FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fletcher & Parkins (No 2) [2024] FedCFamC1F 10
File number(s): BRC 1728 of 2018 Judgment of: BAUMANN J Date of judgment: 24 January 2024 Catchwords: FAMILY LAW – PROPERTY – Where Reasons for Judgment were previously delivered – factual errors subsequently identified – Further findings made – Final property adjustment orders made Legislation: Family Law Act 1975 (Cth) Cases cited: Fletcher & Parkins [2022] FedCFamC1F 804
Semperton & Semperton (2012) 47 Fam LR 626
Smith v New South Wales Bar Association (1992) 176 CLR 256
Swaney & Ward (1988) FLC 91-928
Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 17 November 2022 Place: Brisbane Solicitor for the Applicant: Rostron Carlyle Rojas Lawyers Counsel for the Respondent: Mr M Drysdale KC Solicitor for the Respondent: Hopgood Ganim Lawyers ORDERS
BRC 1728 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FLETCHER
Applicant
AND: MS PARKINS
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
24 JANUARY 2024
THE COURT ORDERS:
1.That as and by way of property settlement pursuant to s 79 of the Family Law Act 1975 (Cth), the net property of the parties be adjusted on the following basis:
(a)47.5% to the wife; and
(b)52.5% to the husband.
2.That as part of the wife’s entitlement to property settlement, and subject to the payment by the wife to the husband of the sum set out at Order 4, the wife shall retain and/or receive as her absolute property, all her right, title and interest to and in, and the husband shall relinquish and/or transfer to the wife, all of his right, title and interest, if any, to and in the following within thirty (30) days from the date of these Orders being made:
(a)The property located at S Street, Suburb T in the State of Queensland, more particularly described as Lots 1 on Registered Plan … and Lots 2 and 3 on Registered Plan … Title Reference … registered in the parties’ joint names (“the Suburb T property”), and for this purpose:
(i)the parties cause the balance owing in respect of the joint Commonwealth Bank home loan account …08 to be paid from the joint Commonwealth Bank account …86;
(ii)the parties sign all documents and do all things necessary to discharge the mortgage secured against the property and to transfer the property unencumbered into the wife’s sole name; and
(iii)the wife thereafter be solely responsible for and indemnify and release the Husband with respect to all liabilities relating to the property;
(b)All monies held in accounts with any banks or financial institutions in the wife’s sole name;
(c)The personal belongings in the wife’s possession;
(d)Such furniture, chattels and household effects as agreed;
(e)Motor Vehicle 2 registration … registered in the joint names of the parties but in the wife’s possession and for this purpose, the parties do all acts and sign all documents necessary to transfer the motor vehicle to the wife, free…
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CaseChat Overview and Summary
The court found that the parties' net property should be divided 47.5% to Ms Parkins and 52.5% to Mr Fletcher. The court made specific orders regarding the transfer of various properties, accounts, and assets to achieve this division. Notably, the court ordered the transfer of the Suburb T property to Ms Parkins, subject to the payment of any outstanding mortgage and the transfer of the property free of encumbrance. Ms Parkins was also ordered to pay Mr Fletcher $415,750, with the ability to offset this payment against any outstanding liability for costs. If Ms Parkins was unable to make this payment, the court ordered the sale of the Suburb T property with the net proceeds distributed to achieve the overall property adjustment.
In its reasoning, the court considered the principles of just and equitable property settlement under the Family Law Act 1975 (Cth) and the need to correct the factual errors identified in the previous judgment. The court emphasised the importance of achieving a fair outcome for both parties, taking into account their respective contributions and needs.
The final orders of the court included detailed provisions for the transfer of specific properties, accounts, and assets, as well as provisions for the payment of the $415,750 by Ms Parkins to Mr Fletcher. The court also made orders regarding the allocation of superannuation entitlements and liabilities, ensuring that each party was responsible for their respective financial obligations.
