Fishlock and Fishlock

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FISHLOCK & FISHLOCK [2013] FCCA 1232
Catchwords:
FAMILY LAW – Property settlement – contributions – s.75(2) factors – date of separation and relevance for inclusion of liabilities in the property pool – relevance of wife’s alcoholism and demise of the husband’s business.

Legislation:  

Family Law Act 1975 (Cth)
Federal Circuit Court Rules2001

Federal Circuit Court Regulations

Ferraro & Ferraro (1993) FLC 92-335
Clauson & Clauson (1995) FLC 92-595
Hickey & Hickey v Attorney Desk General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Stanford & Stanford (2012) 87 ALJR 74
Russell & Russell (1999) FLC 92-877
Applicant: MR FISHLOCK
Respondent: MS FISHLOCK
File Number: DGC 1231 of 2011
Judgment of: Judge McGuire
Hearing dates: 12 & 13 August 2013
Date of Last Submission: 13 August 2013
Delivered at: Melbourne
Delivered on: 10 October 2013

REPRESENTATION

Counsel for the Applicant: Mr Laidlaw
Solicitors for the Applicant: Bramich Legal
Counsel for the Respondent: Mr Weil
Solicitors for the Respondent: T J Mulvany & Co

ORDERS

  1. That the monies held in trust on behalf of the parties from the proceeds of sale of the former matrimonial home be disbursed as follows:

    (a)An amount of $72,546 to be retained by the husband’s solicitors in trust for the parties jointly, and until satisfaction of any claim by (omitted) Limited against the husband or (omitted) Pty Ltd and thereafter, any remaining balance to be distributed as to 70 per cent to the husband and 30 per cent to the wife.

    (b)An amount to the husband of $96,651 plus 70% in any amount held in Trust over $225,887.

    (c)An amount to the wife of $23,860 plus 30% of any amount held in Trust over $225,887.

    (d)An amount of $13,000 to satisfy the debt to Mr L.

    (e)An amount of $19,830 to satisfy the debt to Mr W/Ms P.

  2. That within 28 days of the date of these orders, the husband transfer and/or vest all his right, title and interest in the following to the wife absolutely:

    (a)The parties’ (omitted) Shares shares.

    (b)All personalty and chattels in the possession of or under the control of the wife at the date of these orders.

    (c)The balances of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders.

    (d)The wife’s (omitted) superannuation policy and entitlement.

  3. That contemporaneously with the transfer  and vesting orders referred to in paragraph 2 hereof, the wife transfer and/or vest all her right, title and interest in the following to the husband absolutely:

    (a)The Mitsubishi (omitted) motor vehicle retained by the husband (or its proceeds of sale);

    (b)All personalty and chattels in the possession of or under the control of the husband as at the date of these orders;

    (c)The balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these orders;

    (d)The husband’s (omitted) Superannuation Fund superannuation policy and entitlement,…

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Details
Case
[2013] FCCA 1232
Decision Date

CaseChat Overview and Summary

This matter concerned the division of property between Mr Fishlock and Ms Fishlock. The court was required to determine how the proceeds of sale of the former matrimonial home, along with various other assets and liabilities, should be distributed between the parties. The orders also addressed the division of superannuation entitlements.

The primary legal issues before the court were the equitable distribution of the parties' financial resources and the appropriate method for splitting superannuation interests. This involved determining the quantum of each party's entitlement from the sale proceeds, the allocation of specific assets and debts, and the mechanism for transferring a portion of the husband's superannuation to the wife in accordance with the *Family Law Act 1975*.

The court ordered the disbursement of monies held in trust from the sale of the former matrimonial home, with a significant portion to be retained by the husband's solicitors pending the satisfaction of a third-party claim, after which the balance was to be divided 70% to the husband and 30% to the wife. Specific sums were also allocated to satisfy debts owed to third parties. The orders further stipulated the transfer of various assets, including shares, personalty, bank accounts, and superannuation entitlements, between the parties. Notably, the court made specific orders pursuant to section 90MT(4) of the *Family Law Act 1975* regarding the wife's entitlement from the husband's superannuation interest, including provisions for future splittable payments and communication with the superannuation trustee. Each party was made solely responsible for liabilities attaching to the assets they retained.

Orders

Orders of the court

1.

That the monies held in trust on behalf of the parties from the proceeds of sale of the former matrimonial home be disbursed as follows:

(a) An amount of $72,546 to be retained by the husband’s solicitors in trust for the parties jointly, and until satisfaction of any claim by (omitted) Limited against the husband or (omitted) Pty Ltd and thereafter, any remaining balance to be distributed as to 70 per cent to the husband and 30 per cent to the wife.

(b) An amount to the husband of $96,651 plus 70% in any amount held in Trust over $225,887.

(c) An amount to the wife of $23,860 plus 30% of any amount held in Trust over $225,887.

(d) An amount of $13,000 to satisfy the debt to Mr L.

(e) An amount of $19,830 to satisfy the debt to Mr W/Ms P.

2.

That within 28 days of the date of these orders, the husband transfer and/or vest all his right, title and interest in the following to the wife absolutely:

(a) The parties’ (omitted) Shares shares.

(b) All personalty and chattels in the possession of or under the control of the wife at the date of these orders.

(c) The balances of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders.

(d) The wife’s (omitted) superannuation policy and entitlement.

3.

That contemporaneously with the transfer and vesting orders referred to in paragraph 2 hereof, the wife transfer and/or vest all her right, title and interest in the following to the husband absolutely:

(a) The Mitsubishi (omitted) motor vehicle retained by the husband (or its proceeds of sale);

(b) All personalty and chattels in the possession of or under the control of the husband as at the date of these orders;

(c) The balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these orders;

(d) The husband’s (omitted) Superannuation Fund superannuation policy and entitlement, but subject to these orders.

4.

That each party be solely responsible for and indemnify the other in respect of any liabilities attaching to any of the assets to be retained by that party pursuant to these orders.

5.

That pursuant to section 90MT(4) of the Family Law Act 1975 (“the Act”) the base amount allocated to the wife MS FISHLOCK out of the interest of the husband MR FISHLOCK (membership (omitted)) is $19,578.

6.

That pursuant to section 90MT1(a) of the Act whenever a splittable payment becomes payable in respect of the interest of the husband in the (omitted) Superannuation Fund the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 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.

7.

That order 6 has effect from the operative time.

8.

The operative time for the purpose of order 6 of these orders is four business days after the service of these orders upon the Trustee of the Fund.

9.

That the husband shall direct and authorise the Trustee of the Fund to communicate with the wife and or any other person authorized by her in writing to:

(a) Answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the Fund;

(b) Provide to the wife or her authorised representative a copy of any notice of any application or request by the husband which seeks a release of entitlements in the Fund in so far as that release may affect the wife’s entitlement in the Fund pursuant to these Orders.

10.

The husband, his servants and agents be and are hereby restrained from doing any act or thing which would prevent the wife, her heirs and executors, administrators or nominees from receiving benefits in this Fund to which she is entitled pursuant to these Orders.

11.

In the event that the Superannuation split to the wife pursuant to these Orders can be rolled over into a separate account to the wife each of the parties hereto shall each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

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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