FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ekrem & Ekrem [2024] FedCFamC2F 310
File number(s): LNC 203 of 2022 Judgment of: JUDGE TURNBULL Date of judgment: 14 March 2024 Catchwords: FAMILY LAW – PROPERTY – where there is significant agreement as to the facts and the assets to be divided – whether there should be a one or two pool approach – impact of the Husband’s initial contributions – impact of the Wife having primary care of a child with special needs and an inferior income. Legislation: Family Law Act 1975 (Cth) Cases cited: Beck & Beck (No 2) (1983) FLC 91-318
Briginshaw v Briginshaw (1938) 60 CLR 336,
Cabbell & Cabbell [2009] FamCAFC 205
Clauson & Clauson (1995) FLC 92-595
Dawes & Dawes [1989] FamCA 71
Dovgan & Dovgan [2021] FamCA 306
Gadhavi & Gadhavi [2023] FedCFamC1A 117
Hickey & Hickey [2003] FamCA 395
In the Marriage of Napthali (1988) 13 Fam LR 146
Jabour & Jabour [2019] FamCAFC 78
Jacobson & Jacobson (1989) FLC 92-003
Lotta & Lotta [2017] FamCA 50
Mallet & Mallet (1984) 156 CLR 605
Mallet v. Mallet [1984] HCA 21; (1984) 9 Fam LR 449; (1984) FLC 91—507
Norman & Norman [2010] FamCAFC 66
Phillips & Phillips [2002] FamCA 350
Pierce v Pierce (1999) FLC 92
Sigley & Cullen (No 3) [2015] FamCA 825
Stanford & Stanford (2012) 247 CLR 108, 122
Teal & Teal [2010] FamCAFC 120
Division: Division 2 Family Law Number of paragraphs: 67 Date of last submission/s: 13 February 2024 Date of hearing: 12 February and 14 February 2024 Place: Launceston – delivered in Hobart Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr T McKenna Solicitor for the Respondent: Simmons Wolfhagen ORDERS
LNC 203 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EKREM
Applicant
AND: MS EKREM
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
Real Property and Trust Entities
1.The Applicant Husband must transfer to the Respondent Wife and/or relinquish all of the Husband’s right, title and interest in the following:
(a)B Street, Suburb C in the State of Tasmania and more particularly described in Certificate of Title Volume … Folio …;
(b)1 D Street, Suburb E in the State of Tasmania and more particularly described in Certificate of Title Volume … Folio …;
(c)2 D Street, Suburb E in the State of Tasmania; and
(d)The real property situated at F Street, Town G, Country H currently registered in the Wife’s name.
2.Subject to the Husband’s compliance with paragraph 1 of this Order, the Wife must transfer and/or relinquish to the Husband all the Wife’s right, title and interest in the following:
(a)The land at J Street, Suburb C in the State of Tasmania currently registered in the parties’ joint names;
(b)K Street, Town L in the State of Tasmania and more particularly described in Certificate of Title Volume … Folio …;
(c)The Ekrem…
Continue reading Ekrem & Ekrem
Sign in free to access the full text
- AGLC
- Ekrem & Ekrem [2024] FedCFamC2F 310
- Case
- [2024] FedCFamC2F 310
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the method of division of the parties' property. The court had to consider whether a one-pool or two-pool approach was more appropriate for the division of the assets. Additionally, the court needed to weigh the Husband's initial contributions to the family assets against the Wife's role in caring for a child with special needs and her lower income. The court also had to determine the appropriate division of the assets, including real property, trust entities, and personal property, as well as the allocation of debts and liabilities.
The court determined that a two-pool approach was appropriate given the significant agreement between the parties as to the facts and the assets to be divided. The court considered the Husband's initial contributions to the family assets and the Wife's role in caring for a child with special needs, which resulted in her having an inferior income. The court held that these factors warranted consideration in the division of the assets. The court ordered the transfer of specific real property from the Husband to the Wife and vice versa, the payment of a cash adjustment from the Husband to the Wife, and the division of other assets and liabilities between the parties. The court also directed the parties to close their joint bank accounts and to split the Husband's superannuation fund in favour of the Wife.