Orders
Orders of the court
BRC 1728 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR FLETCHER
Applicant
AND:
MS PARKINS
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
24 JANUARY 2024
THE COURT ORDERS:
1. That as and by way of property settlement pursuant to s 79 of the Family Law Act 1975 (Cth), the net property of the parties be adjusted on the following basis:
(a) 47.5% to the wife; and
(b) 52.5% to the husband.
2. That as part of the wife’s entitlement to property settlement, and subject to the payment by the wife to the husband of the sum set out at Order 4, the wife shall retain and/or receive as her absolute property, all her right, title and interest to and in, and the husband shall relinquish and/or transfer to the wife, all of his right, title and interest, if any, to and in the following within thirty (30) days from the date of these Orders being made:
(a) The property located at S Street, Suburb T in the State of Queensland, more particularly described as Lots 1 on Registered Plan … and Lots 2 and 3 on Registered Plan … Title Reference … registered in the parties’ joint names (“the Suburb T property”), and for this purpose:
(i) the parties cause the balance owing in respect of the joint Commonwealth Bank home loan account …08 to be paid from the joint Commonwealth Bank account …86;
(ii) the parties sign all documents and do all things necessary to discharge the mortgage secured against the property and to transfer the property unencumbered into the wife’s sole name; and
(iii) the wife thereafter be solely responsible for and indemnify and release the Husband with respect to all liabilities relating to the property;
(b) All monies held in accounts with any banks or financial institutions in the wife’s sole name;
(c) The personal belongings in the wife’s possession;
(d) Such furniture, chattels and household effects as agreed;
(e) Motor Vehicle 2 registration … registered in the joint names of the parties but in the wife’s possession and for this purpose, the parties do all acts and sign all documents necessary to transfer the motor vehicle to the wife, free of encumbrance, and the wife otherwise be solely responsible for all costs associated with the motor vehicle including running costs, insurance, maintenance and repair costs;
(f) The wife’s superannuation entitlements, subject to Order 8; and
(g) The balance in property and/or cash to effect an overall just and equitable property settlement to the wife as determined.
3. That as part of the husband’s entitlement to property settlement, the husband retain and/or receive as his absolutely property, all his right, title and interest to and in, and the wife shall relinquish and/or transfer to the husband, all of her right, title and interest, if any, to and in the following within thirty (30) days from the date of these Orders being made:
(a) Motor Vehicle 3 registration … registered in the joint names of the parties but in the Husband’s possession and for this purpose, the parties do all acts and sign all documents necessary to transfer the motor vehicle to the Husband, free of encumbrance, and the Husband otherwise be solely responsible for all costs associated with the motor vehicle including running costs, insurance, maintenance and repair costs;
(b) The husband’s Motor Vehicle 1 registration …;
(c) Funds withdrawn by the husband from the Commonwealth Bank home loan account …08 secured against the Suburb T property and retained by the husband in June 2017;
(d) All monies held in accounts with any banks or financial institutions in the husband’s sole name;
(e) The personal belongings in the husband’s possession;
(f) Such furniture, chattels and household effects as agreed;
(g) The husband’s superannuation entitlements;
(h) The husband’s share portfolio;
(i) The precious stones and gems;
(j) A superannuation split from the wife’s superannuation entitlement, pursuant to Order 9; and
(k) The husband’s entitlements as a member of the Superannuation Fund 1; and
(l) The balance in property and/or cash to effect an overall just and equitable property settlement to the husband as determined.
