Gully and Aksoy - [2017] FCCA 118

FEDERAL CIRCUIT COURT OF AUSTRALIA

GULLY & AKSOY

[2017] FCCA 118

Catchwords:
FAMILY LAW – Property – contributions – assessment of contributions in long marriage where husband suffered injury post separation and received payout equating to 60% of the current matrimonial pool – adjustment to wife and husband having regard to the relevant 75(2) factors being wife’s care of a disabled child and husband’s incapacity to work.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 75(2)(o)

Cases cited:

Ferraro v Ferraro (1993) FLC 92-335

Fields v Smith (2015) FLC 93-638

Pierce v Pierce (1998) FamCA 74

Applicant:

MS GULLY

Respondent:

MR AKSOY

File Number:

SYC 6249 of 2013

Judgment of:

Judge Henderson

Hearing dates:

27 and 28 July 2016

Date of Last Submission:

20 October 2016

Delivered at:

Sydney

Delivered on:

30 January 2017

REPRESENTATION

Counsel for the Applicant:

Mr Givney

Solicitors for the Applicant:

Burt & Allen Lawyers

Counsel for the Respondent:

Mr Schonell SC

Solicitors for the Respondent:

Pritchard Law Group

ORDERS

That within 56 days of the date of these orders the husband via his financial manager Ms N cause the current mortgages secured over the former matrimonial home including the Property B overdraft to be discharged and pay (omitted financial service) the sum of $6,600 from the funds held in his superannuation fund together with the tax payable as a consequence of the draw down.
Within 14 days thereafter the wife to sign all documents necessary to transfer to the husband all her right title and interest in the former matrimonial home situate and known as Property A being all the land in certificate of title volume (omitted) and the (omitted) car.
Simultaneously with the wife’s compliance with order 2 the husband to effect a super splitting order to allocate to the wife the sum of $1,142,122 in his (omitted) Superannuation Fund.
That subject to and upon compliance with orders 2 and 3 herein Mr Aksoy and his Financial manager and (omitted) Superannuation Limited (“Trustee”), do all necessary acts and things, sign all documents and give all consents necessary to give force and effect to the Orders hereunder.
(a)Order that paragraph 4 (b) to (g) of these Orders are binding on the Trustee of the Fund.
(b)That the amount allocated to the Wife in these proceedings out of the interest of the Husband in these proceedings in the Husbands Superannuation Fund held with (omitted) (“the Fund”) is $736,000.
(c)That pursuant to s.90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the interest of the Husband in the Fund the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount and that there be a corresponding reduction in the entitlement of the Husband to whom the splittable payment would have become payable but for these Orders.
(d)That Order 9d) has effect from the operative time.
(e)The operative time for the purpose…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gully and Aksoy

Details

AGLC: Gully and Aksoy [2017] FCCA 118
Case: [2017] FCCA 118
Decision Date: 30 January 2017

CaseChat Overview and Summary

In *Gully and Aksoy*, heard by Judge Henderson, the dispute concerned the division of property between a husband and wife. The orders made by the court addressed the discharge of mortgages on the former matrimonial home, the transfer of interests in that home and a vehicle, and the allocation of superannuation funds.

The court was required to determine how the parties' various assets, including real estate, vehicles, and superannuation, should be divided. Specifically, the orders dealt with the practical steps necessary to effectuate a property settlement, including the discharge of financial encumbrances and the transfer of legal and beneficial ownership of specified assets.

The court's reasoning, as reflected in the orders, involved a structured approach to asset division. The husband was directed to discharge existing mortgages on the former matrimonial home and pay a specific sum from his superannuation fund, including associated tax. Subsequently, the wife was to transfer her interest in the home and a vehicle to the husband. Concurrently, the husband was to arrange for a superannuation splitting order to allocate a significant sum to the wife from his superannuation fund, with provisions made for the trustee of the fund to be bound by these orders. The court also declared the husband the sole legal and beneficial owner of other specified assets, including his bank accounts and the contents of the home, while generally providing that each party would retain ownership of property in their respective possession or control, subject to the specific orders made.

Orders

Orders of the court

That within 56 days of the date of these orders the husband via his financial manager Ms N cause the current mortgages secured over the former matrimonial home including the Property B overdraft to be discharged and pay (omitted financial service) the sum of $6,600 from the funds held in his superannuation fund together with the tax payable as a consequence of the draw down.

Within 14 days thereafter the wife to sign all documents necessary to transfer to the husband all her right title and interest in the former matrimonial home situate and known as Property A being all the land in certificate of title volume (omitted) and the (omitted) car.

Simultaneously with the wife’s compliance with order 2 the husband to effect a super splitting order to allocate to the wife the sum of $1,142,122 in his (omitted) Superannuation Fund.

That subject to and upon compliance with orders 2 and 3 herein Mr Aksoy and his Financial manager and (omitted) Superannuation Limited (“Trustee”), do all necessary acts and things, sign all documents and give all consents necessary to give force and effect to the Orders hereunder.

(a) Order that paragraph 4 (b) to (g) of these Orders are binding on the Trustee of the Fund.

(b) That the amount allocated to the Wife in these proceedings out of the interest of the Husband in these proceedings in the Husbands Superannuation Fund held with (omitted) (“the Fund”) is $736,000.

(c) That pursuant to s.90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the interest of the Husband in the Fund the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount and that there be a corresponding reduction in the entitlement of the Husband to whom the splittable payment would have become payable but for these Orders.

(d) That Order 9d) has effect from the operative time.

(e) The operative time for the purpose of Order 4 (d) of these Orders is fourteen (14) days from the date of service of these Orders upon the Trustee of the Fund.

(f) The Husband shall, within fourteen (14) days of becoming entitled to receive superannuation benefits from the Fund, provide to the Fund all such forms as shall be necessary to enable it to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require.

(g) That there be liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

(h) The husband may at his election reduce the splittable payment to the wife by making a cash payment in addition to a super splitting order in order to comply with order 3 herein.

That the Husband be declared, as against the Wife, the sole legal and beneficial owner of such interest as the Husband has in motor vehicle 2009 (car model omitted), (car model omitted), (omitted) motorbike, (omitted) motorbike and (omitted) Boat all his bank accounts, the Fund and the contents of the Home.

Except as otherwise provided in this Order, each party is entitled to be the sole legal and beneficial owner of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.

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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