Guntupalli and Parthasarathi

Case [2014] FamCA 86

FAMILY COURT OF AUSTRALIA

GUNTUPALLI & PARTHASARATHI [2014] FamCA 86
FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Long marriage – Where there are three children of the marriage – Where the wife made a greater financial contribution – Where the husband made significant non-financial contributions – Where the husband is 67 years of age and is suffering from the effects of cancer – Where the wife is 56 years of age and has a greater earning capacity – Superannuation.
Evidence Act 1995 (Cth) s 142(1).
Family Law Act 1975 (Cth) ss 79, 75(2).
Baglio & Baglio [2013] FamCA 105.
Bevan & Bevan [2013] FamCAFC 116.
Harper & Harper [2013] FamCA 528.
Mallet v Mallet (1984) 156 CLR 605.
Stanford & Stanford (2012) 247 CLR 108.
NHC & RCH (2004) 32 Fam LR 518.
Lovine & Connor & Anor (2012) FLC 93-515.
M & M [1998] FamCA 42.
Cerini & Cerini [1998] FamCA 143.
Omacini & Omacini (2005) FLC 93-218.
Kouper & Kouper (No 3) [2009] FamCA 1080.

Steinbrenner & Steinbrenner [2008] FamCAFC 193.
Watson & Ling [2013] FamCA 57.

APPLICANT: Mr Guntupalli
RESPONDENT: Ms Parthasarathi
FILE NUMBER: BRC 743 of 2011
DATE DELIVERED: 21 February 2014
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Hogan J
HEARING DATE: 5 & 6 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carew QC
SOLICITOR FOR THE APPLICANT: Barry Nilsson Lawyers
COUNSEL FOR THE RESPONDENT: Mr Galloway
SOLICITOR FOR THE RESPONDENT: Michael Lynch Family Lawyers

Orders

  1. That within thirty (30) days from the date of orders being made in these terms, the wife shall do all acts and things and execute all documents necessary to transfer to the husband at the expense of the husband the whole of her right, title and interest in the property at B Street, Suburb C in the State of Queensland, more particularly described as Lot … on RP …, County of …, Parish of …, Title Reference … (“the B Street property”).

  2. That within thirty (30) days from the date of these orders, the wife do all acts and things and execute all documents necessary to transfer to the husband at the expense of the husband the whole of her right, title and interest in the property at D Street, Suburb E, in the State of Queensland more particularly described as Lot … on RP …, Ward of …, Parish of …, (“the D Street property”).

  3. That as from the date of these orders, the wife indemnify and keep indemnified the husband with respect to any mortgages secured over the B Street property and/or the D Street property, and, that within thirty (30) days of the date of this order, the wife sign all documents and do all acts and things necessary to refinance the mortgage debts secured over the said properties such that they are secured over property which, as a result of these orders, is to be retained by the wife in the…

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Guntupalli and Parthasarathi [2014] FamCA 86
Case
[2014] FamCA 86
Decision Date

CaseChat Overview and Summary

The case involved a dispute between a husband and wife concerning the division of their property. The orders made by Hogan J of the Family Court of Australia detailed the transfer of various assets and liabilities between the parties.

The court was required to determine how the parties' various real estate holdings, bank accounts, business interests, motor vehicles, and superannuation entitlements were to be divided. Specific issues included the transfer of ownership of properties located at B Street and D Street from the wife to the husband, and the transfer of the property at F Street from the husband to the wife. The court also had to address the refinancing of mortgages and the division of superannuation interests, particularly concerning the P Guntupalli Superannuation Fund.

Hogan J applied principles of property settlement under the *Family Law Act 1975* (Cth). The reasoning involved allocating specific assets and liabilities to each party to achieve a final division. This included ordering the wife to transfer her interests in the B Street and D Street properties to the husband, while the husband was to transfer his interest in the F Street property to the wife. The court also mandated the wife's indemnification of the husband for existing mortgages on the B Street and D Street properties and required refinancing to secure these debts against property retained by the wife. A significant aspect of the decision involved the division of superannuation, with a specific amount allocated from the wife's interest in the P Guntupalli Superannuation Fund to the husband, and provisions for the rollover of the husband's interest in that fund to another fund. The court also included provisions for a Registrar to execute documents in the event of non-compliance by either party.

Orders

Orders of the court

1.

That within thirty (30) days from the date of orders being made in these terms, the wife shall do all acts and things and execute all documents necessary to transfer to the husband at the expense of the husband the whole of her right, title and interest in the property at B Street, Suburb C in the State of Queensland, more particularly described as Lot … on RP …, County of …, Parish of …, Title Reference … (“the B Street property”).

2.

