FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Elsner & Elsner [2023] FedCFamC2F 1419
File number(s): MLC 5215 of 2023 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 3 November 2023 Catchwords: FAMILY LAW – PROPERTY – husband seeks orders in accordance with in-principle agreement previously reached between parties – consideration of exceptions to exclusion of evidence of settlement negotiations in sub-section 131(2) Evidence Act 1995 (Cth) – evidence of in-principle agreement admitted where parties each gave evidence of steps taken pursuant to that agreement, including the sale of their home – assessment of contributions – weight to be given to initial contributions including husband’s ownership of former family home at commencement of cohabitation in the context of all other contributions over a relationship of 28 years, with two (now adult) children Legislation: Evidence Act 1995 (Cth) ss. 131, 140
Family Law Act 1975 (Cth) ss. 75, 79
Cases cited: Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124
Bachman & Self [2023] FedCFamC1A 50
Barnell & Barnell (2020) FLC 93-961; (2020) FLC 93–961
Bevan v Bevan (2013) 49 Fam LR 387; [2013] FamCAFC 116
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Fields & Smith (2015) FLC 93–638; [2015] FamCAFC 5
Horrigan & Horrigan [2020] FamCAFC 25
Hurst & Hurst (2018) FLC 93-851; [2018] FamCAFC 146
Jabour & Jabour (2019) FLC 93–898; [2019] FamCAFC 78
Lovine & Connor and Anor (2012) FLC 93–515; [2012] FamCAFC 168
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Perrin & Perrin (No 2) [2018] FamCAFC 122
Petrellis & Petrellis [2023] FedCFamC1A 104
Petruski & Balewa (2013) 49 FamLR 116; [2013] FamCAFC 15
Phe & Leng (2019) FLC 93–887; [2019] FamCAFC 17
Pierce v Pierce (1999) FLC 92–844; [1998] FamCA 74
Spalla & Spalla (2023) FLC 94–145; [2023] FedCFamC1A 87
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Wallis & Manning (2017) FLC 93–759; [2017] FamCAFC 14
Waters & Jurek (1995) FLC 92-635; [1995] FamCA 101
Whiton & Dagne (2019) FLC 93-923; [2019] FamCAFC 192
Woodcock v Woodcock (1997) FLC 92–739; [1997] FamCA 5
DW & GT (2005) FLC 93–217; [2005] FamCA 161
Division: Division 2 Family Law Number of paragraphs: 183 Date of hearing: 19 & 20 October 2023 Place: Melbourne Counsel for the Applicant: Ms McCreadie Solicitors for the Applicant: Accord Family Law Counsel for the Respondent: Mr Devries Solicitors for the Respondent: Gigliotti Lawyers ORDERS
MLC 5215 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ELSNER
Applicant
AND: MR ELSNER
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
3 NOVEMBER 2023
THE COURT ORDERS THAT:
Suburb C proceeds
1.Within 7 days of the date of these orders (“the date”) the parties do all acts and things and sign all documents as may be required to authorise N Lawyers to forthwith release the residual proceeds from the sale of B Street, Suburb C, Victoria held in trust on behalf of the parties (including accrued…
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- [2023] FedCFamC2F 1419
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CaseChat Overview and Summary
The court found that evidence of the in-principle agreement was admissible as both parties had testified about the steps taken pursuant to that agreement, including the sale of their home. In assessing the contributions, the court considered the husband's ownership of the former family home at the start of their cohabitation, but balanced this against all other contributions made over the 28 years of their relationship, which included raising two children. The court concluded that the initial contributions should not overshadow the overall contributions made by both parties during the course of the relationship.
Following this assessment, the court ordered the distribution of the sale proceeds of the former matrimonial home, the transfer of shares in certain companies to the wife, and the retention of specific assets by each party. The court also made orders concerning the allocation of superannuation benefits, including a base amount allocated to the wife from the husband's superannuation fund. The orders were intended to finally determine the financial relationships between the parties, avoiding further proceedings between them. The court dismissed all extant applications and noted that these orders would bind the superannuation fund trustee.
The final orders included detailed provisions for the division of assets and liabilities, with specific instructions for the release of funds from the sale of the former matrimonial home, the transfer of shares, and the allocation of superannuation benefits. The court also included procedural orders to ensure the implementation of these financial orders and noted that these orders were intended to finally determine the financial relationships between the parties.
