FISCHER & FISCHER

[2018] FCCA 3755

FEDERAL CIRCUIT COURT OF AUSTRALIA

FISCHER & FISCHER [2018] FCCA 3755

Catchwords:
FAMILY LAW – Property – Application for property adjustment – whether just and equitable to alter the parties interests – defined benefit superannuation entitlement.

Legislation:

Family Law Act 1975 (Cth), ss.79, 75(2)

Cases cited:

Stanford v Stanford [2012] HCA 52

In the Marriage of Hickey [2003] FamCA 395
Bevan & Bevan [2013] FamCAFC 116
Chancellor & McCoy [2016] FamCAFC 256
De Angelis & De Angelis [1999] FamCA 1609
Kowaliw & Kowaliw [1981] FamCA 70
Bell & Nahos [2016] FamCAFC 244

Applicant: MS FISCHER

Respondent: MR FISCHER

File Number: MLC 2009 of 2015

Judgment of: Judge Williams

Hearing date: 27 September 2018

Date of Last Submission: 16 October 2018

Delivered at: Melbourne

Delivered on: 18 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Mort

Solicitors for the Applicant: Vassis & Co.

The Respondent: In Person

ORDERS

1. The Application of the Wife filed 28 April 2016 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Fischer & Fischer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2009 of 2015

MS FISCHER

Applicant

And

MR FISCHER

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for property adjustment pursuant to s.79 of the Family Law Act 1975 (“the Act”).

ISSUES IN DISPUTE

1. The issue in dispute between the parties is:

   i)Is it just and equitable to alter the parties interest in property;

   ii)If so, whether the remaining asset, a defined benefit superannuation entitlement in the payment phase, should be split between the parties.

BACKGROUND

1. The applicant wife was born on … 1956 and is aged 62.  She is self-employed in the partnership with the parties’ daughter, Ms A in a business known as “Business D”.

2. The respondent husband was born on … 1955 and is aged 63 years.  He is retired.

3. The parties married on … 1977 and separated on 1 January 2008.  They divorced on 28 April 2015.

4. Between the date of the marriage and 1983 the parties lived rent-free with the wife’s parents.

5. In 1983 the parties purchased from the wife’s parents a property situated at Property F.  The purchase price was $85,000, which was the price the wife’s parents had paid for the property in 1977. An arrangement was entered into whereby the wife’s parents lent the purchase price to the parties, subject to them paying interest of 10% per annum.

6. The husband and wife made loan repayments till … 1991, when the balance outstanding was approximately $84,000.  The loan was then forgiven by the wife’s parents.

7. In … 1997 the husband received the sum of $25,000 from his mother’s estate.

8. Between late 1990’s and early 2000’s the wife received the sum of approximately $140,000 from her superannuation which was applied towards renovating the family home.

9. In 2001 the husband was forced to resign from his full time employment with Employer 1.  He had also been working as a tradesman, which was…