FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Donata & Hannes (No 2) [2024] FedCFamC2F 277
File number(s): PAC 3011 of 2022 Judgment of: JUDGE OBRADOVIC Date of judgment: 11 March 2024 Catchwords: FAMILY LAW – PROPERTY – De facto relationship – Relationship of 14 years – Findings as to credit – Findings as to domestic violence – Add backs – Cross-examination not permitted due to operation of 102NA – Superannuation splitting order – 50/50 split after adjustment Legislation: Family Law Act 1975 (Cth) Cases cited: Bain v Bain (2017) 319 FLR 119
Bevan & Bevan [2013] FamCAFC 116
Chapman & Chapman [2014] FamCAFC 91
Oamra & Williams [2021] FamCAFC 117
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Trevi & Trevi [2018] FamCAFC 173
Division: Division 2 Family Law Number of paragraphs: 60 Date of hearing: 21 February 2024 Place: Parramatta Counsel for the Applicant: Mr Livingstone Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd Appearing for the Respondent: In person ORDERS
PAC 3011 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DONATA
Applicant
AND: MR HANNES
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
11 MARCH 2024
THE COURT ORDERS THAT:
1.The parties shall forthwith do all acts and things and sign all documents necessary to disburse the balance of proceeds of the sale of the property known as B Street, Suburb C in the State of New South Wales presently held in trust by Khalil Lawyers on behalf of the parties as follows:
(a)The sum of $201,125.50 to the applicant at her direction;
(b)The sum of $125,525.50 to the respondent at his direction; and
(c)Any balance to be divided 50/50 between the parties.
2.Within 7 days of these orders, the respondent do all acts and things and sign all documents necessary so as to transfer to the applicant all of his right title and interest in the on-site caravan situated at D Street, Town E.
3.Unless otherwise specified in these orders each party shall be entitled to the exclusion of the other to all other property and financial resources of any nature and kind in the possession of such party as at the date of these orders, but without limiting the generality of the foregoing:
(a)In the case of the applicant:
(i)Her F Bank account #...83;
(b)In the case of the respondent:
(i)His Commonwealth Bank of Australia account #...78;
(ii)His Motor Vehicle 1;
(iii)His Motor Vehicle 2;
(iv)His Motor Vehicle 3;
(v)His Motor Vehicle 4;
(vi)His Motor Vehicle 5;
(vii)His caravan; and
(viii)The parties’ chattels currently in storage with G Company.
4.Unless otherwise specified in these orders each party shall be solely liable for and indemnify the other against any personal liabilities and any liability encumbering any item of property to which that party is entitled pursuant to these orders, but without limiting the generality of the foregoing:
(a)In the case of the…
Continue reading Donata & Hannes (No 2)
Sign in free to access the full text
- AGLC
- Donata & Hannes (No 2) [2024] FedCFamC2F 277
- Case
- [2024] FedCFamC2F 277
- Decision Date
CaseChat Overview and Summary
The court carefully considered the evidence presented and the applicable legal principles. It found that a 50/50 split of the proceeds from the sale of the jointly owned property was appropriate, given the length of the relationship and the contributions made by both parties. The court also ordered the transfer of the on-site caravan to Donata and directed that the parties retain their respective personal assets and liabilities. Regarding the superannuation interests, the court ordered a 50/50 split of Hannes's superannuation fund, with the applicant to receive 50% of the respondent's interest. The court further detailed the steps required for the trustees to implement this order, including the calculation of the applicant's entitlement and the necessary documentation for the transfer of the non-member spouse's interest.
The court's reasoning was based on a comprehensive assessment of the evidence and the legal framework provided by the Family Law Act and related regulations. The outcome was a detailed property settlement order that allocated assets and liabilities between the parties in a manner that the court deemed just and equitable. The orders were specific about the division of proceeds from the sale of the property, the transfer of specific assets, the retention of personal assets and liabilities, and the division of superannuation interests.
The final orders included specific directions for the disbursement of the property sale proceeds, the transfer of the on-site caravan, the retention of personal assets and liabilities by each party, and the division of superannuation interests. The court also authorised a Registrar to enforce the orders in the event of non-compliance by either party. The orders were designed to ensure a fair and equitable outcome for both parties, taking into account the unique circumstances of their relationship and the legal requirements of the Family Law Act.
