FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEVLIN & MISTRY & ANOR | [2016] FCCA 1616 |
| Catchwords: FAMILY LAW – Property settlement – two children – orders altering property interests – costs. |
| Legislation: Family Law Act 1975, ss.75(2), 79, 79(2)(a) 79(2)(b), 79(2)(c), 79(4)(a), 79(4)(b), 79(4)(c), 79(4)(d), 79(4)(e), 79(4)(f), 117(2), 117(2)(a) |
| Cases cited: |
| Applicant: | MR DEVLIN |
| First Respondent: | MS MISTRY |
| Second Respondent: | MR WISEMAN |
| File Number: | MLC 7748 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 17 June 2016 |
| Date of Last Submission: | 17 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Fisken |
| Solicitors for the Applicant: | Logie Smith Lanyon |
| Counsel for the First Respondent: | Mr Scriva |
| Solicitors for the First Respondent: | Boyle Telfer & Kooblal Solicitors |
| The Second Respondent in Person | |
ORDERS
IT IS DECLARED THAT:
Pursuant to section 78 of the Family Law Act (Cth) that the real property situate at and known as Property H in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the (omitted) property”) is owned by the parties as follows:
(a)The husband owns a one third interest
(b)The wife owns a one third interest
(c)The second named respondent owns a one third interest.
IT IS ORDERED THAT:
Within 60 days of the date of these Orders each party shall do all things and execute all documents necessary to cause the (omitted) property to be sold by private treaty at the earliest possible date and on the following terms and conditions:
(a)The real estate agent appointed to act in respect of the sale shall be Mr P of (omitted) Real Estate of (omitted), unless otherwise agreed;
(b)The conveyancing solicitor in respect of the sale shall be the wife’s lawyers, Kooblal Lawyers, unless otherwise agreed;
(c)The reserve price for the sale of the (omitted) property shall be $380,000 unless otherwise agreed in consultation with the agent;
(d)The property shall be listed for sale by public auction to take place on or before 12 November 2016 unless otherwise agreed; and
(e)In the event that the property is not sold by public auction, then it shall be listed for sale by private treaty for a further period to be agreed and at an agreed listing price, and failing such agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee.
For the purposes of Order 2 above, the Real Estate Agent to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of the date of these Orders, then shall be a Real Estate Agent appointed by the President of the Real Estate Institute of Victoria or his/her nominee.
For the purposes of Order 2 above, the Solicitor to act in respect of the sale shall be as agreed by the parties and failing agreement within seven (7)…
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- Case
- [2016] FCCA 1616
- Decision Date
CaseChat Overview and Summary
The court was required to determine the ownership interests of the parties in Property H and to make orders for its sale and the distribution of the proceeds. Further issues included the division of other assets and liabilities, such as funds from the sale of a former matrimonial home, motor vehicles, shares, a student loan, and personal debts. A significant aspect of the determination involved the division of superannuation interests held by the husband, requiring specific orders to be binding on the trustee of the superannuation fund.
Judge McNab declared that Property H was owned equally by the husband, the wife, and the second respondent, each holding a one-third interest. The court ordered the sale of Property H within 60 days, specifying terms for the appointment of a real estate agent and solicitor, a reserve price, and a timeline for sale by public auction or private treaty, with provisions for dispute resolution by the President of the Victorian Division of the Australian Property Institute or the President of the Law Society of Victoria. The proceeds of sale were to be applied first to sale costs, then to discharge encumbrances, followed by a provision for capital gains tax liability, reimbursement for sale preparation costs, a specific payment to the second respondent, and finally, the balance to be divided to achieve a 70%/30% split of net non-superannuation assets between the wife and husband respectively. The orders also detailed the retention of specific assets by each party, the husband's sole liability for a student loan, and a directive for the husband to transfer a motor vehicle to the wife. Crucially, the court made detailed orders regarding the division of the husband's superannuation, including a base amount to be allocated to the wife and provisions for notice and protection of her entitlement during the process. The court also ordered the first respondent to pay the second respondent's costs fixed at $2,048, with liberty to apply regarding further costs.
Orders
Orders of the court
IT IS DECLARED THAT:
1.
Pursuant to section 78 of the Family Law Act (Cth) that the real property situate at and known as Property H in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the (omitted) property”) is owned by the parties as follows:
(a) The husband owns a one third interest
(b) The wife owns a one third interest
(c) The second named respondent owns a one third interest.
IT IS ORDERED THAT:
2.
Within 60 days of the date of these Orders each party shall do all things and execute all documents necessary to cause the (omitted) property to be sold by private treaty at the earliest possible date and on the following terms and conditions:
(a) The real estate agent appointed to act in respect of the sale shall be Mr P of (omitted) Real Estate of (omitted), unless otherwise agreed;
(b) The conveyancing solicitor in respect of the sale shall be the wife’s lawyers, Kooblal Lawyers, unless otherwise agreed;
(c) The reserve price for the sale of the (omitted) property shall be $380,000 unless otherwise agreed in consultation with the agent;
(d) The property shall be listed for sale by public auction to take place on or before 12 November 2016 unless otherwise agreed; and
(e) In the event that the property is not sold by public auction, then it shall be listed for sale by private treaty for a further period to be agreed and at an agreed listing price, and failing such agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee.
3.
For the purposes of Order 2 above, the Real Estate Agent to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of the date of these Orders, then shall be a Real Estate Agent appointed by the President of the Real Estate Institute of Victoria or his/her nominee.
4.
