Fayette and Fayette - [2007] FamCA 834

FAMILY COURT OF AUSTRALIA

FAYETTE & FAYETTE

[2007] FamCA 834

FAMILY LAW - PROPERTY– superannuation – whether splitting order appropriate

Family Law Act 1975 (Cth) s.79, s.79(4)(a)-(g), s.75(2), s.4(1), Part VIIIB
Family Law (Superannuation) Regulations 2001
Child Support (Assessment) Act 1989 (Cth)

Omacini v Omacini (2005) FLC 93-218
Townsend v Townsend (1995) FLC 92-569
Coghlan v Coghlan (2005) FLC 93-220

M v M (2006) FLC 93-281
West v Green (1993) FLC 92-395
Harrison v Harrison (1996) FLC 92-682
Bartlett v Bartlett (1996) FLC 92-721
O v O (2000) Fam CA 1432

HUSBAND:

Mr Fayette

WIFE:

Ms Fayette

FILE NUMBER:

MLF

2006

DATE DELIVERED:

20 August, 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

BROWN J

HEARING DATE:

23 May and 30 July, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND:

Mr Harper

SOLICITOR FOR THE HUSBAND:

Robb & Associates

COUNSEL FOR THE WIFE:

Ms Boyle

SOLICITOR FOR THE WIFE:

Harris Lieberman

Orders

That within 14 days the husband and wife each execute all necessary documents and provide all necessary consents to procure a sale of the real property situate at and known as … Road, T, New South Wales (“the real property”) by way of private treaty, and subject to any agreement between the parties to the contrary, the following provisions shall apply :
(a)the reserve price for the real property shall be as agreed between the parties or, in default of agreement, nominated by a valuer (who is also a licensed real estate agent) appointed by the President of the New South Wales Division of the Australian Property Institute;
(b)the real property shall be offered for sale by a real estate agent agreed to by the parties and, in default of agreement, the real estate agent appointed as a valuer pursuant to the preceding sub-paragraph.
(c)save with the written consent of the other party, a party shall not (either directly or through any agent or nominee) purchase the real property;
(d)the husband shall have the conduct of the sale;
(e)notwithstanding the provisions of sub-paragraph (d) hereof, both parties must agree to any pre-sale maintenance or other work on the real property unless the same is certified as being required by the real estate agent.

That pending the settlement of the sale :
(a)the husband shall have the right to occupy the real property and during that period he pay all rates, taxes and other outgoings as they fall due (not including the rate arrears of $2,242 referred to in the reasons for judgment published this day);
(b)the parties hold their respective interests in the real property on trust pursuant to these orders; and
(c)neither party encumber the real property without the consent in writing of the other party.

That upon completion of the sale the proceeds of the sale shall be applied as follows :
(a)first, to pay all costs, commissions and expenses of the sale;
(b)second, to pay rate arrears of $2,242;
(c)third, subject to paragraph (4) hereof, to pay any council and water rates and maintenance levies then outstanding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fayette and Fayette

Details

AGLC: Fayette and Fayette [2007] FamCA 834
Case: [2007] FamCA 834
Decision Date: 20 August 2007

CaseChat Overview and Summary

In *Fayette and Fayette*, Brown J of the Family Court of Australia made orders concerning the division of property and superannuation interests between a husband and wife. The dispute involved the sale of the former matrimonial home and a utility vehicle, the transfer of a motor vehicle, the division of personal property, and the splitting of superannuation benefits.

The court was required to determine how the parties' assets and liabilities should be divided, including the terms of sale for the real property and a utility vehicle, the allocation of specific motor vehicles and personal items, and the method for splitting the husband's superannuation interest in the PSS scheme. The court also needed to address outstanding rates and mortgage obligations related to the real property and clarify the entitlements of each party to other property and superannuation benefits.

Brown J ordered the sale of the former matrimonial home by private treaty, with specific provisions regarding the reserve price, the appointment of a real estate agent, and restrictions on either party purchasing the property. The husband was granted conduct of the sale and the right to occupy the property pending settlement, with obligations to pay rates and outgoings. The proceeds of sale were to be applied in a defined order, including the discharge of a mortgage and payment of arrears, with a specific calculation for the wife's entitlement and the balance to the husband, subject to adjustments for rates. The court also ordered the sale of a utility vehicle, the transfer of a motor vehicle to the husband, and the delivery of specific personal items to the wife. Crucially, the court ordered a base amount of $171,103 to be allocated to the wife from the husband's PSS scheme interest, with the trustee to pay splittable payments to the wife in accordance with the Family Law (Superannuation) Regulations 2001. The orders stipulated that each party would be solely entitled to other property in their possession, with joint tenancies severed, and each party to be solely liable for liabilities encumbering their respective entitlements.

