FEDERAL CIRCUIT COURT OF AUSTRALIA
| GERARD & BARONE | [2018] FCCA 2888 |
| Catchwords: FAMILY LAW – Property – 11 year relationship – parties have two children – weight to be given to initial contributions. |
| Legislation: Family Law Act 1975, ss.75(2), 79, 79(2), 79(4), 90MT(1)(a) , 90MT(4), 106A Family Law (Superannuation) Regulations 2001, reg. 14G |
| Cases cited: Stanford & Stanford (2012) 247 CLR 108 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 |
| Applicant: | MR BARONE |
| Respondent: | MS GERARD |
| File Number: | MLC 8697 of 2016 |
| Judgment of: | Judge Harland |
| Hearing date: | 2 August 2018 |
| Date of Last Submission: | 2 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Fisken |
| Solicitors for the Applicant: | Berry Family Law |
| Counsel for the Respondent: | Mr Arnold |
| Solicitors for the Respondent: | Bowlen Dunstan and Associates Pty |
ORDERS
That within sixty (60) days of date of these orders the wife make a payment to the husband in the sum of $203,590.
That simultaneously with the payment in order 1 herein the husband provide to the wife an executed Withdrawal of Caveat with respect to Caveat lodged by him against the property at Property A in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume (“the Property A property”).
That in the event the wife fails to make the payment, or any part thereof, pursuant to order 1 herein, then within a further 14 days both parties do all things necessary to cause the Property A property to be sold on the terms and conditions as recommended by a sales agent nominated by the president of the REIV and the proceeds of sale be disbursed as follows:
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Second, to discharge the mortgage to Bank secured against the Property A property;
(c)The net balance then to be divided as to 80.5% to the wife and 19.5% to the husband.
That the Court allocate, as required by Section 90MT(4) of the Family Law Act 1975, a base amount of $40,000 to the wife (non-member spouse) out of the husband’s interest in the Super Fund 1 member number (“the fund”).
That, pursuant to Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable with respect to the interest of Mr Barone (member spouse) in the fund:
(a)The wife (non-member spouse) or her legal personal representatives, shall be entitled to be paid an amount in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of…
Continue reading Gerard and Barone
Sign in free to access the full text
- AGLC
- Gerard and Barone [2018] FCCA 2888
- Case
- [2018] FCCA 2888
- Decision Date
CaseChat Overview and Summary
The court was required to determine how to equitably divide the parties' financial resources, including the allocation of a specific sum from the wife to the husband, the disposition of a jointly owned property in the event of non-payment, and the division of superannuation interests in accordance with the *Family Law Act 1975* and its associated regulations. The court also needed to address the retention of various other assets and liabilities by each party.
The court ordered the wife to make a payment of $203,590 to the husband within 60 days, simultaneously with the husband providing a withdrawal of a caveat lodged against a property. In the event of the wife's failure to make this payment, the property was to be sold, with the net proceeds divided 80.5% to the wife and 19.5% to the husband after sale costs, mortgage discharge, and other expenses. The court also allocated a base amount of $40,000 from the husband's superannuation interest to the wife, with provisions for the trustee to facilitate this split and for corresponding reductions in the husband's superannuation. Each party was otherwise ordered to retain specific assets and liabilities to their exclusion, and provisions were made for the execution of necessary documents and the division of joint monies.
Orders
Orders of the court
1.
That within sixty (60) days of date of these orders the wife make a payment to the husband in the sum of $203,590.
2.
That simultaneously with the payment in order 1 herein the husband provide to the wife an executed Withdrawal of Caveat with respect to Caveat lodged by him against the property at Property A in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume (“the Property A property”).
3.
That in the event the wife fails to make the payment, or any part thereof, pursuant to order 1 herein, then within a further 14 days both parties do all things necessary to cause the Property A property to be sold on the terms and conditions as recommended by a sales agent nominated by the president of the REIV and the proceeds of sale be disbursed as follows:
(a) First, to pay all costs, commissions and expenses of the sale;
(b) Second, to discharge the mortgage to Bank secured against the Property A property;
(c) The net balance then to be divided as to 80.5% to the wife and 19.5% to the husband.
4.
That the Court allocate, as required by Section 90MT(4) of the Family Law Act 1975, a base amount of $40,000 to the wife (non-member spouse) out of the husband’s interest in the Super Fund 1 member number (“the fund”).
5.
That, pursuant to Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable with respect to the interest of Mr Barone (member spouse) in the fund:
(a) The wife (non-member spouse) or her legal personal representatives, shall be entitled to be paid an amount in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $40,000; and
(b) There be a corresponding reduction in the superannuation interest of Mr Barone to whom the splittable payment would have been made but for this order.
6.
That order 5 has effect from the operative time.
7.
That the operative time for these orders is the fourth business day after the day in which a sealed copy of these Orders is served on Super Fund 1 (“the Trustee”).
8.
That the Trustee of the fund shall do all such acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the Trustee can calculate the entitlement of, and make payment to, the wife (non-member spouse) in accordance with order 5 herein.
9.
That the wife (non-member spouse) request the Trustee of the fund to create a new interest in or rollover or transfer the transferrable benefits out of Mr Barone’s superannuation interest into a fund of her choosing in accordance with the requirements of the relevant Trust Deed.
10.
That pursuant to Regulation 14G of the Family Law (Superannuation) Regulations 2001, any payment from Mr Barone’s superannuation interest made after the Trustee has rolled over or transferred the transferable benefits to a fund of the wife’s choosing are not splittable payments.
11.
That the wife otherwise retain to the exclusion of the husband:
(a) The Property A property or the funds received by the Wife pursuant to Order 3(c) herein;
(b) The business 1;
(c) The funds standing to her credit in the bank accounts held in her sole name or in which she has an interest;
(d) Her Motor Vehicle K registration number; and
(e) Her superannuation entitlements including those held with Super Fund 2 and the superannuation split to her from the husband.
12.
That the husband otherwise retain to the exclusion of the wife;
(a) The payment made to him pursuant to Order 1 or Order 3(c) herein;
(b) The business 2;
(c) The funds standing to his credit in the bank accounts held in his sole name or in which he has an interest;
(d) His Motor Vehicle L registration number; and
(e) His superannuation entitlements including those held with Super Fund 1 after the superannuation split to the wife.
13.
That unless otherwise specified in these Orders and save and for the purposes of enforcing any monies due under these or any subsequent Orders:
(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b) Monies standing to the credit of the parties in any joint bank account are to be equally divided;
(c) Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d) Insurance policies remain the sole property of the owner name thereon;
(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed;
(g) Each party be solely liable and indemnify the other in respect of their individual debts.
14.
The parties execute all documents necessary to give proper effect to these Orders and in the event that either party fails and/or neglects to sign any document and/or consent to give effect to these Orders, then a Registrar of the Federal Circuit Court of Australia be appointed pursuant to s.106A of the Family Law Act 1975 to execute the document or documents in the name of the party who has failed to comply with the Orders and do all acts and things necessary to give validity and operation to the particular to which the documents relate. The party seeking execution of the documents shall be at liberty to make an ex parte Application to the Registrar.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.