For the purposes of Order 2 above, the Solicitor to act in respect of the sale shall be as agreed by the parties and failing agreement within seven (7) days of the date of these Orders, then a Solicitor shall be appointed by the President of the Law Society of Victoria or his/her nominee.
5.
That, for the purposes of Order 2 above, the listing price and sale price for the property shall be as agreed between the parties and failing agreement within seven (7) days of the date of these Orders, then the sale price shall be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and the listing price shall be in accordance with the recommendation by the real estate agent acting on the sale.
6.
In the event there is not an exchanged sale still on foot of the property by private treaty pursuant to the above order within 60 days of these orders, then the parties shall forthwith do all things necessary to cause the property to be sold by public auction at the earliest possible date at a price to be agreed upon between the parties or nominated by the President of the Victorian Division of the Australian Property Institute or his/her nominee at a reserved price agreed upon between the parties and failing agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and on completion of sale the proceeds of sale shall be disbursed as provided for in order 2 above save that the parties shall, prior to distribution of proceeds to them personally equally pay and bear as and when they fall due all costs associated with the auction process.
7.
In the event the property is not sold by public auction in accordance with order 6 within 90 days from the date of these orders, then the parties shall do all things forthwith to resubmit the property for sale by private treaty at the earliest possible date at a price to be agreed between the parties and failing such agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and that the proceeds of sale be disbursed in accordance with order 2 above.
8.
The proceeds of sale of the Property H property be divided as follows:
(a) To pay the costs, commissions and expenses of the sale;
(b) To discharge any mortgage or encumbrance registered against the title to the property;
(c) Subject to paragraph 9 hereof, the amount of $15000 to be held on trust by the husband’s solicitor and applied to pay any CGT liability arising from the sale of the Property H property;
(d) To reimburse the parties for any agreed costs of preparing the Property H property for sale upon the production of receipts verifying same;
(e) To pay to the second respondent 1/3 of the balance thereafter remaining minus the sum of $9,500;
(f) The balance thereafter remaining to be divided between the parties so as to achieve a 70%/30% split of the net non-superannuation assets taking into account paragraphs 10 to 13 hereof.
9.
The parties forthwith jointly engage an accountant to calculate the CGT payable from the sale of the Property H property and the funds held pursuant to paragraph 3.3 hereof be applied to the payment of any CGT liability arising in any party’s name and any balance thereafter remaining be divided as to 1/3 to the second respondent and the balance thereafter to be divided as to 70% to the wife and 30% to the husband.
10.
The wife retain to the exclusion of the husband:
(a) $104,436.50 paid to the wife at settlement of sale of the former matrimonial home;
(b) The sum of $38,063 paid to the wife on 12 January 2016;
(c) The Subaru motor vehicle deemed to have a value of $8,000; and
(d) The (omitted) shares deemed to have a value of $7,476.
11.
The husband retain to the exclusion of the wife the sum of $49,310 being the moneys retained by him from the proceeds of sale of the former matrimonial home.
12.
The husband be solely liable for and indemnify the wife with respect to his (country omitted) Student loan deemed to have a balance of $39,000.
13.
The husband forthwith transfer the Subaru motor vehicle to the wife at her expense.
14.
Other than as is specifically provided for in these orders, each party is solely responsible for any personal debts they may have incurred or will incur, including personal loans and credit card debts and each party will assume all liability for and indemnify the other in relation thereto.
15.
Paragraphs 16 to 20 (inclusive) of these orders are binding on the Trustee of the (omitted) Superannuation Plan (“the Fund”).
16.
The base amount of $38,414 be allocated to the wife out of the interest in the husband’s fund member number (omitted).
17.
Pursuant to paragraphs 90MT(1)(a) of the Family Law Act 1975 where a splittable payment becomes payable in respect of the interest of the husband in the Fund, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount allocated in order 16 and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
18.
Order 16 has effect from the operative time.
19.
The operative time for the purposes of paragraph 16 of these orders is four business days after the date of service of these orders upon the Trustee of the Fund.
20.
Until such time as the superannuation split to the wife pursuant to these orders can be rolled over into a separate account to the wife:
(a) the husband provide to the wife no less than twenty-eight (28) days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the Fund;
(b) the husband direct and authorise the Trustee of the Fund to communicate with the wife and/or any person authorised by her in writing;
(i) to answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlements in the Fund; and
(ii) to provide the wife and/or her authorised representative with a copy of any notice of any application or request by the husband which seeks release of entitlements in the Fund in so far as that release may affect the wife’s entitlements in the Fund pursuant to these orders.
(c) the husband by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the wife or her legal representative in accordance with section 90MZC of the Family Law Act 1975 from receiving the benefits in the Fund to which she is entitled pursuant to these orders.
21.
In the event that the superannuation split to the wife pursuant to these orders can be rolled over into a separate account to the wife, each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement the rollover.
22.
Unless specified in these orders and save for the purpose of enforcing the payment of monies due under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all real property and personal property (including choses-in-action) in the possession of such party as at the date of these orders;
(b) Money standing to the credit of the parties in any joint bank account is to be divided equally between the parties and the account closed;
(c) Each party forgoes any claim they may have and any interest in any superannuation benefits or work related benefits or entitlements belonging to or earned by the other;
(d) Insurance policies remain the sole property of the beneficiary named therein;
(e) Each party be solely liable for and indemnify the other against any liability encumbering any item or property to which that party is entitled pursuant to these orders; and
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
23.
The first respondent pay the second respondent’s costs fixed in the sum of $2,048.
24.
The applicant and the first respondent have liberty to apply to make submissions in relation to costs with such submissions to be in writing and filed with the Court within 14 days of the date of these orders.
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