FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gellner & Gellner (No 3) [2024] FedCFamC2F 1809
File number(s): SYC 4187 of 2023 Judgment of: JUDGE STREET Date of judgment: 16 December 2024 Catchwords: FAMILY LAW – PROPERTY – no binding financial agreement between the parties – redraws on the mortgage by the wife – equal financial contributions – slightly greater non-financial contributions by the wife impacted by duration of marriage and relatively small property pool- husband has reduced earning capacity –after future needs adjustment - 48% in favour of husband and 52% in favour of wife - no order as to cost Legislation: Family Law Act 1975 (Cth) Cases cited: Browne v Green [1999] FamCA 1483
Dickons & Dickons [2012] FamCAFC 154
DJM v JLM (1998) FLC 92-816
Dovgan & Dovgan [2021] FamCA 306
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143
Jabour & Jabour [2019] FamCAFC 78
Kildea v Kildea (2007) 38 Fam LR 347
Kowaliw & Kowaliw (1981) FLC 91-092
Manolis v Manolis (No 2) [2011] FamCAFC 105
Milankov & Milankov [2002] FamCA 195
Omacini and Omacini (2005) FLC 93-218
Perrin & Perrin (No 2) [2018] FamCAFC 122
Division: Division 2 Family Law Number of paragraphs: 161 Date of last submission/s: 6 December 2024 Date of hearing: 5 December 2024 and 6 December 2024 Counsel for the Applicant: Mr S Gardiner Solicitor for the Applicant: One Group Legal Counsel for the Respondent: Mr A Strik Solicitor for the Respondent: Urban Family Lawyers ORDERS
SYC 4187 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GELLNER
Applicant
AND: MS GELLNER
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT DECLARES THAT:
A.The Court considers it is appropriate and just and equitable to alter the property interest of the parties under s79 of the Family Law Act 1975 (Cth) as identified in the following orders.
THE COURT ORDERS THAT:
1.That within 60 days from the date of these orders, the Respondent do all acts and things and sign all documents necessary to pay the Applicant the sum of $560,744.
Sale of Property
2.In the event that the Respondent does not comply with order 1 herein, that 7 days after receiving written notice from the Applicant, the Respondent and Applicant do all acts and things and sign all documents as required to list the Property for sale by public auction on the following terms:
(a)That within two (2) business days, the husband is to provide to the wife a panel of 3 nominated agents and the wife shall thereafter select 1 within 2 days of receiving the husbands nominated panel. If the wife fails to nominate an agent, then the husband is to select an agent from the nominated panel. The agent selected by the wife (or husband failing nomination by the wife) shall be appointed as agent to act on the sale (the Agent);
(b)That within two (2) business days,…
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- AGLC
- Gellner & Gellner (No 3) [2024] FedCFamC2F 1809
- Case
- [2024] FedCFamC2F 1809
- Decision Date
CaseChat Overview and Summary
The court examined the financial and non-financial contributions of both parties, the duration of their marriage, and the husband’s reduced earning capacity. It found that the wife’s contributions were slightly greater, but this was impacted by the relatively small property pool and the duration of the marriage. The husband’s reduced earning capacity after adjusting for future needs was also considered. The court concluded that the wife's contributions warranted a slight adjustment, resulting in a 52% division in her favour and 48% in favour of the husband. The court determined that these percentages reflected an equitable outcome, taking into account all the relevant factors.
The court ordered that Ms Gellner pay Mr Gellner $560,744 within 60 days, failing which the property would be sold by public auction. The sale terms were detailed, including the selection of agents and solicitors, the sale price, and the handling of sale proceeds. The court also restrained Ms Gellner from further withdrawals from the mortgage and encumbering the property until compliance or completion of the sale. The court further outlined the respective personal property of each party and their mutual indemnification obligations.
No costs order was made in relation to the proceedings, as the court found no circumstances justifying such an order. The court reserved its written reasons for the costs decision, indicating that further details would be provided in subsequent written reasons. The final orders were made under the authority of the Family Law Act 1975 (Cth), ensuring the equitable division of the parties' property and the protection of their respective interests.
Orders
Orders of the court
SYC 4187 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR GELLNER
Applicant
AND:
MS GELLNER
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT DECLARES THAT:
A. The Court considers it is appropriate and just and equitable to alter the property interest of the parties under s79 of the Family Law Act 1975 (Cth) as identified in the following orders.
THE COURT ORDERS THAT:
1. That within 60 days from the date of these orders, the Respondent do all acts and things and sign all documents necessary to pay the Applicant the sum of $560,744.
