FEDERAL CIRCUIT COURT OF AUSTRALIA
| KINLEY & LUTZ | [2018] FCCA 3714 |
| Catchwords: FAMILY LAW – Undefended property proceedings – matters to be considered in respect of determining proceeding in absence of one party –assessment of contributions - contents of property pool – satisfy requirements of section 79(2) - assessment of section 79(4) factors – just and equitable. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 79 Federal Circuit Court Rules (Cth), rr.13.03A;13.1A |
| Cases cited: Taylor v Taylor (1979) 143 CLR 1 |
| Applicant: | MS KINLEY |
| Respondent: | MR LUTZ |
| File Number: | ADC 2093 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 7 December 2018 |
| Date of Last Submission: | 7 December 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 20 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Pengallo |
| Solicitors for the Applicant: | Doconade Adelaide Lawyers |
| Counsel for the Respondent: | No appearance |
ORDERS
That in full and final settlement of all claims that either party may have for settlement of property or alteration of interests in property under Parts VIII and Part VIIIB of the Family Law Act 1975 (as amended) in the past, in the present or in the future:
(a)That as and from the date of this order the Applicant wife shall retain for her sole use, free of any further claim or demand of the Respondent Husband, the Motor Vehicle 1 and the Applicant Wife shall be responsible for all costs arising with respect to this motor vehicle, including any tax duties and registration fees.
(b)That in relation to Respondent Husband’s Super Fund F Superannuation entitlements, member number …(‘the Fund’):
(i)That the court allocate, as required by section 90MT(4) of the Family Law Act 1975 (as amended) (‘Cth’) (‘the Act‘) such base amount of $20,078.50 to the Applicant wife from the Respondent husband’s entitlement in the Fund;
(ii)That pursuant to section 90MT(1)(a) of the Act whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to the Applicant’s Wife from the Respondent’s entitlements in the Fund, the Applicant Wife is entitled to be paid (by the Trustee of the Fund) an amount calculated in accordance with Part 6 of the Family Law (Superannuation Regulations 2009 (‘the Regulations’) using such base amount as is equivalent to provide the sum of $20,078.50 to the Applicant’s wife and there shall be a corresponding reduction in the entitlement that the Respondent husband would have had in the Fund but for this order;
(iii)That paragraph 1(b)(i) herein have affect from the operative time and that the operative time for these orders is the fourth business day after the day on which a certified copy of the sealed court orders is served on the Trustee…
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- AGLC
- Kinley and Lutz [2018] FCCA 3714
- Case
- [2018] FCCA 3714
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate allocation of specific assets and liabilities between the parties. This included determining the wife's entitlement from the husband's superannuation fund, the distribution of funds held in two separate lawyers' trust accounts, and the division of other personal property and potential liabilities. The court also needed to address the procedural requirements for implementing the superannuation split, including the role of the superannuation trustee and the operative time for the orders.
Judge Brown made orders for the full and final settlement of all claims. The Applicant wife was to retain a motor vehicle and was allocated a base amount of $20,078.50 from the Respondent husband's superannuation fund, with specific provisions for how this amount would be paid by the trustee. Funds held in the Doconade Adelaide Lawyers trust account were to be distributed, with the majority allocated to the Applicant wife as proceeds of sale of Property A, and a portion to the Respondent husband, along with legal costs. The Respondent husband was to receive all monies held in the Mahony’s Lawyers trust account. Both parties were to retain personal property currently in their possession, monies in their sole name bank accounts, shares, investments, and other employment-related benefits. They were also to retain any motor vehicle in their possession. The parties were to jointly bear any capital gains liability from the sale of Property B. Each party was to be solely liable for and indemnify the other against liabilities encumbering property they received, and both parties provided broad indemnities to each other against all claims. All extant applications were dismissed.
Orders
Orders of the court
1.
