FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HADLEY & POCK (No.2) | [2011] FMCAfam 193 |
| FAMILY LAW – Property – identification of asset pool – the “Elias principle” – debt to Centrelink – failure to lodge tax return – legal costs – debt to Victoria Legal Aid – evaluation of contributions – wife’s borderline personality disorder – section 75(2) factors – just and equitable. |
| Family Law Act 1975 (Cth), ss.75, 79, 81, 90MC, 90MT Child Support (Assessment) Act 1989 (Cth) Federal Magistrates Act 1999 (Cth), Pt 6, Div 5 Federal Magistrates Court Rules 2001 (Cth), r.21.02(1)(b) |
| Bigelow & Reuter [2006] FamCA 1455 Re NHC and RCH (2004) FLC 93-204 Clauson and Clauson (1995) FLC 92-595 Clives and Clives (2008) FLC 93-385 C v C (2005) FLC 93-220 Elias v Elias (1977) FLC 90-267 Ferraro and Ferraro (1993) FLC 92-335 Hayne and Hayne (1977) FLC 90-265 Hickey (2003) FLC 93-143 Jordan & Jordan (1997) FLC 92-736 Lee Steere and Lee Steere (1985) FLC 91-626 OSF and OJK (2004) FLC 93-191 Parshen & Parshen (1996) FLC 92-720 Russell v Russell (1999) FLC 92-877 |
| Applicant: | MR HADLEY |
| Respondent: | MS POCK |
| File Number: | MLC 3517 of 2009 |
| Judgment of: | Roberts FM |
| Hearing dates: | 13 & 14 September 2010 |
| Date of Last Submission: | 14 September 2010 |
| Delivered at: | Launceston |
| Delivered on: | 29 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr James |
| Solicitors for the Applicant: | Plaza Legal |
| Solicitors for the Respondent: | Not represented |
ORDERS
That within six months of this Order MR HADLEY (“the husband”) must pay to MS POCK also known as MS HADLEY (“the wife”) the sum of fifty thousand dollars ($50,000) (“the payment”).
That in consideration of, and contemporaneous with the payment, the wife must do all acts and execute all documents submitted by the husband to transfer to the husband any interest the wife may have in the property situate and known as Property K in Victoria (“the property”).
That for the purpose of the transfer of the property as provided for in Order No. 2:
(a)the husband must obtain a discharge of any liability of the wife pursuant to any mortgage secured over the title to the property; and
(b)the wife must at her expense register a withdrawal of any caveat registered against the title to the property by Victoria Legal Aid in relation to legal costs incurred by her.
That contemporaneous with the payment the wife must do all acts and execute all documents submitted by the husband to transfer to the husband all her interest (if any) in [O] life insurance policy No. [omitted].
That the husband must pay and indemnify the wife from payment of any loan from his parents.
That having been accorded procedural fairness, the following Orders with respect to the husband’s superannuation and the splitting of such superannuation are binding upon the Trustees of the husband’s superannuation fund, namely [C] Super (Member no. [omitted]) (“the Fund”).
That there be a superannuation splitting order in accordance with section 90MT of the Family Law Act 1975 (Cth) with respect…
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- AGLC
- Hadley and POCK (No.2) [2011] FMCAfam 193
- Case
- [2011] FMCAfam 193
- Decision Date
CaseChat Overview and Summary
The legal issues the court was required to decide included the division of the parties' property, the allocation of superannuation, and the enforcement of personal item transfers and tax obligations. The court considered the financial circumstances of the parties, their contributions to the marriage, and the relevant legal principles governing property settlements and superannuation splitting.
The court reasoned that the husband's financial position allowed him to make the ordered payment to the wife and transfer his interest in the property and life insurance policy. The court also found that the wife was entitled to a share of the husband's superannuation fund, with a base amount of $10,000. The court further determined that the husband must indemnify the wife from a loan from his parents and provide her with certain personal items within a specified timeframe. Additionally, the court mandated that both parties file income tax returns for the relevant year.
