KAFER & KAFER

Case [2019] FCCA 2255


FEDERAL CIRCUIT COURT OF AUSTRALIA

KAFER & KAFER [2019] FCCA 2255
Catchwords:
FAMILY LAW – Property – distribution of matrimonial property – future needs – allegations of family violence – whether family violence impacted the Wife’s financial contributions to the marriage – allegations of non-disclosure – previous judgment debt – whether judgment debt should be treated as a joint liability – joint liability.

Legislation:

Evidence Act 1995 (Cth), s.140(2)

Family Law Act 1975 (Cth), Pt. VIII, ss. 75(2), 79, 79(2), 79(4), 90XT(1)(a)

Family Law (Superannuation) Regulations 2001 (Cth), Pt. 6

Federal Circuit Court Rules 2011 (Cth)

Cases cited:

Antmann and Antmann [1980] FamCA 64

Biltoft and Biltoft [1995] FamCA 45
Briginshaw v Briginshaw [1938] HCA 34
Keating & Keating [2019] FamCAC 46
Kennon & Kennon [1997] FamCA 27
Kowaliw and Kowaliw [1981] FamCA 48
Prince & Prince [1984] FamCA 7
Stanford v Stanford [2012] HCA 52
Stein and Stein [1986] FamCA 27
Watson & Ling [2013] FamCA 57
Weir & Weir (1992) FLC 92

Applicant: MS KAFER
Respondent: MR KAFER
File Number: MLC 29 of 2016
Judgment of: Judge Carter
Hearing dates: 28 & 29 May 2019
Date of Last Submission: 29 May 2019
Delivered at: Melbourne
Delivered on: 19 August 2019

REPRESENTATION

Counsel for the Applicant: Mr Felkel
Solicitors for the Applicant: My Legal Crunch VIC
Counsel for the Respondent: Ms Bryan
Solicitors for the Respondent: Amicus Lawyers

ORDERS

  1. The parties forthwith do all such acts and things as may be necessary to place on the market for sale the real property situated at and known as Street A, Suburb B in the State of Victoria (“the Street A, Suburb B property”) and for the purposes of the sale:-

    (a)the real estate agent be as agreed within 14 days and failing agreement as nominated by the President of the Real Estate Institute of Victoria or their nominee; and

    (b)the sale be conducted on such terms and on such conditions as agreed upon by the parties at the direction of the real estate agent, and failing agreement, the parties have liberty to apply to the Court.

  2. The proceeds of sale of the Street A, Suburb B property be applied as follows:-

    (a)firstly to pay all costs, commissions and expenses of sale;

    (b)secondly, to discharge the mortgage and any other encumbrance secured over the property;

    (c)thirdly, to pay any water rates and council rates outstanding as at the date of sale;

    (d)fourthly, to pay such amount as is outstanding to C Pty Ltd, with the Husband to provide to the solicitors for the Wife documentary evidence of the precise amount owing, along with confirmation that such sum has been paid;

    (e)fifthly, to pay to the Wife the sum of:-

    A + $9,000 x 60% - $2,000

    where A is the proceeds of sale after the payments pursuant to paragraphs (2) (a)-(d) inclusive; and

    (f)lastly, the balance then remaining to the Husband, SAVE THAT the Husband shall pay the additional sum of $1,081 (being…

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Details
AGLC
KAFER & KAFER [2019] FCCA 2255
Case
[2019] FCCA 2255
Decision Date

CaseChat Overview and Summary

In the matter of KAFER & KAFER, Judge Carter of the Family Court of Australia considered a dispute concerning the distribution of matrimonial property. The proceedings involved allegations of family violence and non-disclosure, with the Wife contending that family violence had impacted her financial contributions to the marriage. A previous judgment debt was also a point of contention, with the court required to determine whether this debt should be treated as a joint liability of the parties.

The court was tasked with determining the appropriate division of the parties' assets and liabilities, taking into account the impact of alleged family violence on the Wife's contributions and the treatment of a prior judgment debt. The court also had to consider the division of superannuation interests and the sale of a jointly owned property.