4. That the wife shall have sixty (60) days from the date of these Orders to pay to the husband the sum of $415,750 (“the cash payment”) on the following basis:
(a) From the said cash payment, the wife shall be entitled to offset the liability of the husband to the wife arising from the Order for costs made by the Federal Circuit Court of Australia on 21 January 2020, with such liability to include interest at the rates prescribed under the Family Law Act 1975 (Cth), as calculated and agreed by the parties, and failing agreement as to the calculation of interest, the parties shall have liberty to re-list the matter to enable the Court to determine that calculation;
(b) The wife shall inform the husband in writing within thirty (30) days of the date of this Order that she is able to raise finance so as to be in a position to make the cash payment; and
(c) If the wife is unable or unwilling to make the cash payment, the parties shall take all steps necessary to sign all such documents as are necessary to effect a sale of the Suburb T property, and the parties shall have liberty to apply for any necessary machinery orders that give effect to the sale of the Suburb T property, with the nett proceeds to be distributed so as to achieve the overall adjustment of the nett property of the parties in accordance with Order 1.
5. That the husband be solely responsible for and meet payment of all liabilities in the husband’s name (but excluding any liabilities specifically dealt with in these Orders) and the husband shall indemnify the wife from any liability howsoever arising thereunder.
6. That the wife be solely responsible for and meet payment of all liabilities in the wife’s name (but excluding any liabilities specifically dealt with in these Orders) and the wife shall indemnify the husband from any liability howsoever arising thereunder.
7. That subject to making the payments set out in Orders 2, 3 and 4 hereof, the parties shall do all acts necessary and sign all documents necessary to close their joint Commonwealth Bank accounts …86, …67, …57 and …23 after allowing for any unpresented cheques in favour of any third party, and transfer to the wife the credit balance of the said personal joint bank accounts.
8. That the parties sign all documents and do all things necessary to cause the wife to become the sole signatory in respect of the children’s Commonwealth Bank accounts …04 (Y’s account) and …89 (X’s account).
9. That in accordance with s 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $200,000 is allocated to the husband out of the wife’s (Ms Parkins’ member number …) superannuation with Superannuation Fund 2.
10. That in accordance with s 90XT(1)(a) of the Family Law Act 1975 (Cth):
(a) the husband (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the clause immediately preceding this clause of this Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b) the entitlement of the wife in Superannuation Fund 2 (of the entitlement of such other person who becomes entitled to receive a payment out of the wife’s superannuation interest) is correspondingly reduced by force of this Order.
(c) that the Trustee of Superannuation Fund 2, AC Limited (“the Trustee”), shall do all acts and things and sign all such documents as may be necessary to:
(i) calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) the entitlement awarded to the Husband in the clause immediately preceding this clause of this Order; and
(ii) pay the entitlement whenever the Trustee makes a splittable payment from the wife’s superannuation interest in Superannuation Fund 2.
(d) that this Order has effect from the operative time, and the operative time for the purposes of this Order is four (4) business days after a certified copy of these Orders are served on the Trustee of Superannuation Fund 2.
11. That save and except for the property and financial resources dealt with pursuant to the terms of these Orders, each party shall retain as his or her own property absolutely all assets and/or financial resources of whatsoever description and wheresoever situate of which that party is the legal owner of and/or which is/are in the possession of and/or under the control of that party as at the date of these Orders.
12. That unless otherwise provided for in these Orders, each party shall do all acts and sign all documents to give full force and effect to the terms of these Orders. In the event either party refuses or neglects to comply with the provision of these Orders within seven (7) days of a written requesting to do so by the other party, then a Registrar of this Court shall be appointed to execute all documents in the name of the party necessary to give validity and operation to the terms of these Orders.
13. That save and except as otherwise provided for in these Orders, the transferee spouse or the spouse receiving the benefit of a transaction pursuant to these Orders shall prepare all documentation necessary at their sole expense to give effect to the provisions of these Orders at their cost and further be responsible for the payment of any registration fees in relation to the transfer of the property into their sole name.
14. That any duty payable on any transactions arising from these Orders or any documents executed pursuant to these Orders shall be paid by the transferee spouse or the spouse receiving the benefit of such transfer or transaction.
15. That either party shall have liberty to apply to this Honourable Court upon the giving of seven (7) days’ notice in writing to the other party in relation to interpretation and/or enforcement of the terms and conditions hereof.
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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