Orders

Orders of the court

That within 14 days the husband and wife each execute all necessary documents and provide all necessary consents to procure a sale of the real property situate at and known as … Road, T, New South Wales (“the real property”) by way of private treaty, and subject to any agreement between the parties to the contrary, the following provisions shall apply :

(a) the reserve price for the real property shall be as agreed between the parties or, in default of agreement, nominated by a valuer (who is also a licensed real estate agent) appointed by the President of the New South Wales Division of the Australian Property Institute;

(b) the real property shall be offered for sale by a real estate agent agreed to by the parties and, in default of agreement, the real estate agent appointed as a valuer pursuant to the preceding sub-paragraph.

(c) save with the written consent of the other party, a party shall not (either directly or through any agent or nominee) purchase the real property;

(d) the husband shall have the conduct of the sale;

(e) notwithstanding the provisions of sub-paragraph (d) hereof, both parties must agree to any pre-sale maintenance or other work on the real property unless the same is certified as being required by the real estate agent.

That pending the settlement of the sale :

(a) the husband shall have the right to occupy the real property and during that period he pay all rates, taxes and other outgoings as they fall due (not including the rate arrears of $2,242 referred to in the reasons for judgment published this day);

(b) the parties hold their respective interests in the real property on trust pursuant to these orders; and

That upon completion of the sale the proceeds of the sale shall be applied as follows :

(a) first, to pay all costs, commissions and expenses of the sale;

(b) second, to pay rate arrears of $2,242;

(c) third, subject to paragraph (4) hereof, to pay any council and water rates and maintenance levies then outstanding in respect of the real property;

(d) fourth, to discharge mortgage registered number … to H Pty. Ltd.;

(e) fifth, to pay to B School the sum of $630;

(f) sixth, to pay to the wife a sum calculated as follows, where A is the balance of the proceeds of sale after payments due pursuant to sub-paragraphs (a) to (e) of this paragraph and B is the nett proceeds of sale of the Ford Utility referred to in paragraph (5) hereof :

A + B + $36,000 x 55% - $6,000

(g) seventh, subject to paragraph (4) hereof, the balance to the husband.

That any rates or levies adjusted against the parties as vendors on settlement of the sale of the real property which are in excess of rate arrears of $2,242 shall be the sole responsibility of the husband, and one-half of any sum so adjusted against the parties and paid pursuant to the provisions of paragraph (3)(c) hereof shall be deducted from the sum otherwise due to the husband pursuant to the provisions of paragraph (3)(g) hereof, and be paid to the wife.

That within 14 days the husband and wife execute all necessary documents to procure a sale of the Ford Utility and the nett proceeds of sale, after payment of the costs and expenses of sale, be held in trust pursuant to these orders.

That within 14 days the wife do all acts and sign all documents necessary to transfer to the husband the whole of her interest in the Ford Territory motor vehicle.

That within 14 days the husband deliver to the wife the horse gear in the shed and the wife’s personal items referred to, respectively, in paragraphs 15(vi) and 15(viii) of the amended application filed by the wife on 2 May, 2007.

That a base amount of $171,103 is allocated by the Court as required by s.90MT(4) of the Family Law Act 1975 to the wife (“the non member spouse”) out of the husband’s (“the member spouse”) interest in the P Superannuation Scheme (“the PSS scheme”).

That in accordance with s.90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable from the husband’s interest in the PSS scheme, the SAS Trustee Corporation as Trustee of the PSS scheme (“the PSS scheme trustee”) shall pay to the wife an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the “base amount” of $171,103 and that there be a corresponding deduction in the entitlement that the husband would have in the PSS scheme but for these orders.

10.

That the husband shall do all acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the PSS scheme trustee can calculate the entitlement of, and make payment to, the wife in accordance with these orders.

11.

That these orders have effect from the operative time and the operative time is four (4) days from the date of service of a sealed copy of these orders on the PSS scheme trustee.

12.

That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the PSS scheme to a fund of the wife’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

13.

That 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 other property (including choses in action) in the possession of such party as at the date of these orders and any property remaining in the former matrimonial home which is not referred to in these orders be deemed to be the property of the husband;

(b) each party forego any claims he or she may have to any superannuation benefits belonging to or earned by the other;

(d) 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

(e) any joint tenancy of the parties in any real personal estate is expressly severed.

14.

That all extant applications be otherwise dismissed.

15.

That these proceedings be removed from the List of matters awaiting finalisation.

16.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

The value of the transferable benefits from the husband’s interest to the wife’s interest are calculated in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994;

Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the husband’s superannuation interest in the PSS scheme made after the PSS scheme trustee has created a new interest in the wife’s name in the PSS scheme, as contemplated in paragraph (12) of these orders, are not splittable payments; and

The PSS scheme trustee will be relieved of its obligations to calculate and split payments under paragraph (9) of these orders in the event that the transferable benefits are transferred to a fund of the wife’s choosing in accordance with the requirements under the Superannuation Industry (Supervision) Regulations 1994.

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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