Sale of Property
2. In the event that the Respondent does not comply with order 1 herein, that 7 days after receiving written notice from the Applicant, the Respondent and Applicant do all acts and things and sign all documents as required to list the Property for sale by public auction on the following terms:
(a) That within two (2) business days, the husband is to provide to the wife a panel of 3 nominated agents and the wife shall thereafter select 1 within 2 days of receiving the husbands nominated panel. If the wife fails to nominate an agent, then the husband is to select an agent from the nominated panel. The agent selected by the wife (or husband failing nomination by the wife) shall be appointed as agent to act on the sale (the Agent);
(b) That within two (2) business days, the husband is to provide to the wife a panel of 3 nominated solicitor/conveyancers and the wife shall thereafter select 1 within 2 days of receiving the husbands nominated panel. If the wife fails to nominate a solicitor/conveyancer, then the husband is to select a solicitor/conveyancer from the nominated panel. The solicitor/conveyancer selected by the wife (or husband failing nomination by the wife) shall be appointed as the solicitor to undertake the conveyancing (the Solicitor)
(c) the costs of and incidental to the Agent and any auctioneer will be borne equally by the parties as and when they fall due;
(d) the sale price at which the Property shall be listed shall be mutually agreed upon by the parties or, in the absence of agreement as recommended by the Agent;
(e) that the auction shall take place no later than four (4) weeks after the Property has been listed for sale by public auction;
(f) the parties shall each co-operate in every way with the Agent including (without limiting the generality of the foregoing):
(i) providing the Agent with a copy of these Orders;
(ii) forthwith instructing the Agent in writing to copy both parties in on all correspondence concerning the sale, feedback from prospective purchasers and any offers;
(iii) making keys available to the Agent;
(iv) allowing inspection of the Property at all reasonable times requested by the Agent;
(v) doing or saying nothing to hinder or prevent a sale being effected;
(vi) ensuring the Property, including the grounds, is in a neat and clean condition at the time of inspection by the Agent and prospective purchasers; and
(vii) signing all documents requested by the agents in relation to the listing for sale of the Property, including but not limited to an Agency Agreement, except a contract or agreement for sale which has not been authorised by the parties’ solicitors.
(g) the Respondent shall each execute a contract for sale in the form prepared by the conveyancers having conduct of the sale and such contract for sale is to be marked with a 42-day completion date unless agreed to in writing by both parties.
3. That the Respondent wife is to provide vacant possession of the Property not less than seven (7) days prior to the completion date of the Contract and shall leave the Property in clean and tidy manner.
4. That pending completion of the sale of the Property under order 6, the Respondent wife will be solely responsible for the payment of the monthly mortgage instalments and the outgoings of the Property.
5. That in the event the Property still fails to be sold in accordance with Order 2 above following an auction pursuant to order 2, then the parties shall continue to hold public auctions for sale, no less than once every 4 weeks, until such time as the Property is sold or as recommended by the Agent.
6. Upon settlement of the sale of the Property, pursuant to order 2 above or order 4 above the parties shall do all acts and things and sign all documents as shall be necessary to cause the proceeds of sale to be applied in the following manner and order:
(a) in payment of the costs of and incidental to such sale, including legal costs and disbursements, the Agent's commission and auction expenses;
(b) in payment of the amount required to discharge the mortgage in favour of Australia and New Zealand Banking Group Limited (the Mortgage) registered over the title of the Property;
(c) payment of 48% of the balance to the applicant husband;
(d) payment 52% of the balance to the respondent wife.
Injunction
7. Pursuant to section 114 of the Family Law Act 1975 (Cth), the Respondent is restrained from any further withdrawal, redraw or drawdown from the mortgage or otherwise seeking to encumber, mortgage or deal in any way with the Property pending compliance with orders 1 or completion of sale in accordance with order 6.
Ancillary
8. That except as provided by these Orders, as and from the date of the Orders and in the future, the Applicant shall retain, to the exclusion of the Respondent, all of his right, title and interest in:
(a) His bank accounts;
(b) Motor vehicle/s registered in his name and in his possession;
(c) is shares and investments;
(d) His superannuation and employment related entitlements;
(e) His compensation payment; and
(f) All other personal property, real estate, including choses in action of whatsoever nature and kind in the possession or control of the Applicant as at the date of these Orders.
9. That except as provided by these Orders, as and from the date of the Orders and in the future the Respondent shall retain, to the exclusion of the Applicant, all of her right, title and interest in:
(a) Her bank accounts;
(b) Motor vehicle/s registered in her name and in her possession;
(c) Her shares and investments;
(d) Her superannuation and employment related entitlements; and
(e) All other personal property, including choses in action of whatsoever nature and kind in the possession or control of the Respondent as at the date of these Orders.
10. That except as provided by these Orders:
(a) The Applicant indemnify the Respondent and keep her indemnified in respect of any actions, claims, suits and demands as may be made against the Respondent in relation to all liabilities in the name of the Applicant, including but not limited to:
(i) Any credit card liability;
(ii) All personal income tax liabilities of the Applicant which are unpaid at the time of the making of these Orders;
(iii) All and any future taxation liabilities of the Applicant;
(iv) Any and all other liabilities in the Applicant’s sole name or jointly with any other person, wherever and however arising.
(b) The Respondent indemnify the Applicant and keep him indemnified in respect of any actions, claims, suits and demands as may be made against the Applicant in relation to all liabilities in the name of the Respondent.
(i) Any credit card liability;
(ii) All personal income tax liabilities of the Respondent which are unpaid at the time of the making of these Orders;
(iii) All and any future taxation liabilities of the Respondent; and
(iv) Any and all other liabilities in the Respondent's sole name or jointly with any other person, wherever and however arising.
11. That in the event that a party refuses or neglects to sign any document required to be signed to comply with this Order, the Registrar of the Federal Circuit and Family Court of Australia is hereby appointed to execute all Deeds and documents in the name of that party and do all acts and things necessary to give validity and operation to this Order pursuant to s 106A Family Law Act 1975 (Cth).
12. The Court reserves its written reasons
Costs
13. In respect of the reserved costs and the application for costs by the applicant, the Court is of the opinion that there are no circumstances that justify the Court in making a costs order taking into consideration all the factors in s 117(2A) Family Law Act 1975 (Cth).
14. The Court reserves its written reasons in respect of the costs order.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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