Janner & Janner

Case [2025] FedCFamC2F 297


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
[2025] FedCFamC2F 297
Decision Date

CaseChat Overview and Summary

The case of Janner & Janner before the Federal Circuit and Family Court of Australia involves a property dispute between Ms Janner and Mr Janner. The primary issue before the Court was whether the parties had reached an agreement many years prior to the issue of proceedings concerning the division of their assets. The parties had not divided their self-managed superannuation fund (SMSF) at the time of their separation, but had divided their non-superannuation assets. The Court had to determine if there was indeed an agreement as alleged by the parties and, if not, how to equitably divide their assets, including the superannuation fund.

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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