FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOSS & GORLAY | [2018] FCCA 758 |
| Catchwords: FAMILY LAW – Property settlement – marital relationship – dispute about initial contributions – dispute about financial contributions throughout relationship – dispute about post-separation contributions – credibility of husband in question – dispute about value of wife’s business – asset by asset or joint approach to dividing matrimonial pool. |
| Legislation: Family Law Act 1975, ss.72(1), 75(2), 79(2), 79(4) |
| Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116 Black and Kellner (1992) 15 Fam LR Chang & Su (2002) 170 FLR 244; (2002) 29 Fam LR 406; (2002) FLC 93-117; [2002] FamCA 156 DJM & JLM (1998) 23 Fam LR 396 Zyk & Zyk (1995) FamCA 135 |
| Applicant: | MR JOSS |
| Respondent: | MS GORLAY |
| File Number: | MLC 4307 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 1, 2 & 3 November 2017 |
| Date of Last Submission: | 3 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 29 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms B Tulloch |
| Solicitors for the Applicant: | Cantwell Family Lawyers |
| Counsel for the Respondent: | Mr D Sweeney |
| Solicitors for the Respondent: | Lopes Family Law |
ORDERS
The husband pay to the wife the sum of $80,000 (“the payment”) on or before 20 April 2018 (“the date”).
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 her right, title and interest in the real property situate at and known as Property A (“the Property A property”) and the real property situate at and known as Property B (“the Property B property”);
(b)the husband indemnify the wife against all payments and liabilities pursuant to the mortgage registered number (omitted) and (omitted) and all apportionable rates, taxes and outgoings of or with respect to the Property A property and the Property B property of whatsoever nature and kind;
(c)the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all his right, title and interest in the real property situate at and known as Property C (“the Property C property”); and
(d)the wife indemnify the husband against all payments and liabilities pursuant to the mortgage registered number (omitted) and all apportionable rates, taxes and outgoings of or with respect to the Property C property of whatsoever nature and kind.
In the event that the whole of the payment has not been made by the date, the Property A property be forthwith sold altogether out of court (“the sale”) and…
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- Joss and Gorlay [2018] FCCA 758
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- [2018] FCCA 758
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CaseChat Overview and Summary
The court was required to determine the terms of the property settlement between the parties, including the payment of a sum of money, the transfer of specific real estate, and the division of superannuation entitlements. The court also had to address the ongoing liabilities and responsibilities associated with the properties and superannuation funds pending their final division.
The court ordered the husband to pay the wife $80,000 by a specified date, contemporaneously with which the parties were to transfer their respective interests in certain properties to each other and provide indemnities for associated liabilities. In the event of non-payment, the property designated as Property A was to be sold, with proceeds applied to costs, encumbrances, the outstanding payment to the wife, and any balance to the husband. Pending payment or sale, each party was granted sole occupation of specific properties and was responsible for associated mortgage payments and outgoings. The court also made detailed orders regarding the division of superannuation interests, including a 100% allocation of splittable payments from the husband's self-managed superannuation fund to the wife, and a specific monetary amount to be allocated to the wife from the husband's interest in another superannuation fund. The husband was restrained from dealing with his interest in the latter fund in a manner that would render it a non-splittable payment. Provisions were made for the appointment of a Registrar to execute documents if necessary, and liberty to apply was granted in relation to the implementation of the superannuation orders.
Orders
Orders of the court
1.
The husband pay to the wife the sum of $80,000 (“the payment”) on or before 20 April 2018 (“the date”).
2.
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 her right, title and interest in the real property situate at and known as Property A (“the Property A property”) and the real property situate at and known as Property B (“the Property B property”);
(b) the husband indemnify the wife against all payments and liabilities pursuant to the mortgage registered number (omitted) and (omitted) and all apportionable rates, taxes and outgoings of or with respect to the Property A property and the Property B property of whatsoever nature and kind;
(c) the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all his right, title and interest in the real property situate at and known as Property C (“the Property C property”); and
(d) the wife indemnify the husband against all payments and liabilities pursuant to the mortgage registered number (omitted) and all apportionable rates, taxes and outgoings of or with respect to the Property C property of whatsoever nature and kind.
3.
In the event that the whole of the payment has not been made by the date, the Property A property be forthwith sold altogether out of court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a) firstly, to pay all costs, commissions and expenses of the sale;
(b) secondly, to discharge the mortgage and any other encumbrance affecting the Property A property;
(c) thirdly, so much of the payment as is then outstanding together with interest thereon as prescribed by the Family Law Rules adjusted monthly from the date to the wife;
(d) fourthly, the balance then remaining to the husband.
4.
Pending the payment or completion of the sale:
(a) the husband have the sole right to occupy the Property A property and the Property B property and during such right of occupation, the husband pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the Property A property and the Property B property as they fall due;
(b) the wife have the sole right to occupy the Property C property and during such right of occupation, the wife pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the Property C property as they fall due;
(c) the parties hold their respective interests in the Property A property, the Property B property and the Property C property upon trust pursuant to these orders; and
(d) neither party may encumber the Property A property, the Property B property or Property C property without the consent in writing of the other party.
5.
The husband otherwise retain, to the exclusion of the wife, all other items of property (both real and personal and including choses-in-action and financial resources) in his name, possession and/or control, including but not limited to:
(a) his interest in:
(i) (omitted business);
(ii) The (omitted) Business Trust; and
(iii) (omitted business);
(b) his bank accounts and savings; and
(c) his personal belongings and effects.
