FAMILY COURT OF AUSTRALIA
| GARBUTT & SALZWEDEL | [2019] FamCA 110 |
| FAMILY LAW – PROPERTY – Settlement in relation to a marriage – Where the parties seeks orders for an adjustment of the matrimonial property – Where the parties agree that an adjustment should be made in favour of the wife – Where the parties disagree as to the size of that adjustment and how much of it should be derived from non-superannuation versus superannuation assets – Where the wife has made a greater homemaker and parenting contribution – Where the husband has made a greater financial contribution – Court finds that the parties contributions have been equal, apart from a financial contribution made on behalf of the husband in the form of a monetary gift from his parents – Where the husband has a sizeable loan to his sister – Court finds that the parts of that loan attributable to payment of the husband’s legal fees and child support obligation should not be included as a joint liability – Orders made for the wife to receive 66.6 per cent of the matrimonial asset pool. |
| Family Law Act 1975 (Cth) ss 75, 79, 117 Family Law Rules 2004 r 15.47(1) |
| Bevan & Bevan (2013) FLC 93-545 Biltoft and Biltoft (1995) FLC 92-614 Carmel-Fevia & Fevia (No. 3) [2012] FamCA 631 Coghlan & Coghlan (2005) FLC 93-220 Drewett & Drewett [2012] FamCA 320 Farnell and Farnell (1996) FLC 92-681 Fields & Smith (2015) FLC 93-638 Grefeld & Grefeld And Anor [2010] FamCA 50 Grier & Malphas (2017) 55 Fam LR 107 Lee Steere & Lee Steere (1985) FLC 91-626 Mallet & Mallet (1984) 156 CLR 605 Petruski & Balewa (2013) 49 Fam LR 116 Rodgers & Rodgers (No. 2) (2016) FLC 93-712 Sebastian & Sebastian (No 5) [2013] FamCA 191 Stanford & Stanford (2012) 247 CLR 108 Tomasetti & Tomasetti (2000) FLC 93-023 |
| APPLICANT: | Mr Garbutt |
| RESPONDENT: | Ms Salzwedel |
| FILE NUMBER: | SYC | 2864 | of | 2017 |
| DATE DELIVERED: | 4 March 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 5 - 9 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sperling |
| SOLICITOR FOR THE APPLICANT: | Colquhoun & Colquhoun |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Anne Day & Associates |
Orders
Former matrimonial home sale proceeds
Upon the sale of the property situated at and known as C Street, Suburb F NSW, being the whole of the land in Folio Identifier … pursuant to consent orders made 9 November 2018, the proceeds of sale shall be paid in the following manner and priority:
(a)Firstly, in payment of all amounts to discharge registered mortgage no. …48 to D Bank;
(b)Secondly, in payment of any expenses relating to the sale;
(c)Thirdly, payment of $40,974 to Ms B;
(d)Fourthly, payment of $8,268 to the wife;
(e)Fifthly, payment of 66.6 per cent of the net balance to the wife; and
(f)Sixthly, payment of the balance to the husband.
Superannuation
The Court allocates, as required by…
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- AGLC
- Garbutt and Salzwedel [2019] FamCA 110
- Case
- [2019] FamCA 110
- Decision Date
CaseChat Overview and Summary
The court was required to determine the distribution of the proceeds from the sale of the property at C Street, Suburb F NSW, and to allocate a portion of the husband's superannuation interest in Super Fund 2 to the wife. Additionally, the court needed to make ancillary orders to give effect to the parties' agreement regarding other property, mutual releases, and the appointment of the Registrar to execute documents if necessary.
The court's reasoning was based on the consent of both parties, as evidenced by the numerous orders prefaced with "By consent." The orders provided a detailed priority for the distribution of the sale proceeds of the former matrimonial home, commencing with the discharge of a registered mortgage, followed by sale expenses, specific monetary payments to Ms B and the wife, and then a percentage split of the net balance between the wife and the husband. In relation to superannuation, the court allocated a base amount to the wife from the husband's interest in Super Fund 2, in accordance with section 90XT(4) of the *Family Law Act 1975* (Cth). The orders further stipulated the process for the trustee to calculate and pay the wife's entitlement and for the husband to facilitate the rollover of the non-member spouse interest.
The court made orders by consent that the parties would each be the sole legal and beneficial owners of other property in their possession, and that they would release each other from all claims. The Registrar was appointed to sign documents on behalf of a party if they refused or neglected to do so for 14 days. The court noted that these orders finally determined the financial relationships between the parties, avoiding further proceedings.
Orders
Orders of the court
Former matrimonial home sale proceeds
1.
Upon the sale of the property situated at and known as C Street, Suburb F NSW, being the whole of the land in Folio Identifier … pursuant to consent orders made 9 November 2018, the proceeds of sale shall be paid in the following manner and priority:
(a) Firstly, in payment of all amounts to discharge registered mortgage no. …48 to D Bank;
(b) Secondly, in payment of any expenses relating to the sale;
(c) Thirdly, payment of $40,974 to Ms B;
(d) Fourthly, payment of $8,268 to the wife;
(e) Fifthly, payment of 66.6 per cent of the net balance to the wife; and
(f) Sixthly, payment of the balance to the husband.
Superannuation
2.
The Court allocates, as required by s 90XT(4) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $243,838 to the Respondent wife (“the wife”) out of the Applicant husband's (“the husband”) interest in the Super Fund 2, member number …21 (“the Fund”).
3.
By consent, in accordance with s 90XT(l)(a) of the Act:
(a) The wife (or the wife’s administrators, executors, beneficiaries, heirs or assignees) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b) The entitlement of the husband in the Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interest) is correspondingly reduced by force of this order.
4.
By consent, the trustee of the Fund (“the Trustee”) shall do all such acts and things and sign all documents as may be necessary to:
(a) Calculate, in accordance with the requirements of the Act, the entitlement awarded to the wife in the immediately preceding clause of this order; and
(b) Pay the entitlement whenever the Trustee makes a splittable payment from the husband’s interest in the Fund.
5.
By consent, this order has effect from the operative time being the fourth business day after the service of this order on the Trustee.
6.
By consent, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the wife’s choosing in accordance with the SIS Regulations.
7.
THE COURT NOTES THAT:
(a) The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b) Any payment from the husband’s superannuation interest in the Fund made after the Trustee has created a new interest in the wife’s name in the Fund are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
Ancillary orders
8.
By consent, other than as herein provided, the parties each be declared the sole legal and beneficial owners of all other items of property presently in their respective names, possession or control, including but not limited to money, bank accounts, shares, real property, motor vehicles, entitlements to superannuation, business interests, financial resources, furniture, furnishings and personal effects including jewellery.
9.
By consent, each party hereby releases the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing and will indemnify and keep indemnified one another with respect to liabilities in their sole name.
10.
By consent, both parties shall do all acts and things and execute all documents and instruments as are necessary to give effect to all or any of this order.
11.
By consent, in the event that any party refuses or neglects to sign any document or do anything required or contemplated by these orders, with such failure continuing for 14 days, then the Registrar of the Court be appointed pursuant to s 106A of the Act, as amended, to sign such documents and do such things on behalf of either party.
12.
By consent, all extant applications in this matter are otherwise dismissed.
13.
THE COURT NOTES THAT the parties acknowledge that these orders finally determine the financial relationships between them and avoid further proceedings between them pursuant to s 81 of the Act as amended.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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