The court made specific orders for the husband to pay the wife $50,000 within six months, transfer his interest in a property and a life insurance policy, and provide personal items within 60 days. The court also ordered a superannuation splitting arrangement, with a base amount of $10,000. The husband was required to indemnify the wife from a loan from his parents and provide family photographs and a motor vehicle. Both parties were required to file income tax returns for the year ended 30 June 2005. The court also extinguished any claims to superannuation benefits, severed joint tenancies, and allocated personal property and insurance policies to the respective parties.
Orders
Orders of the court
1.
That within six months of this Order MR HADLEY (“the husband”) must pay to MS POCK also known as MS HADLEY (“the wife”) the sum of fifty thousand dollars ($50,000) (“the payment”).
2.
That in consideration of, and contemporaneous with the payment, the wife must do all acts and execute all documents submitted by the husband to transfer to the husband any interest the wife may have in the property situate and known as Property K in Victoria (“the property”).
3.
That for the purpose of the transfer of the property as provided for in Order No. 2:
(a) the husband must obtain a discharge of any liability of the wife pursuant to any mortgage secured over the title to the property; and
(b) the wife must at her expense register a withdrawal of any caveat registered against the title to the property by Victoria Legal Aid in relation to legal costs incurred by her.
4.
That contemporaneous with the payment the wife must do all acts and execute all documents submitted by the husband to transfer to the husband all her interest (if any) in [O] life insurance policy No. [omitted].
5.
That the husband must pay and indemnify the wife from payment of any loan from his parents.
6.
That having been accorded procedural fairness, the following Orders with respect to the husband’s superannuation and the splitting of such superannuation are binding upon the Trustees of the husband’s superannuation fund, namely [C] Super (Member no. [omitted]) (“the Fund”).
7.
That there be a superannuation splitting order in accordance with section 90MT of the Family Law Act 1975 (Cth) with respect to the husband’s superannuation with the Fund in favour of the wife.
8.
That the base amount allocated to the wife from the husband’s interest in the Fund is ten thousand dollars ($10,000) (“the base amount”).
9.
That in accordance with section 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment within the meaning of section 90MT of the Act becomes payable to or on behalf of the husband from his interest in the Fund, the wife is entitled to be paid (into a superannuation account nominated by her) by the Trustee of the Fund, the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement that the husband would have had but for these Orders.
10.
That these Orders in relation to the husband’s superannuation interest in the Fund have effect from the operative time.
11.
That the operative time for the purpose of these Orders for the said splittable payment is four days after service of a sealed copy of these Orders on the Trustee of the Fund.
12.
That within 14 days of becoming entitled to receive a superannuation benefit from the Fund, the husband will give the Trustee of the Fund:
(a) all such forms as necessary to enable it to determine the nature and quantum of the husband’s superannuation entitlement; and
(b) any other related information it may reasonably require.
13.
That there be liberty to each party and to the Trustee of the Fund to apply regarding the implementation of these orders affecting the interests of the husband and wife in the Fund.
14.
That the husband must make reasonable efforts to locate the wife’s mother’s engagement ring, a mirror from her sister, a childhood Bible Story book, a quilt from the wife’s grandmother, a camphor chest, a crystal cake stand and any remaining [omitted] equipment and provide such of those items that he can locate to the wife within 60 days of this Order.
15.
That within 60 days of this Order the husband is to provide to the wife the originals of all family photographs that he is able to locate and the husband is at liberty to take scanned electronic copies of those that he wished to retain.
16.
That within 60 days of this Order the husband is to transfer to the wife all his right title and interest in a Toyota Camry motor vehicle formerly used by them jointly and registered [omitted].
17.
That in the event that they have not already done so, the husband and the wife must each lodge an income tax return for the year ended
30 June 2005 with the Australian Taxation Office without delay, and for such purpose each is to provide the other with any information necessary to complete such an income tax return.
18.
That unless specified in these Orders:
(a) each party is solely entitled to the exclusion of the other to all other property in possession of that party as at the date of these Orders;
(b) any claim that either party may have to any superannuation benefit belonging to or earned by the other is extinguished;
(c) all insurance policies become the sole property of the person in whose name the policy stands as owner;
(d) each party will be solely liable for and must indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
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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