That within thirty (30) days from the date of these orders, the wife do all acts and things and execute all documents necessary to transfer to the husband at the expense of the husband the whole of her right, title and interest in the property at D Street, Suburb E, in the State of Queensland more particularly described as Lot … on RP …, Ward of …, Parish of …, (“the D Street property”).

3.

That as from the date of these orders, the wife indemnify and keep indemnified the husband with respect to any mortgages secured over the B Street property and/or the D Street property, and, that within thirty (30) days of the date of this order, the wife sign all documents and do all acts and things necessary to refinance the mortgage debts secured over the said properties such that they are secured over property which, as a result of these orders, is to be retained by the wife in the wife’s sole name.

4.

That within thirty (30) days of the date of these orders, the husband shall do all acts and things and execute all documents necessary to transfer to the wife at the expense of the wife the whole of his right, title and interest in F Street, Suburb C in the State of Queensland more particularly described as Lot … on RP …, County of …, Parish of …, Title Reference … (“the F Street property”).

5.

That, except as otherwise provided for, the husband is entitled to be the sole legal and beneficial owner of the following:

a) his interest in the property at G Street, Suburb H;

b) funds in the Suncorp bank account no. …00;

c) funds in Suncorp bank account no. …80;

d) funds in Suncorp bank account no. …08;

e) his credit card liability for the Commonwealth Bank Card no. …95;

f) his interest in N Business and its bank accounts, plant and equipment;

g) his Toyota Rav 4 motor vehicle;

h) his shareholdings with Suncorp, AMP and Wesfarmers;

i) furniture, furnishings and effects in his possession;

j) personal effects and jewellery;

k) his superannuation entitlements with Guntupalli Superannuation Fund; and

l) his member entitlements with the P Guntupalli Superannuation Fund (until such time as those entitlements are rolled over into the Guntupalli Superannuation Fund).

6.

That, except as otherwise provided for, the wife is entitled to be the sole legal and beneficial owner of the following:

a) all funds in all bank accounts held in her name;

b) her professional practice and all associated entities;

c) all real property in her possession or ownership not otherwise referred to in these orders, namely I Street, Suburb J, K Street, Suburb L and M Street, Suburb A;

d) all mortgages in her name, including but not limited to the following mortgages:

(i) mortgage #...500;

(ii) mortgage #...404;

(iii) mortgage #...909; and

(iv) mortgage #...400;

e) furniture, furnishings and effects in her possession; and

f) the Toyota Prado, registration …;

g) the wife’s personal effects and jewellery; and

h) any shareholdings in the wife’s name.

7.

That, pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) the amount of $554,575.79 is allocated as the base amount to be deducted from the interest of the wife in the P Guntupalli Superannuation Fund (“the superannuation fund”) and the wife, a member of the superannuation fund and the husband and the wife, the trustees of the superannuation fund, do all acts and things and sign all documents and give all consents so that whenever a splittable payment becomes payable out of the interest of the wife in the superannuation fund the husband is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement of the wife to whom the splittable payment would have been made but for these orders.

8.

The husband and the wife, as trustees of the P Guntupalli Superannuation Fund, shall do all acts and things and sign all such documents as may be necessary to pay to the husband the entitlement occurring as a consequence of paragraph 7 of this Order whenever the trustees make a splittable payment out of the wife’s interest in the P Guntupalli Superannuation Fund.

9.

That paragraph 7 of this Order have effect from the operative time and the operative time for this Order is the date of this Order.

10.

In the event that either party refuses or neglects to do any act or sign any document required to be done or executed in compliance with the provisions of these Orders, then, pursuant to s106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the said Order and the affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of such non-compliance.

11.

In the event that they have not already done so, forthwith upon the making of this Order the husband and the wife shall each do all acts and things and sign all documents required to rollover the husband’s entire interest in the P Guntupalli Superannuation Fund, as at 30 June 2013, into the Guntupalli Superannuation Fund, including, but not limited to, signing all and any withdrawal documents required by any bank to effect a rollover of those funds.

12.

Forthwith upon the rollover of the husband’s entire interest in the P Guntupalli Superannuation Fund into the Guntupalli Superannuation Fund pursuant to paragraph 11 of this Order, the husband shall do all acts and things and sign all documents required to resign as trustee of the P Guntupalli Superannuation Fund. The P Guntupalli Superannuation Fund shall bear the cost of the preparation of any documents involved in his resignation as trustee from the P Guntupalli Superannuation Fund.

13.

Within thirty (30) days of the date of this Order, the wife must do all acts and things and sign all documents required to transfer any tenancies associated with the B Street and D Street properties into the sole name of the husband such that the husband becomes the sole lessor of those properties and receives all rental income associated with such properties.

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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