operative date referred to in order 9 is four business days after the date a certified copy of the sealed Orders is served on the Trustee of the Fund.
11. That until the happening of any of:
(a) The establishment of a separate account in the name of the Non-Member in the Fund; or
(b) The transfer or "rolling over" into another superannuation fund of the payment split created by order 9; or
(c) The Non-Member satisfying a condition of release and being paid the payment split created by order 9; or
(d) The Non-Member executing a waiver of rights within the meaning of section 90ZXA of the Act regarding the payment split created by order 9:
the Member be and is restrained by himself, his servants, or agents from executing a death benefit nomination in favour of any person and/or doing any other act or thing which would render any part or his interest in the Fund “a non-splittable payment” within the meaning of Regulation 12 or 13 of the Regulations or from doing any act or thing which would prevent the Non-Member Spouse or her legal personal representative, to the extent permitted by law. from receiving the benefit of the Fund to which she is entitled pursuant to these Orders.
12. The husband retain to the exclusion of the wife:
(a) The dining room table and chairs; and
(b) The framed painting.
13. The wife retain to the exclusion of the husband:
(a) The Painting from the Suburb F property; and
(b) The large, heavy wooden ornament.
14. Within 28 days of the date of these orders:
(a) At the husband’s sole expense, the wife return the tools located in the shed at the H Street property formerly owned by the husband's father; and
(b) At the wife’s sole expense, the husband make available, all items contained within ‘Annexure A’ of the wife’s Further Amended Response to Initiating Application filed on 23 November 2023 stored in the Melbourne storage unit that are not referred to in order 12.
15. The husband otherwise retain, to the exclusion of the wife:
(a) All monies standing to the credit in any bank accounts in their sole name;
(b) E Company Shares (4,600 vested);
(c) E Company shares (1,016 vested in late 2023);
(d) G Company shares (5,220 shares);
(e) Motor Vehicle 1;
(f) Motor Vehicle 2 and Motor Vehicle 3;
(g) Addback of $279,787.00 being the paid legal fees and disbursements up to 4 December 2023;
(h) Addback of $32,000.00 being the proceeds of sale of Motor Vehicle 4;
(i) Balance of the inheritance of $17,050.00; and
(j) E Company shares (4550 unvested) of $171,202.00.
16. The wife otherwise retain, to the exclusion of the husband:
(a) The real property situate at H Street, Suburb C, New South Wales, more particularly described in Certificate of Title folio …;
(b) All monies standing to the credit in any bank accounts in their sole name;
(c) G Company Shares (3,140 shares);
(d) Motor Vehicle 5; and
(e) Addback of $111,525.00, being the paid legal fees and disbursements up to 7 December 2023.
17. Within 28 days of the date of these orders, the husband be at liberty to remove the wife from the J Company private health insurance policy no. ….
18. Within 28 days of the date of these orders, the parties do all acts and things and sign all documents necessary to transfer to the wife (if required) or cancel (at the wife’s election) the K Company Insurance Policy no. ….
19. The wife be responsible for all payments due and payable in respect of the K Company Pet Insurance and indemnify the husband against all liabilities past, present and future in respect of the K Company Pet Insurance Policy.
20. Subject to the above orders, the parties shall be responsible for:
(a) All loans, debts, leases, hire purchase and other liabilities standing in their sole names;
(b) All credit cards in their sole names;
(c) Any and all taxation liabilities in their names;
AND the parties shall indemnify and keep indemnified the other party in respect of any and all such liabilities.
21. Any joint tenancy of the parties in any real or personal estate is expressly severed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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