Judge Carter ordered the sale of the parties' real property at Street A, Suburb B, Victoria, with the proceeds to be applied first to sale costs, then to discharge any mortgage or encumbrance, followed by outstanding rates. A specific debt to C Pty Ltd was to be paid, with the Husband to provide evidence of payment. The remaining proceeds were to be distributed with a significant portion allocated to the Wife, calculated as 60% of the balance after specified deductions, less $2,000. The Husband was to receive the final balance, with a further deduction to cover costs previously ordered in favour of the Wife. The court also made orders for the splitting of the Husband's superannuation interests in Super Fund S and Super Fund T, specifying the amounts and the process for transfer. Each party was otherwise to retain their sole superannuation entitlements and other property, with joint tenancies severed and each party to be solely liable for liabilities encumbering their respective entitlements.

All extant applications were dismissed, and the matter was removed from the court's list. The court noted that the Trustee of Super Fund S had no objection to the superannuation splitting orders.

Orders

Orders of the court

1.

The parties forthwith do all such acts and things as may be necessary to place on the market for sale the real property situated at and known as Street A, Suburb B in the State of Victoria (“the Street A, Suburb B property”) and for the purposes of the sale:-

(a) the real estate agent be as agreed within 14 days and failing agreement as nominated by the President of the Real Estate Institute of Victoria or their nominee; and

(b) the sale be conducted on such terms and on such conditions as agreed upon by the parties at the direction of the real estate agent, and failing agreement, the parties have liberty to apply to the Court.

2.

The proceeds of sale of the Street A, Suburb B property be applied as follows:-

(a) firstly to pay all costs, commissions and expenses of sale;

(b) secondly, to discharge the mortgage and any other encumbrance secured over the property;

(c) thirdly, to pay any water rates and council rates outstanding as at the date of sale;

(d) fourthly, to pay such amount as is outstanding to C Pty Ltd, with the Husband to provide to the solicitors for the Wife documentary evidence of the precise amount owing, along with confirmation that such sum has been paid;

(e) fifthly, to pay to the Wife the sum of:-

A + $9,000 x 60% - $2,000

where A is the proceeds of sale after the payments pursuant to paragraphs (2) (a)-(d) inclusive; and

(f) lastly, the balance then remaining to the Husband, SAVE THAT the Husband shall pay the additional sum of $1,081 (being the costs ordered on 21 July 2016) to the Wife from his share.

3.

Pursuant to section 90XT(l )(a) of the Family Law Act 1975 (“Cth”), whenever Super Fund S ("the Trustee") of Super Fund S ("the fund") make a splittable payment from the interest held by the Husband, Member number … in the fund the trustee shall:-

(a) pay to the Wife or her administrators or executors and beneficiaries, heirs or assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and

(b) make a corresponding reduction in the entitlement that the Husband would have had in the fund but for these Orders.

4.

The base amount allocated to the Wife out of the interest held by the Husband in Super Fund T - Super Plan is $14,000.

5.

The following Order has effect from the operative time and the operative time of these Orders is five (5) business days after the date these Orders are served upon the Trustee.

6.

The Trustee of the fund shall do all such acts and things and sign all such documents as may be necessary, such that the trustee in accordance with the obligations set out in the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth) can calculate the entitlements of and make payments to the Wife in accordance with paragraph 5 of these Orders.

7.

This order binds the Trustee of Super Fund S.

8.

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 possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Wife);

(b) monies standing to the credit of the parties in any joint bank account are to be divided equally between the party and thereafter any such account be closed;

(c) insurance policies remain the sole property of the owner named thereon;

(d) each party retain for their sole use and benefit their superannuation entitlements;

(e) 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

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

9.

All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

AND THE COURT NOTES THAT:

A. The letters from Super Fund S dated 10 November 2016 and 7 August 2019 confirms that the Trustee has no objection to the Superannuation Splitting Order contained in these orders.

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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