6.
The husband be solely liable for and indemnify the wife against any liability in his name or encumbering any item of property which he is to retain pursuant to these orders, including any liability associated with his businesses, including but not limited to (omitted) Business Trust and (omitted business).
7.
The wife otherwise retain, to the exclusion of the husband, all other items of property (both real and personal and including choses-in-action and financial resources) in her name, possession and/or control, including but not limited to:
(a) her interest in:
(i) The (omitted business);
(ii) The (omitted) Unit Trust;
(iii) (omitted business); and
(iv) The (omitted) Trust;
(b) her Mazda motor vehicle;
(c) her bank accounts and savings; and
(d) her personal belongings and effects including, without limitation, the engagement ring.
8.
The wife be solely liable for and indemnify the husband against any liability in her name or encumbering any item of property which she is to retain pursuant to these orders, including any liability associated with her business The (omitted business) and (omitted business).
9.
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 superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b) insurance policies remain the sole property of the owner named thereon;
(c) each party be solely liable for the payment of any outstanding credit card debt accrued in their respective names as at the date of these orders; and
(d) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
10.
In default of the parties or either of them doing all acts and things and executing all such documents as may be necessary to give effect to these orders within the timeframes set out in these orders, a Registrar of the Family Court of Australia be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all documents and to do all acts and things necessary to give validity and operation to these orders.
(omitted) self-managed superannuation fund
11.
In accordance with section 90MT(1)(b) of the Family Law Act 1975 (Cth):
(a) the wife is entitled to 100% of each splittable payment made out of the husband’s interest in the self-managed superannuation fund known as the (omitted) self-managed superannuation fund (“the fund”); and
(b) the husband’s entitlement in the fund is correspondingly reduced.
12.
Order (11) has effect from the operative time, as defined in order (13).
13.
The operative time as referred to in order (12) is the date of transfer of the transferable benefits.
14.
The husband and the wife, as the trustees of the fund (“the trustee”) do all such acts and things and sign all such documents as may be required to:
(a) calculate the entitlement created in order (11) in accordance with the requirements of the Family Law Act 1975 (Cth); and
(b) pay the entitlements whenever a splittable payment becomes payable.
15.
Following the implementation of orders (11) to (14) inclusive, the trustees of the fund do all acts and things, call all necessary meetings of the fund and pass all such resolutions as may be requested by the accountants of the fund to enable the husband to relinquish all of his right, title and interest in the fund (and he do so relinquish), and the husband forthwith upon receiving a written request from the accountant of the fund, provide all original signed documents in his possession, power or control relating to the fund.
16.
The accountant of the fund is to be nominated by the wife to the trustees in writing within 7 days from the date of these orders.
17.
As and from the implementation of order (15) herein, the wife be solely responsible for and forever indemnify the husband in relation to all liability of whatsoever nature and kind relating to the fund, including any liability of whatsoever nature and kind of the husband personally arising out of his involvement in the fund.
18.
Both parties in their capacities as trustees of the fund agree to these orders.
19.
In the event that the wife has any role in or is a beneficiary of either of the (omitted) Unit Trust or the (omitted) Business Trust and she elects to take steps to relinquish any such interest/s, both parties do all acts and things and sign all documents as may be directed by the wife’s accountant to effect same.
20.
Each party and the trustee of the fund have liberty to apply in relation to the implementation of orders (11) to (19) inclusive.
The (employer omitted) Superannuation and Benefits Scheme
21.
The base amount to be allocated to the wife out of the interest of the husband in the (employer omitted) Superannuation and Benefits Scheme (“the (omitted) fund”), pursuant to section 90MT(4) of the Family Law Act 1975 (Cth) is $114,377.
22.
In accordance with section 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the interest of the husband in the (employer omitted) fund, the trustee of the (omitted) fund shall:
(a) pay to the wife or her legal representative the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $114,377; and
(b) make a corresponding reduction in the entitlement that the husband would have had but for these orders.
23.
Order (22) has effect from the operative time as defined by order (24).
24.
The operative time as referred to in order (22) is the fourth business day after the date on which a sealed copy of these orders is served on the trustee of the (employer omitted) fund.
25.
The wife serve a copy of these orders on the trustee of the (employer omitted) fund within 7 days from the date of these orders.
26.
Until the happening of:
(a) the establishment of a separate account in the name of the wife in the (employer omitted) fund;
(b) the transfer of rolling over into another superannuation fund of the payment split created by order (22);
(c) the wife satisfying a condition of release and being paid the payment split created by this order; or
(d) the wife executing a waiver of rights within the meaning of section 90MZA of the Family Law Act 1975 (Cth) in relation to the payment split created by this order;
the husband be and is hereby restrained by himself, his servants or agents from doing any act or thing which would render any part of his interest in the (employer omitted) fund a non-splittable payment within the meaning of regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 or otherwise effecting or dealing in any way whatsoever with his interest or entitlements in the (employer omitted) fund, save as provided for in these orders, including but not limited to receiving any funds from the (employer omitted) fund, directing any payments from the (employer omitted) fund, directing any transfers of any entitlements from the (employer omitted) fund or making any claims on the (employer omitted) fund.
27.
Each party and the trustee of the (employer omitted) fund have liberty to apply in relation to the implementation of orders (21) to (26) inclusive.
AND THE COURT NOTES THAT:
28.
Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
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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