FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUBER & OVESEN (No.3) | [2019] FCCA 1169 |
| Catchwords: FAMILY LAW – Property – dispute as to date of commencement of cohabitation – issues with the ability to ascertain values of items in the property pool – delay in obtaining value of self-managed superannuation and involvement of the Australian Taxation Office as to penalties – compliance issues with the wife’s self-managed superannuation fund – credit – failure to call husband’s accountant – non-disclosure issues – valuation of property and superannuation pools – just and equitable orders. |
| Legislation: Family Law Act 1975, ss.4AA, 75, 79 & 81 |
| Cases cited: Stanford v Stanford [2012] HCA 52 Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 |
| Applicant: | MR HUBER |
| Respondent: | MS OVESEN |
| File Number: | SYC 4336 of 2012 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 29 & 30 October 2015, 2 & 3 May 2016, 23 June 2016, 29 March 2018, 22 May 2018, 6 June 2018, 7 September 2018, 21 September 2018 and 4 February 2019. |
| Date of Last Submission: | 4 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cohen |
| Counsel for the Respondent: | Mr Friedlander |
THE COURT ORDERS THAT:
The parties do all things and sign all documents and authorities reasonably necessary for the monies held in a controlled monies account with Bank FF being account number 1 (“the controlled monies account”) to be disbursed as follows:
(a)81.7% to the husband; and
(b)18.3% to the wife.
The parties do all things and sign all documents and authorities reasonably necessary to cause the funds in the Ms Ovesen Superannuation Fund (“the Ms Ovesen fund”), to be disbursed as follows:
(a)$850.00 plus GST to Mr D in respect of his audit fees to effect the winding up of…
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- AGLC
- Huber and Ovesen (No.3) [2019] FCCA 1169
- Case
- [2019] FCCA 1169
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific percentages and amounts to be allocated to each party from various financial assets, including a controlled monies account, the wife's superannuation fund, and the husband's superannuation fund. Further issues included the appointment of a registrar to execute documents in the event of a party's default, the ownership of specific assets to the exclusion of the other party, and the procedure for dealing with costs and outstanding applications. The orders also stipulated the binding effect of certain provisions on the trustee of a superannuation fund and the operative time for a superannuation split.
The court's reasoning, as reflected in the orders, involved a detailed division of the parties' financial resources. This included specific percentages for the controlled monies account, fixed amounts for professional fees related to superannuation wind-up, and a rollover of the remaining balance of the wife's superannuation fund to an industry fund at her election. A significant portion of the wife's member balance in the industry fund was allocated to the husband, with provisions for future splittable payments to be made to the husband's superannuation fund. The orders also declared specific assets as the exclusive property of each party, such as the husband's interest in his superannuation fund and all assets in his possession, and the wife's ownership of a property, shareholdings, and all assets in her possession.
By consent, the parties were ordered to facilitate the transfer of a motor vehicle to their daughter and to divide certain shareholdings equally. In the event the husband received a settlement sum from separate proceedings, it was to be divided between the parties, with the wife permitted to provide a copy of the order to the relevant banks. A registrar was appointed to execute documents in case of default by either party within 14 days of the obligation arising, with the defaulting party to pay costs on an indemnity basis. Costs were reserved pending determination or assessment, with a written application process outlined for seeking costs within 28 days. All outstanding applications were dismissed, and the matter was removed from the active pending cases list, subject to the orders regarding costs.
Orders
Orders of the court
1.
The parties do all things and sign all documents and authorities reasonably necessary for the monies held in a controlled monies account with Bank FF being account number 1 (“the controlled monies account”) to be disbursed as follows:
(a) 81.7% to the husband; and
(b) 18.3% to the wife.
2.
The parties do all things and sign all documents and authorities reasonably necessary to cause the funds in the Ms Ovesen Superannuation Fund (“the Ms Ovesen fund”), to be disbursed as follows:
(a) $850.00 plus GST to Mr D in respect of his audit fees to effect the winding up of the Ms Ovesen fund;
(b) $2,500.00 plus GST to Mr B in respect of his accountancy fees to effect the winding up of the Ms Ovesen fund; and
(c) The balance then remaining to be rolled over into an industry fund, being the Y Super Fund (“the Fund”), at the wife’s election.
3.
Paragraphs 4-8 (inclusive) of these orders are binding on the trustee of the Fund.