The court's orders reflect a detailed and balanced approach to the division of the parties' property, taking into account the specific circumstances of the case and the relevant legal principles. The final orders provide for the transfer of specific real property, the payment of a cash adjustment, the division of other assets and liabilities, and the closure of joint bank accounts and superannuation fund splitting.
Orders
Orders of the court
LNC 203 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR EKREM
Applicant
AND:
MS EKREM
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
Real Property and Trust Entities
1. The Applicant Husband must transfer to the Respondent Wife and/or relinquish all of the Husband’s right, title and interest in the following:
(a) B Street, Suburb C in the State of Tasmania and more particularly described in Certificate of Title Volume … Folio …;
(b) 1 D Street, Suburb E in the State of Tasmania and more particularly described in Certificate of Title Volume … Folio …;
(c) 2 D Street, Suburb E in the State of Tasmania; and
(d) The real property situated at F Street, Town G, Country H currently registered in the Wife’s name.
2. Subject to the Husband’s compliance with paragraph 1 of this Order, the Wife must transfer and/or relinquish to the Husband all the Wife’s right, title and interest in the following:
(a) The land at J Street, Suburb C in the State of Tasmania currently registered in the parties’ joint names;
(b) K Street, Town L in the State of Tasmania and more particularly described in Certificate of Title Volume … Folio …;
(c) The Ekrem Family Trust T/A as M Business excluding the real property at 1 D Street in the State of Tasmania (because of paragraph 1 of this Order), and
(d) The Ekrem Property Trust that includes the real property at N Street, City E in the State of Tasmania.
3. The Husband pay to the Wife the sum of $695,966.22 (‘the Cash Adjustment’) in the following manner:
(a) The Husband must pay to the Wife the Cash Adjustment, by way of three payments, as follows:
(i) $45,675.00 is to be paid by the Husband to the Ekrem Family Trust to discharge and reduce to $NIL the Wife’s beneficiary loan account (an asset of the Ekrem Family Trust) (First Payment).
(ii) The next part of the balance of the Cash Adjustment, after the First Payment, is to be paid to the Wife from the Ekrem Property Trust by way of repayment to the Wife of beneficiary loan account (a liability of the Ekrem Property Trust) owed to her, noting $189,149.45 is owing to her at the date of this Order (Second Payment).
(iii) The remaining balance of the Cash Adjustment, after the First Payment and Second Payment, will be paid by the Husband personally to the Wife (Third payment).
(b) The payment referred to in paragraph 3(a)(i) is to be paid by the Husband contemporaneously with the Second and Third Payments and within thirty (30) days of the date of this Order.
(c) The Second Payment and the Third Payment are to be paid to the Wife’s family law solicitors, Simmons Wolfhagen.
4. For the purposes of paragraph 1 of this Order and for the purposes of the Wife ceasing her roles with the Trusts and associated business, the parties will jointly instruct Mr O, Chartered Accountant, to assist them with doing all things necessary including, but not limited to, signing all documents, and providing all consents necessary to:
(a) Give effect to the paragraph 1 of this Order insofar as that paragraph relates to trust property and/or trust entities;
(b) Cause the Wife to be removed as a Trustee of the Ekrem Family Trust and Ekrem Property Trust and to otherwise resign from any other controlling role;
(c) Cause the Wife to relinquish her co-registration of business name of M Business from ASIC and the relevant industry authority issued by City E Council;
(d) Enable the Wife to relinquish to the Husband and/or assign to him as his absolutely, any beneficiary loan that would, but for this Order, be payable by either the Ekrem Family Trust and/or the Ekrem Property Trust to the Wife; and
(e) Ensure the Husband as sole trustee and beneficiary of the Ekrem Family Trust and/or the Ekrem Property Trust forgives all loans Ms Ekrem owes either trust, subject to advice from Mr O, Chartered Accountant, about achieving this in a revenue effective manner.