That in full and final settlement of all claims that either party may have for settlement of property or alteration of interests in property under Parts VIII and Part VIIIB of the Family Law Act 1975 (as amended) in the past, in the present or in the future:
(a) That as and from the date of this order the Applicant wife shall retain for her sole use, free of any further claim or demand of the Respondent Husband, the Motor Vehicle 1 and the Applicant Wife shall be responsible for all costs arising with respect to this motor vehicle, including any tax duties and registration fees.
(b) That in relation to Respondent Husband’s Super Fund F Superannuation entitlements, member number …(‘the Fund’):
(i) That the court allocate, as required by section 90MT(4) of the Family Law Act 1975 (as amended) (‘Cth’) (‘the Act‘) such base amount of $20,078.50 to the Applicant wife from the Respondent husband’s entitlement in the Fund;
(ii) That pursuant to section 90MT(1)(a) of the Act whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to the Applicant’s Wife from the Respondent’s entitlements in the Fund, the Applicant Wife is entitled to be paid (by the Trustee of the Fund) an amount calculated in accordance with Part 6 of the Family Law (Superannuation Regulations 2009 (‘the Regulations’) using such base amount as is equivalent to provide the sum of $20,078.50 to the Applicant’s wife and there shall be a corresponding reduction in the entitlement that the Respondent husband would have had in the Fund but for this order;
(iii) That paragraph 1(b)(i) herein have affect from the operative time and that the operative time for these orders is the fourth business day after the day on which a certified copy of the sealed court orders is served on the Trustee of the Fund;
(iv) That having been afforded procedural fairness in relation to the making of these orders, the Trustee of the Fund shall be bound to observe paragraph 1(b)(i) herein and the Trustee obligations as set out under the Act and the Regulations;
(v) That within 7 days of these orders being made; –
(1) that the Applicant wife shall serve a certified copy of these orders upon the Trustee of the Fund; and
(2) that the Applicant wife shall give notice, in writing, to the Fund pursuant to section 72 of the Regulations;
(vi) That the parties shall each pay one half of any fees charged by the Trustee of the Fund in administering the payment split pursuant to these orders.
(c) That the monies held by Doconade Adelaide Lawyers Law Practice Trust Account being $247,631.89 be distributed as follows:
(i) To the Applicant wife the sum of $146,804.73 representing the proceeds of sale of Property A and adjustments in her favour:
(ii) To Doconade Adelaide Lawyers in accordance with the Order dated 14 August 2018, the sum of $1,851.22 for costs so ordered;
(iii) To Doconade Adelaide Lawyers for the costs of this application the sum of $1,040.43;
(iv) To the Respondent husband the sum of $97,935.54.
(d) The parties retain:-
(i) Any items of personality, furniture, jewellery, household goods and effects, presently in their possession;
(ii) Any monies held in bank accounts in their sole name;
(iii) Any shares and investments including life insurance in their name or due to accruing to them and to which they may become entitled;
(iv) Subject to paragraph 1(b)(i) of these orders, any superannuation benefit in their name or accruing to them and to which they may become entitled;
(v) Any benefits, rights or entitlements to or entitled to or which they may vest in them under any trusts or deceased estate including rights in any loan amounts;
(vi) All entitlements or benefits are or accruing to them by reason of or arising out of their employment including any service leave and benefits paid or to be paid in respect of resignation, retirement, dismissal or separation from employment; and
(vii) Any motor vehicle currently in their possession.
(e) That the monies held by Mahony’s Lawyers trust account being $17,042.50 be distributed to the Respondent husband.
(f) That subject to any other terms of these orders each party shall be solely liable for and indemnity the other party against any liabilities encumbering any item of property to which they are entitled pursuant to the terms of these orders.
(g) That the husband shall keep and indemnity the wife against any and all claims, actions, suits or demands of whatsoever nature;
(h) That the wife shall keep and indemnity that the husband against any and all claims, actions, suits or demands of whatsoever nature;
(i) The Applicant wife and Respondent husband will split any capital gains liability incurred from the sale of the property known and situated at Property B South Australia.
2.
A copy of the orders made in these proceedings and these reasons for judgment be served by prepaid post on the husband at his last known address.
3.
All extant applications be dismissed.
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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