FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOOD & HOOD | [2015] FCCA 1206 |
| Catchwords: FAMILY LAW – Property – lengthy marriage – two children – similar contributions but for significant assets obtained by wife through legacy –similar needs – case re-opened – wastage by wife – adjustment to outcome. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 79 |
| Carter & Carter (1981) FLC 91-061 Jewel v Jewel [2013] FCWA 81 |
| Applicant: | MS HOOD |
| Respondent: | MR HOOD |
| File Number: | MLC 3666 of 2013 |
| Judgment of: | Judge Curtain |
| Hearing dates: | 11 April 2014, 15 August 2014, 1 December 2015, |
| Date of Last Submission: | 1 April 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 20 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Mr Hamilton as solicitor advocate |
| Solicitors for the Respondent: | Thexton Lawyers |
ORDERS
THE COURT ORDERS THAT:
The husband pay to the wife the sum of three hundred and four thousand and twenty eight dollars ($304,028) (“the payment”) (being $317,500 less $13,472) within 90 days from the date of this order (“the date”).
That from the $13,472 sum the husband shall forthwith pay:
(a)the rental arrears and costs $2,175.60
(b)the repair costs; $1,810
(c)the cleaning, rubbish removal and lawn mowing costs;
and
$3,407
(d)the legal costs to Thexton Lawyers. $6,080
$13,472.60
Contemporaneously with the payment:
(a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right, title and interest in the real property situate at and known as Property M, in the State of Victoria (“the real property”); and
(b)the husband indemnify the wife against all payments and liability for all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
In the event that the whole of the payment has not been made by the date the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)first, to pay all costs, commissions and expenses of the sale;
(b)secondly, so much of the payment as is then outstanding together with interest thereon at the rate of ten (10) per centum per annum adjusted monthly from the date to the wife; and
(c)thirdly, the balance to the husband.
Pending the payment or completion of the sale:
(a)the husband have the sole right to occupy the real property and during such right of occupation the husband pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)neither party encumber…
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- Case
- [2015] FCCA 1206
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific entitlements of each party to the matrimonial assets and liabilities. Key issues included the valuation and division of the real property, the allocation of motor vehicles and shares, the division of superannuation interests, and the responsibility for outstanding debts and legal costs. The court also had to address the collection of personal chattels and the ongoing occupation and maintenance of the former matrimonial home.
The court's reasoning, largely based on consent orders, involved a detailed allocation of assets and liabilities. The husband was ordered to pay a significant sum to the wife, with provisions for the transfer of real property and indemnities for rates and taxes. The court also made specific orders regarding the sale of certain vehicles to cover a union bill, with any surplus or shortfall to be shared equally. Crucially, detailed orders were made concerning the husband's superannuation interest, including a specific amount to be allocated to the wife and provisions for its payment and protection, binding the superannuation trustee.
The final orders provided for the husband to pay a specified sum to the wife within 90 days, with provisions for the transfer of real property and the sale of the property if payment was not made. The orders also detailed the division of other assets, including vehicles, shares, and superannuation, and allocated responsibility for various debts and legal costs. All extant applications were dismissed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1.
The husband pay to the wife the sum of three hundred and four thousand and twenty eight dollars ($304,028) (“the payment”) (being $317,500 less $13,472) within 90 days from the date of this order (“the date”).
2.
That from the $13,472 sum the husband shall forthwith pay:
(a) the rental arrears and costs $2,175.60
(b) the repair costs; $1,810
(c) the cleaning, rubbish removal and lawn mowing costs;
and
$3,407
(d) the legal costs to Thexton Lawyers. $6,080
$13,472.60
3.
Contemporaneously with the payment:
(a) the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right, title and interest in the real property situate at and known as Property M, in the State of Victoria (“the real property”); and
(b) the husband indemnify the wife against all payments and liability for all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
4.
In the event that the whole of the payment has not been made by the date the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a) first, to pay all costs, commissions and expenses of the sale;
(b) secondly, so much of the payment as is then outstanding together with interest thereon at the rate of ten (10) per centum per annum adjusted monthly from the date to the wife; and
(c) thirdly, the balance to the husband.
5.
Pending the payment or completion of the sale:
(a) the husband have the sole right to occupy the real property and during such right of occupation the husband pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b) the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c) neither party encumber the real property without the consent in writing of the other party save to enable the husband to borrow funds to comply with order 1 above.
6.
The husband do all necessary acts and things to enable the wife or her agent to collect the following chattels within fourteen (14) days at an agreed date and time, from the former matrimonial home:
(a) three (3) silver teapots;
(b) the contents of their daughter’s bedroom, money boxes, toys and teddies;
(c) “nan’s” wooden chair; and
(d) X’s bicycle;
and if the husband locates them:
(e) the blue and white tea set, yellow tea set and antique plates;
(f) a small wooden chest and large wooden tea chest (engraved);
(g) record albums; and
(h) the wife’s family’s framed photographs previously hung on a wall in the home,
and all of the above chattels shall remain the property of the wife.
7.
The husband have the sole right, title and interest in:
(a) the (omitted) shares in his name;
(b) the Toyota Hilux motor vehicle; and
(c) his superannuation interest in (omitted) subject to Order 10 and others below.
8.
The wife have the sole right, title and interest in:
(a) The (vehicle omitted) motor vehicle;
(b) the real property, improvements and contents of the property situate and known as Property S, in the State of Victoria; and
(c) her superannuation interest in the (omitted) Super Scheme and (omitted) Superannuation Plan.
9.
The parties sign all necessary documents and do all things necessary to sell the Ford (omitted) and the Ford (omitted) motor vehicles and after costs of the sales, the funds then be used to pay the $875 (omitted) Union bill and any balance then remaining be divided equally between the parties and if the net sale funds are inadequate to pay the said bill in full, any shortfall shall be paid equally by the parties.
THE COURT ORDERS BY CONSENT THAT:
10.
The base amount allocated to Ms Hood out of interest held by Mr Hood in the (omitted) superannuation member number (omitted) be forty five thousand, four hundred and twenty four dollars ($45,424).
11.
In accordance with section 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), whenever the Trustee of (omitted) makes a splittable payment to Mr Hood from his interest in (omitted), Ms Hood be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law Superannuation Regulations 2001 (Cth), and there be a corresponding reduction in the entitlement of Mr Hood would have had but for these orders.
12.
Orders 10 and 11 above has the effect from the operative time which is four (4) business days from the date the orders are served on the Trustee of (omitted) and the Trustee have liberty to apply.
13.
Until the happening of any of:
(a) the establishment of a separate account in the name of Ms Hood in (omitted); or
(b) the transfer or “rolling over” into another superannuation fund of the payment split created by orders 10 and 11 above; or
(c) Ms Hood satisfies a condition of release or is paid the payment split created by orders 10 and 11 above; or
(d) Ms Hood executing a waiver of rights within the meaning of s.90M(2)(A) of the Act in relation to the payment split created by orders 10 and 11 above, and
until such time Mr Hood be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in (omitted) a “non splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 (Cth).
14.
This order binds the Trustee of (omitted).
15.
The solicitor for the husband serve a sealed copy of this order on the Trustee of (omitted) and liberty to apply be reserved to the parties and trustee to seek to vary the machinery provision of these superannuation orders (if necessary).
THE COURT FURTHER ORDERS THAT:
16.
The husband be liable for and indemnify the wife against all payments in respect of the alleged debt of four thousand dollars ($4,000) owed to Mr R.
17.
Unless otherwise specified in these orders and save 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 (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the husband);
(b) 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; and
(c) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
18.
All extant applications be otherwise dismissed.
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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