Joint Bank Accounts
5. Within 60 days of the date of this Order the parties will close all banking and other financial institution accounts that are in the parties’ joint names including their shares account.
Superannuation Split
6. The Wife is to receive $29,903 from the Husband’s Super Fund 1.
7. For the purposes of paragraph 6 of this Order, the base amount allocated to the Wife out of the superannuation interest held by the Husband in Super Fund 1 (Member number: …) (the Fund) is $29,903.
8. In accordance with paragraph 90XT(1)(a) of the Family Law Act 1975, whenever the Trustee of the Fund (the Trustee) makes a splittable payment from the interest held by the Husband, the Trustee must pay to the Wife, an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in paragraph 6 of this Order, and there must be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order.
9. This Order has effect from the operative time and the operative time is four (4) business days after the day on which the final sealed, signed Orders are served on the Trustee.
10. In accordance with the obligation set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, the Trustee of the Fund must 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 this Order.
11. Each party and the Trustee has liberty to apply in relation to the implementation of this Order.
Personal Property
12. The Husband must do all acts and things including, but not limited to, signing all documents necessary to relinquish to the Wife all the Husband’s right, title, estate and interest in the following:
(a) All chattels, including but not limited to furniture and contents, personal apparel, goods, and documents in the Wife’s possession;
(b) All monies held in any accounts held in the Wife’s name in any banking or other financial institution;
(c) Motor Vehicle 1 in the Wife’s possession; and
(d) Any entitlements of the Wife arising from the Wife’s membership of any superannuation or pension or life assurance/insurance fund.
13. The Wife must do all acts and things including, but not limited to, signing all documents necessary to relinquish to the Husband all the Wife’s right, title, estate and interest in the following:
(a) All chattels, including but not limited to furniture and contents, personal apparel, goods, and documents in the Husband’s possession;
(b) All monies including Crypto currencies held in any accounts held in the Husband’s name in any banking or other financial institution or crypto currency platform;
(c) Motor Vehicle 2 registration in the Husband’s possession;
(d) The Husband’s shares and investments; and
(e) Subject to this Order, any entitlements of the Husband arising from the Husband’s membership of any superannuation fund.
14. As a separate and additional liability, the Husband must pay, indemnify, and keep the Wife effectively indemnified against any and all:
(a) creditors of the Husband and his related entities being the Ekrem Family Trust and Ekrem Property Trust (the Trust Entities);
(b) borrowings of the Husband and the Trust Entities;
(c) liabilities to the Australian Taxation Office owing by Husband and the Trust Entities and any interests, costs or penalties that may apply;
(d) other debts and/or liabilities of whatever nature in respect of the Husband and the Trust Entities; and
(e) personal guarantees given by the Wife in respect of the Husband’s debts or debts and/or liabilities of the Trust Entities and business known as M Business.
15. As a separate and additional liability, the Wife must pay, indemnify, and keep the Husband effectively indemnified against any and all:
(a) liabilities to the Australian Taxation Office owing by the Wife; and
(b) other debts and/or liability of whatever nature in respect of the Wife.
Other Property and Financial Resources
16. Unless otherwise specified in this Order and except for the purposes of enforcing payment of any money due under these or any subsequent Orders, each party is solely entitled to all property and financial resources (and choses in action) in their possession on the date of this Order to the exclusion of the other. For the purposes of this order:
(a) banking and other accounts are deemed to be in the possession of the person whose name appears on the records of the relevant financial institution;
(b) insurance policies are deemed to be in the possession of the beneficiary or beneficiaries named in the policy;
(c) superannuation entitlements are deemed to be in the possession of the person named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(d) each party is solely liable for and indemnifies the other against any liability encumbering any item of property or financial resource to which that party is entitled under these orders.
Compliance with Order
17. Each Party must do all things necessary including, but not limited to, signing all documents and provide all consents necessary to give effect to this Order in the time periods prescribed in this Order.
Liberty to apply
18. The parties have liberty to apply in relation to the implementation of the terms of this Order.
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.