FAMILY COURT OF AUSTRALIA
| EGAN & EGAN | [2016] FamCA 1109 |
| FAMILY LAW – PROPERTY – Initial contributions – dispute between the parties as to the husband’s initial contributions – where the husband owned a property at the commencement of cohabitation which forms part of the current pool – where the property represents a significant part of the pool – 70/30 assessment made upon contributions – responsibility of the wife to maintain the adult children of the relationship – where the wife has no legal duty to maintain the children – s 75(2)(e) considered – where the husband disputes the responsibility of the wife to support the adult children – where the wife has produced no current evidence as to any dependency of the children upon her – where the husband has provided financial support to the children – where the wife seeks an adjustment in her favour based upon the reduced life expectancy of the husband – where the husband has been diagnosed with prostate cancer currently in remission – Lawrie considered – where the husband’s life expectancy as given by his medical practitioners is less than that expected for a man of the husband’s age – adjustment made in the wife’s favour – final property orders made as to a 60/40 split in the husband’s favour |
| Family Law Act 1975 (Cth) Income Tax Assessment Act 1997 (Cth) Superannuation Industry (Supervision) Regulations 1994 (Cth) |
| Bateman & Bowe [2013] FamCA 253 Clauson & Clauson (1995) FLC 92-595 Dickons & Dickons [2012] FamCAFC 154 Fontana & Fontana [2016] FamCAFC 11; (2015) FLC 93-688 Lawrie & Lawrie (1981) FLC 91-102 Mallett & Mallett (1984) 156 CLR 605 Marker & Marker [1998] FamCA 42 Norman & Norman [2010] FamCAFC 66 Omacini & Omacini [2005] FamCA 195; (2005) FLC 93-218 S & P (unreported, Family Court of Australia, Fogarty, Lindenmayer and Finn JJ, 29 April 1997) Stanford & Stanford (2012) 247 CLR 108 Vass & Vass [2015] FamCAFC 51 |
| APPLICANT: | Ms Egan |
| RESPONDENT: | Mr Egan |
| FILE NUMBER: | MLC | 10206 | of | 2013 |
| DATE DELIVERED: | 21 December 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 22, 23 & 24 August and 16 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Thompson |
| SOLICITOR FOR THE APPLICANT: | Hayes & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Wilson |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Partners |
Orders
IT IS ORDERED THAT
The husband and the wife do all acts and things and sign all necessary documents to forthwith distribute to the wife the balance of the funds together with any interest thereon held in trust on behalf of the husband and the wife by the husband’s solicitors, Kennedy Partners.
Upon settlement of the sale of the property situate at and known as B Street, Suburb C, City D, United Kingdom the husband pay to the wife the sum of $155,761 less an amount equivalent to the difference between $466,133 and the amount paid to the wife pursuant to paragraph 1 of these orders.
That paragraphs…
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- Egan and Egan [2016] FamCA 1109
- Case
- [2016] FamCA 1109
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific amounts to be paid to the wife from the solicitors' trust account and upon the sale of the UK property. Crucially, the court also had to determine how the husband's superannuation interests would be divided, specifically addressing the allocation of a base amount to the wife and the mechanism for future payments from the superannuation fund pursuant to the *Family Law Act 1975* (Cth) and its associated regulations.
Macmillan J ordered the immediate distribution of funds held in trust by the husband's solicitors to the wife. The court further ordered that upon the settlement of the sale of the UK property, the husband was to pay a specified sum to the wife, adjusted by the amount she received from the trust funds. The court also made orders binding on the trustee of the husband's superannuation fund, allocating a base amount of $300,000 to the wife and stipulating that she would be entitled to a calculated portion of future splittable payments from the fund, with a corresponding reduction in the husband's entitlement. These superannuation orders were to take effect four business days after service of the orders on the trustee. The court also made general orders regarding the parties' sole entitlement to other property, insurance policies, liability for encumbrances, and the severance of any joint tenancies. All extant applications, except for costs, were dismissed.
Orders
Orders of the court
IT IS ORDERED THAT
1.
The husband and the wife do all acts and things and sign all necessary documents to forthwith distribute to the wife the balance of the funds together with any interest thereon held in trust on behalf of the husband and the wife by the husband’s solicitors, Kennedy Partners.
2.
Upon settlement of the sale of the property situate at and known as B Street, Suburb C, City D, United Kingdom the husband pay to the wife the sum of $155,761 less an amount equivalent to the difference between $466,133 and the amount paid to the wife pursuant to paragraph 1 of these orders.
3.
That paragraphs 3 to 7 (inclusive) of these Orders are binding on the Trustee of the BT SuperWrap QROPS (“the Fund”).
4.
The base amount of $300,000 be allocated to the wife out of the husband’s interest in the Fund.
5.
Pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the husband’s interest in the Fund, the wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth) 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.
6.
Paragraphs 4 and 5 have effect from the operative time.
7.
The operative time for the purposes of paragraphs 4 and 5 of these Orders is four business days after the date of service of these Orders upon the Trustee of the Fund.
8.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b) insurance policies remain the sole property of the owner named thereon;
(c) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
9.
On or before 4.00 pm on 3 February 2017 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the hearing of this matter.
10.
On or before 4.00 pm on 17 February 2017 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to the hearing of this matter.
11.
The question of costs be determined based upon the parties’ written submissions subject to leave being sought to make oral submissions.
12.
All extant applications, save and except for any applications for costs, be otherwise dismissed and the matter be removed from the list of pending cases awaiting hearing.
IT IS DIRECTED THAT
13.
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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