FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Janner & Janner [2025] FedCFamC2F 297
File number(s): DGC 1118 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 February 2025 Catchwords: FAMILY LAW – Property – final hearing – whether parties reaches agreement many years prior to issue of proceedings – parties SMSF not divided at separation – non superannuation assets divided at separation – found no agreement as alleged – parties remained joint trustees and joint co-borrowers of mortgage debt secured over assets held for SMSF – just and equitable to make property orders – all assets to be taken into account in determining percentage superannuation payment split order – parties to confer and take advise as to form of percentage superannuation splitting orders. Legislation: Family Law Act 1975 (Cth) ss 75, 79 & 90XT Cases cited: Bevan & Bevan [2013] FamCAFC 116
DW & GT [2005] FamCA 161
Farnham & Farnham [2022] FedCFamC2F 83
Fox v Percy (2003) 214 CLR 118
Hickey and Hickey and the AG for the C’lth of Australia (2003) FLC 93-143
Horrigan & Jennings [2018] FamCAFC 206
Keskin & Keskin and Anor (2019) FLC 93-932
Stanford v Stanford [2012] HCA 52
Woodcock & Woodcock (1997) FLC 92-739
Trask & Westlake [2015] FamCAFC 160
Division: Division 2 Family Law Number of paragraphs: 85 Date of hearing: 19 February 2025 Place: Melbourne Counsel for the Applicant: Mr Kaufmann Solicitor for the Applicant: Guthrie & Associates Counsel for the Respondent: Mr Gray Solicitor for the Respondent: Lawyers by the Bay ORDERS
DGC 1118 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JANNER
Applicant
AND: MR JANNER
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The parties each retain all assets and liabilities in their sole names, including any superannuation other than that in the Janner Superannuation Fund (‘the Fund’).
2.The parties, by their lawyers, do all acts and things to:
(a)Confer as to the form of the section 90XT(b) order or orders necessary to give effect to these orders, including the sale of the property known as B Street, Suburb C, in the State of Victoria (‘the Suburb C property’) and minimise, but not avoid, legal taxation obligations; and
(b)Obtain any expert taxation or accounting advice as to the necessary form of the orders; and
(c)On or before 4.00 pm on 13 March 2025, the parties file and serve a joint minute of the order to bring about a superfund payment split and division of the benefit of the Fund between the parties to occur on 30 June 2025, to the following effect:
(i)That there be a percentage superannuation payment split, or splits, from the Husband’s interest in the Fund to the Wife to the effect that the Wife’s superannuation entitlements to be rolled out from the Fund is X per centum in accordance with the following formula:
X% = [(A + $1,383,661) × 53.8%] - $826,461
A
Where:
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- Janner & Janner [2025] FedCFamC2F 297
- Case
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CaseChat Overview and Summary
The Court examined the evidence presented and found that there was no agreement as alleged by the parties. The evidence indicated that the parties remained joint trustees and joint co-borrowers of the mortgage debt secured over the assets held for the SMSF. Given this, the Court considered it just and equitable to make property orders that took all assets into account, including the superannuation fund, in determining the percentage superannuation payment split order. The Court emphasised the importance of the parties conferring and seeking expert advice to formulate the necessary orders for the division of the superannuation fund.
In its orders, the Court mandated that each party retain all assets and liabilities in their sole names, excluding the superannuation in the Janner Superannuation Fund. The parties were directed to confer and seek expert advice to decide on the form of section 90XT(b) orders necessary to effect the division, including the sale of a specified property and the minimisation of legal and taxation obligations. The Court also prescribed a specific formula for calculating the superannuation percentage split to ensure an equitable distribution, taking into account the value of the parties’ assets and liabilities. If there was a dispute over the form of the orders, the parties were instructed to present their respective proposals and written submissions.
The final orders of the Court provide for a detailed plan to divide the superannuation fund, with specific timelines and obligations for the parties. This includes the sale of a property, the calculation of the superannuation split, and the winding up of the superannuation fund if the husband elects to do so. The orders also provide for the entry of the final form of the order in the Court’s records, subject to minor corrections or variations as permitted by the Family Law Rules.
Orders
Orders of the court
DGC 1118 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS JANNER
Applicant
AND:
MR JANNER
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1. The parties each retain all assets and liabilities in their sole names, including any superannuation other than that in the Janner Superannuation Fund (‘the Fund’).
2. The parties, by their lawyers, do all acts and things to:
(a) Confer as to the form of the section 90XT(b) order or orders necessary to give effect to these orders, including the sale of the property known as B Street, Suburb C, in the State of Victoria (‘the Suburb C property’) and minimise, but not avoid, legal taxation obligations; and
(b) Obtain any expert taxation or accounting advice as to the necessary form of the orders; and
(c) On or before 4.00 pm on 13 March 2025, the parties file and serve a joint minute of the order to bring about a superfund payment split and division of the benefit of the Fund between the parties to occur on 30 June 2025, to the following effect:
(i) That there be a percentage superannuation payment split, or splits, from the Husband’s interest in the Fund to the Wife to the effect that the Wife’s superannuation entitlements to be rolled out from the Fund is X per centum in accordance with the following formula:
X% = [(A + $1,383,661) × 53.8%] - $826,461
A
Where:
· ‘A’ is the total value of the parties’ superannuation interests in the Fund, as calculated as at 30 June 2025 after taking into account the net of sales expenses and taxation and proceeds of sale of the Suburb C property; and
· $1,383,661 (being the Wife’s “Keep” of $826,461 plus the Husband’s “Keep” of $557,200) is the total value of the property and superannuation interests of the parties, as found, excluding the assumed value of the Fund; and
· $826,461 is the value of the property and superannuation outside the Fund retained by the Wife (aka the “Wife’s Keep”) as found; and
· That formula can be described as calculating the superannuation percentage split (or splits) to the Wife from the Husband’s interest in the Fund, necessary to give effect to an overall asset and superannuation split (one pool) of 53.8% to the Wife and 46.2% to the Husband, taking into account that the Wife will, separate to her ultimate entitlement in the Fund, retain total assets, superannuation, and liabilities of $826,461 and the Husband will, separate to his ultimate entitlement in the Fund, retain total assets and liabilities of $557,200.
(ii) Thereafter the remainder or balance of the parties’ interests in the Fund be retained in the Fund as the Husband’s entitlements therein or if he elects, in writing, on or before 4.00pm on (date to be inserted) (‘the election date’) that the Fund be wound up and his remaining entitlement rolled out to a complying Fund, then after the superannuation payment split to the Wife, the Fund be wound up accordingly and in the event of the Husband does not elect to wind up the Fund on or before the election date, then he be deemed to have elected to retain his interest in the Fund and to have chosen to retain the remaining benefit of the Fund to the exclusion of the Wife.
(iii) In the event the Husband elects in writing by the election date, to wind up the Fund and roll out his remaining entitlement in the Fund to a complying Fund, then the parties do all things necessary to wind up the Fund and the accounting or other expense of doing so, including taxation expense, be treated and regarded as an expense of the Fund as at 30 June 2025.
3. In the event that there is a dispute as to the form of the orders referred to in 2(c) above, the parties each bring in their form of the order together with short written submissions as to why one or other order should be conferred on or before 4.00 pm on 13 March 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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