FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kay & Schofield [2024] FedCFamC2F 195
File number(s): PAC 1415 of 2023 Judgment of: JUDGE NEWBRUN Date of judgment: 19 February 2024 Catchwords: FAMILY LAW – PROPERTY – Just and equitable orders made. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Kennon & Kennon (1997) FLC 92-757
Lotta & Lotta [2017] FamCA 50
Division: Division 2 Family Law Number of paragraphs: 62 Date of hearing: 8 February 2024 Place: Parramatta Solicitor for the Applicant: Barber Lawyers Counsel for the Respondent: Mr Spicer Solicitor for the Respondent: Vaikom Law ORDERS
PAC 1415 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAY
Applicant
AND: MR SCHOFIELD
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
19 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Within 60 days of the making of these Orders the following shall occur simultaneously:
(a)the husband shall pay to the wife the sum of $478,417;
(b)the wife shall do all acts and things and sign all documents necessary to cause the transfer to the husband of all her right title and interest in the property situated at and known as B Street, Suburb C, New South Wales (“the Suburb C property”);
(c)the husband shall do all acts and things and sign all necessary documents to discharge the mortgage secured over the Suburb C property and refinance that mortgage into his sole name.
2.Failing compliance with Order 1 herein, the husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of the Suburb C property.
3.For the purposes of Order 2 herein, the sale shall proceed as agreed between the parties and, failing agreement as to the mechanism for the sale, the following provisions shall apply:
(a)The listing price for the Suburb C property shall be as agreed between the parties and if there is no agreement then the listing price shall be as advised by a valuer nominated by the President of the Real Estate Institute of New South Wales;
(b)The Suburb C property shall be listed for sale by private treaty with estate agents as agreed upon between the parties and if there is no agreement then the estate agent shall be as nominated by the President of the Real Estate Institute of New South Wales;
(c)In the event that the Suburb C property has not been sold by or before a date 3 months from the date that the Suburb C property is listed for sale by private treaty, then the husband and wife shall make all such arrangements and do all such acts and things and sign all such documents and pay all monies equally as necessary to procure a sale by public auction of the Suburb C property upon the following terms:
(i)The auctioneer shall be as agreed upon between the parties and if there is no agreement then the auctioneer shall be as nominated by the President of the…
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CaseChat Overview and Summary
The court examined the evidence presented regarding the contributions of each party to the acquisition and maintenance of the property, as well as their respective financial needs and circumstances. Judge Newbrun considered the Family Law Act 1975 (Cth) and relevant case law to arrive at a just and equitable outcome. The court concluded that an immediate transfer of funds and property was necessary to ensure fairness and practicality in the division. The court ordered that Mr Schofield pay Ms Kay $478,417 and that the jointly owned property be sold, with proceeds allocated to settle debts, costs, and remaining balances to each party. Additionally, a portion of the husband's superannuation was allocated to the wife, with further steps outlined for the transfer and rollover of superannuation interests.
The final orders mandated the simultaneous payment and property transfer within 60 days, with provisions for sale if compliance was not achieved. The court also detailed the process for the sale of the property, the application of sale proceeds, and the handling of superannuation interests. Each party was granted exclusive rights to other personal property and chattels, with a mechanism for enforcing the orders if necessary. The court emphasised the importance of adhering to the timelines and conditions set forth in the orders.
Orders
Orders of the court
PAC 1415 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS KAY
Applicant
AND:
MR SCHOFIELD
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
19 FEBRUARY 2024
THE COURT ORDERS THAT:
1. Within 60 days of the making of these Orders the following shall occur simultaneously:
(a) the husband shall pay to the wife the sum of $478,417;
(b) the wife shall do all acts and things and sign all documents necessary to cause the transfer to the husband of all her right title and interest in the property situated at and known as B Street, Suburb C, New South Wales (“the Suburb C property”);
(c) the husband shall do all acts and things and sign all necessary documents to discharge the mortgage secured over the Suburb C property and refinance that mortgage into his sole name.
2. Failing compliance with Order 1 herein, the husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of the Suburb C property.