4.
The base amount of $146,632.81 (or 52% whichever is the greater) of the wife’s member balance of the Fund be then allocated to the husband out of the wife’s interest in the Fund and the parties do all such acts and things and execute all such documents as may be reasonably necessary to facilitate and implement that.
5.
Pursuant to s.90XT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment becomes payable in respect of the wife’s interest in the Fund, the husband shall be entitled to receive by payment to the Mr Huber Superannuation Fund (“the Mr Huber fund”) 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 to the entitlement the wife would have had in the Fund but for these orders.
6.
Order 5 has effect from the operative time.
7.
The operative time for the purposes of order 6 above, is 4 business days after the date of service of these orders upon the trustee of the Fund.
8.
Until such time as the superannuation split to the husband, pursuant to these orders is effected then:
(a) The wife direct and authorise the trustee of the Fund to communicate with the husband and/or any person authorised by him in writing:
(i) To answer any reasonable enquiries as may be made by him or on his behalf from time to time in relation to his entitlement in the Fund; and
(ii) To provide to the husband and/or his authorised representative with a copy of any notice of any application or request by the wife which seeks the release of entitlements in the Fund insofar as that release may affect the husband’s entitlement in the Fund pursuant to these orders.
(b) The wife by herself, her servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the husband, his heirs, executors, administrators or nominees from receiving the benefits in the Fund to which he is entitled pursuant to these orders.
9.
To the extent that if the husband is recorded as a trustee of the Ms Ovesen fund or the wife is recorded as a trustee of the Mr Huber fund, the parties will each do all things reasonably necessary and sign all documents reasonably required to effect a resignation as trustee in terms of the other parties fund and the appointment of some other person nominated by the other party to be a joint trustee with him or her, if so required.
10.
By consent, that the parties do all things necessary and sign all documents to transfer a Motor Vehicle N to the parties’ daughter, Ms A Ovesen.
11.
The parties forthwith do all things reasonably necessary to cause one half of any M Ltd (“M Ltd”) shareholdings held in the I Bank (“I Bank”) Account No. 2, in the name of the husband and the wife to be transferred to each of the husband and the wife either by the creation of separate accounts with I Bank in the name of each of the husband and the wife or as, otherwise, directed by the parties in writing.
12.
In the event the husband receives any monies (“the settlement sum”) by way of settlement or judgment in the proceedings between O Pty Ltd and the husband as plaintiffs and the H Bank (“H Bank”) and I Bank as defendants in the Court G (proceedings number …), then the husband shall forthwith notify in writing the wife of the settlement sum and that sum (after taking into account the payment of any reasonable costs and disbursements as incurred by the husband in those proceedings), shall be divided 65% to the husband and 35% to the wife. The wife be permitted to provide a copy of this order to the legal representatives of the H Bank and I Bank in the said Court G proceedings.
13.
The husband be declared the owner of the following, to the exclusion of the wife:
(a) His interest in the Mr Huber fund; and
(b) All other assets including bank accounts, vehicles, art works, furnishings and household contents in his possession.
14.
The wife be declared the owner of the following, to the exclusion of the husband:
(a) The property at Street P, Town Q NSW;
(b) Her shareholding in Z Pty Ltd;
(c) Her shareholding in R Pty Ltd;
(d) Her interest in S Pty Ltd;
(e) Her interest in the Ovesen Unit Trust;
(f) Her shareholding in T Pty Ltd; and
(g) All other assets including bank accounts, vehicles, sports equipment, jewellery, art works, furnishings and household contents in her possession.
15.
By consent, in default of either party doing all acts and things and executing all documents to give effect to these orders within 14 days of the date on which the obligation to do so is set under these orders and on the Registrar being satisfied of such failure or neglect or default by way of Affidavit evidence only, a Registrar of this Court is appointed pursuant to s106A of the Family Law Act 1975 (Cth) to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders and the party in default shall pay to the other party to such application that partys costs and disbursements on an indemnity basis.
16.
The parties costs (including any earlier reserved costs) be reserved pending determination/assessment.
17.
If any party seeks costs, an appropriate written application may be made within 28 days of today’s date, (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.
18.
All outstanding applications be, otherwise, dismissed.
19.
Subject to orders 16 & 17 above, the matter is, otherwise, removed from the active pending cases list.
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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