Orders
Orders of the court
PAC 3011 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS DONATA
Applicant
AND:
MR HANNES
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
11 MARCH 2024
THE COURT ORDERS THAT:
1. The parties shall forthwith do all acts and things and sign all documents necessary to disburse the balance of proceeds of the sale of the property known as B Street, Suburb C in the State of New South Wales presently held in trust by Khalil Lawyers on behalf of the parties as follows:
(a) The sum of $201,125.50 to the applicant at her direction;
(b) The sum of $125,525.50 to the respondent at his direction; and
(c) Any balance to be divided 50/50 between the parties.
2. Within 7 days of these orders, the respondent do all acts and things and sign all documents necessary so as to transfer to the applicant all of his right title and interest in the on-site caravan situated at D Street, Town E.
3. Unless otherwise specified in these orders each party shall be entitled to the exclusion of the other to all other property and financial resources of any nature and kind in the possession of such party as at the date of these orders, but without limiting the generality of the foregoing:
(a) In the case of the applicant:
(i) Her F Bank account #...83;
(b) In the case of the respondent:
(i) His Commonwealth Bank of Australia account #...78;
(ii) His Motor Vehicle 1;
(iii) His Motor Vehicle 2;
(iv) His Motor Vehicle 3;
(v) His Motor Vehicle 4;
(vi) His Motor Vehicle 5;
(vii) His caravan; and
(viii) The parties’ chattels currently in storage with G Company.
4. Unless otherwise specified in these orders each party shall be solely liable for and indemnify the other against any personal liabilities and any liability encumbering any item of property to which that party is entitled pursuant to these orders, but without limiting the generality of the foregoing:
(a) In the case of the applicant:
(i) Any debt owed by the parties to Ms H as at the date of these orders;
(b) In the case of the respondent:
(i) His Commonwealth Bank of Australia MasterCard debt;
(ii) His Commonwealth Bank of Australia overdraft account debt bearing account #...71;
(iii) His J Company debt;
(iv) His K Company debt;
(v) His L Company debt;
(vi) His toll debt;
(vii) His M Company debt;
(viii) Any personal debt owed to Mr N;
(ix) Any personal debt owed to Ms O; and
(x) Any personal debt owed to Mr P.
5. Paragraph 5-11 of these orders are binding on the trustees of Super Fund 1 (“the fund”).
6. That, in accordance with section 90XT(1)(b) of the Family Law Act 1975 (Cth) (“the Act”):
(a) The applicant is entitled to be paid the specific percentage out of the respondent’s interest in the fund;
(b) The respondent’s entitlement in the fund is correspondingly reduced by force of this order; and
(c) The percentage specified for the purposes of this order is 50%.
7. That the trustee of the fund do all such acts and things and sign all such documents as may be necessary to:
(a) Calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement awarded to the applicant in the immediately preceding clause of these orders; and
(b) Pay the entitlement whenever the trustee makes a splitable payment from the respondent’s interest in the fund.
8. That this order has effect from the operative time and the operative time is the beginning of the day upon which this order is made.
9. That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the regulations”) the respondent shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising the applicant’s request in accordance with the regulations for the transfer or rollover of the non-member spouse’s interest in the respondent’s name in the fund.
10. That, the Court notes:
(a) The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b) Any payments from respondent’s superannuation interest in the fund made after the trustee has created a new interest in the applicant’s name in the fund are not splitable payments in accordance with the requirement of the Family Law (Superannuation) Regulations 2001.
11. There be liberty to each party and the trustee of the fund to apply regarding the implementation of these orders affecting the interests of the respondent and the applicant in the fund.
12. That the applicant and the respondent shall each do all such things as are necessary and sign all such documents as are necessary to give effect to these Orders.
13. Pursuant to section 106A of the Act a Registrar of the Federal Circuit and Family Court of Australia (Division 2) is authorised to execute any document or do any such thing as is required to give effect to these orders in the event of a default of a party to execute such document or do such things as is necessary under these orders.
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).
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.