Orders
Orders of the court
MLC 5215 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS ELSNER
Applicant
AND:
MR ELSNER
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
3 NOVEMBER 2023
THE COURT ORDERS THAT:
Suburb C proceeds
1. Within 7 days of the date of these orders (“the date”) the parties do all acts and things and sign all documents as may be required to authorise N Lawyers to forthwith release the residual proceeds from the sale of B Street, Suburb C, Victoria held in trust on behalf of the parties (including accrued interest) as follows:
(a) $760,836 to the wife;
(b) $748,495 to the husband; and
(c) of any balance then remaining IT BEING NOTED interest is continuing to accrue on the balance held in trust:
(i) 50% to the wife; and
(ii) 50% to the husband.
Share transfers
2. Within 30 days of the date of these orders, the husband do all such acts and things and sign all such documents as may be required to transfer to the wife:
(a) D Company shares; and
(b) E Company shares.
Retention of assets
3. The wife retain to the exclusion of the husband:
(a) The bank accounts in her name;
(b) Her F Company and G Company shareholding; and
(c) Her Motor Vehicle 1.
4. The husband retain to the exclusion of the wife:
(a) The bank accounts in his sole name;
(b) His F Company and G Company shareholding;
(c) His E Company and D Company shareholding (save for the shares transferred to the wife pursuant to order 2);
(d) The L Company policies in his name; and
(e) His Motor Vehicle 2.
Liabilities
5. The wife be solely liable for and indemnify the husband, against all payments and liability with respect to all debts and liabilities in her sole name and/or attaching to any item of property she is to receive pursuant to these orders (past, present or future).
6. The husband be solely liable for and indemnify the wife, against all payments and liability with respect to all debts and liabilities in his name and/or attaching to any item of property he is to receive pursuant to these orders (past, present or future).
Superannuation
7. These orders are binding on M Company, trustee of the Super Fund 1 (“the Fund”) (“the Trustee”) IT BEING NOTED the husband holds a superannuation entitlement in the Fund (account number …72).
8. A base amount of $46,399 is allocated, as required by section 90XT(4) of the Family Law Act 1975 (“the Act”), to the wife out of the husband’s interest in the Fund.
9. In accordance with section 90XT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the interest of 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 (Cth) (“the Superannuation Regulations”) using a base amount of $46,399 and there be a corresponding reduction to the entitlement of the husband would have had but for these orders.
10. These orders have effect from the operative time.
11. The operative time for this order is four (4) business days from the date a sealed copy of these orders is served on the Trustee by the wife or her advisors.
12. The Trustee and the parties in accordance with the obligations set out under the Act, the Superannuation Regulations, the Superannuation Industry (Supervision) Act 1994 (Cth) and the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the SIS Regulations”), do all such acts and things and sign all such documents as may be necessary to calculate the entitlement and make the payment in accordance with these orders.
13. The wife do all things necessary, including but not limited to, exercising her request pursuant to regulation 7A.06 of the SIS Regulations for the payment of the transferrable benefits out of the husband’s interest in the Fund to the wife in accordance with regulation 7A.12 of the SIS Regulations.
14. Until the happening of any of:
(a) The establishment of a separate account in the name of the wife in the Fund; or
(b) The transfer or ‘rolling over’ into another superannuation fund of the superannuation account of the payment split created by order 9; or
(c) The wife satisfies a condition of release and is paid the payment split which was created by order 9; or
(d) The wife executing a waiver of rights within the meaning of section 90ZXA of the Act in relation to the payment split created by order 9 hereof;
the husband be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or things which would render any part of his interest in the Fund a “not splittable payment” within the meaning of regulations 12 or 13 of the Superannuation Regulations.
15. Having been accorded procedural fairness in relation to the making of these orders, these orders bind the Trustee.
16. There be liberty to apply to each party and the Trustee in relation to the implementation of the orders affecting the superannuation interest.
Other
17. 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 property (including choses-in-action) in the possession of such party as at the date of the making 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 is to thereafter to be closed;
(c) Each party foregoes any claims they may have to any superannuation benefits belonging to or earned by the other, save for the superannuation splitting orders contained herein;
(d) Insurance policies remain the sole property of the owner named therein;
(e) Each party be solely liable for any credit card in their respective names as at the date of these orders; and
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Procedural orders
18. All extant applications be dismissed.
AND THE COURT NOTES:
A. Pursuant to section 81 of the Act, these orders are intended to finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
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
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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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