3. For the purposes of Order 2 herein, the sale shall proceed as agreed between the parties and, failing agreement as to the mechanism for the sale, the following provisions shall apply:
(a) The listing price for the Suburb C property shall be as agreed between the parties and if there is no agreement then the listing price shall be as advised by a valuer nominated by the President of the Real Estate Institute of New South Wales;
(b) The Suburb C property shall be listed for sale by private treaty with estate agents as agreed upon between the parties and if there is no agreement then the estate agent shall be as nominated by the President of the Real Estate Institute of New South Wales;
(c) In the event that the Suburb C property has not been sold by or before a date 3 months from the date that the Suburb C property is listed for sale by private treaty, then the husband and wife shall make all such arrangements and do all such acts and things and sign all such documents and pay all monies equally as necessary to procure a sale by public auction of the Suburb C property upon the following terms:
(i) The auctioneer shall be as agreed upon between the parties and if there is no agreement then the auctioneer shall be as nominated by the President of the Real Estate Institute of New South Wales;
(ii) The auction shall take place within 3 months after the deadline date for sale by private treaty;
(iii) The reserve price shall, unless agreed upon the parties, be as proposed by the auctioneer;
(iv) The parties shall each pay and be responsible for payment of one half of the auction expenses payable before the Suburb C property's auction.
(d) In the event that the Suburb C property is not sold by auction or by private negotiation within 14 days after the said auction, then the husband and wife shall do all such acts and sign all necessary documents and shall pay all monies equally necessary to procure a second auction within a further 5 weeks of that date otherwise upon the same terms and conditions as apply to the first auction.
4. The proceeds of the sale of the Suburb C property shall be applied in the following order and priority:
(a) To discharge the mortgage secured over the Suburb C property;
(b) To pay all costs and expenses of the sale of the Suburb C property including legal costs and disbursements, agent’s commission, advertising and sale expenses;
(c) In payment of $33,950 to the wife (to enable her to discharge debts owed by her to 5 persons referred to in her Financial Statement filed 8 December 2023);
(d) The balance as follows:
(i) $401,771 to the husband;
(ii) $444,468 to the wife.
5. The wife, on or before settlement of the above sale of the Suburb C property, shall cause to be obtained from Ms D, solicitor, a duly executed Withdrawal of Caveat form in respect to the caveat registered over the Suburb C property, and provide such form to the purchaser’s representative at settlement of the sale of the Suburb C property.
6. The husband and wife shall forthwith do all acts and things and sign all necessary documents to transfer the parties’ joint NAB account into the husband’s sole name.
7. The Court allocates, as required by s 90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $115,853 to the wife out of the husband’s interest in the Superannuation Fund 1 of which the Trustee of the E Super Trust is the trustee (Account Number: …).
8. In accordance with s 90XT(1)(a) of the Act:
(a) The wife (or the wife’s administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
(b) The entitlement of the husband in the Superannuation Fund 1 of which the Trustee of the E Super Trust is the trustee (Account Number: …) (or the entitlement of such other person who becomes entitled to receive a payment out of the Wife’s superannuation interest) is correspondingly reduced by force of this Order;
(c) The Superannuation Fund 1 of which the Trustee of the E Super Trust is the trustee (Account Number: …) (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(i) Calculate, in accordance with the requirements of the Act the entitlement awarded to the wife above;
(ii) Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the Superannuation Fund 1 of which the Trustee of the E Super Trust is the trustee (Account Number: …).
(d) This Order has effect from the operative time and the operative time is the fourth business day after the Order is served on the Trustee.
9. After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”) the Superannuation Fund 1 of which the Trustee of the E Super Trust is the trustee (Account Number: …) shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse’s interest to a complying superannuation fund of the wife’s choosing in accordance with SIS Regulations.
10. The Court notes:
(a) The value of the non-member spouse’s interest is calculated in accordance with the SIS regulations; and
(b) Any payments from the husband’s superannuation interest in the Superannuation Fund 1 of which the Trustee of the E Super Trust is the trustee (Account Number: …) made after the trustee has created a new interest in the wife’s name in the Superannuation Fund 2 (Member Number: …) are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
11. Subject to the above Orders:
(a) Each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such parties at the date of the making of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank's records thereof, insurance policies are deemed to be in the possession of the party named as the life insured, and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlement.
12. That if either party refuses or neglects to sign, within 14 days of a written request to do so, any documents necessary to effect the terms of these Orders, a Registrar or such other officer or person as may be appointed by the Federal Circuit and Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
13. Each party has liberty to apply in relation to the implementation or enforcement of these Orders upon 14 days’ notice.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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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