Knight and Knight (No.2)

Case [2017] FCCA 2613


FEDERAL CIRCUIT COURT OF AUSTRALIA

KNIGHT & KNIGHT (No.2) [2017] FCCA 2613

Catchwords:

FAMILY LAW – Property – spousal maintenance- child support departure – credit.

Legislation:

Family Law Act 1975 (Cth) ss.72, 75(2), 79(2), (4)

Child Support (Assessment) Act 1989 (Cth) s.117

Cases cited:

Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143
Stanford v Stanford (2012) 247 CLR 108
Fielding & Nichol [2014] FCWA 77
Pierce & Pierce (1999) FLC 92-844
Crawford & Crawford (1979) FLC 90-647
Kennon & Kennon (1997) FLC 92-757

In the marriage of Gyselman (1992) FLC 92-279
Kowaliw & Kowaliw (1981) FLC 91-092
Bevan & Bevan (1995) FLC 92-600
Taguchi & Taguchi (1987) FLC 91-836

Applicant: MS KNIGHT
Respondent: MR KNIGHT
File Number: MLC 5778 of 2014
Judgment of: Judge McGuire
Hearing dates: 15 & 16 March 2016, 25 May 20 15 & 16 March 2016, 25 May 2016, 29,30 & 31 August 2016, 4 November 2016, 19 December 2016, 16 March 2017, 13 & 15 June 2017 & 26 October 2017
Date of Last Submission: 7 November 2017
Delivered at: Melbourne
Delivered on: 17 November 2017

REPRESENTATION

Counsel for the Applicant: Mr Salamanca
Solicitors for the Applicant: Julie Andritsos
Counsel for the Respondent: Appeared in Person

ORDERS

  1. That the real property situate at Property A in Victoria and Property B in Victoria both be forthwith placed on the market for sale as follows:

    (a)by an agent(s) as agreed between the parties but failing agreement then by an agent(s) nominated by the President of the Real Estate Institute of Victoria or delegate thereof:

    (b)by private treaty or by auction as agreed between the parties or failing agreement then as recommended by the agent(s);

    (c)at sale or reserve prices as agreed between the parties or failing agreement then as recommended by the agent(s);

    (d)with the parties to accept any reasonable offer of purchase as agreed or failing agreement then as recommended by the agent(s).

  2. That the proceeds of sale of the said properties be disbursed as follows:

    (a)to the reasonable costs and disbursements on sale;

    (b)to the satisfaction of any registered mortgages secured by the said properties;

    (c)to the payment of any capital gains tax liability incurred on the sale;

    (d)the balance so as to give effect to a division of the net tangible assets of the parties as to 60% to the wife and 40% to the husband pursuant to the findings in my reasons herein.

  3. That the parties or either of them have liberty to apply in respect of the option of either party retaining either piece of real property at value as found in my reasons herein.

  4. That the parties or either of them have liberty to apply in respect of the orders for sale of the real property herein.

  5. That the husband be solely entitled, to the exclusion of the wife, to his sporting memorabilia collection and to the bank account in the name of X.

  6. That the husband’s portfolio of shareholdings be sold forthwith at value…

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AGLC
Knight and Knight (No.2) [2017] FCCA 2613
Case
[2017] FCCA 2613
Decision Date

CaseChat Overview and Summary

In *Knight and Knight (No.2)*, Judge McGuire considered the division of property and superannuation entitlements between a husband and wife. The dispute involved the sale of real property, the distribution of sale proceeds, the allocation of specific assets such as sporting memorabilia and shareholdings, and the division of superannuation interests. The court also addressed applications for spousal maintenance and departure from child support assessments.

The primary legal issues before the court were how to effect a just and equitable division of the parties' tangible assets, including real estate and financial investments, and how to properly implement a superannuation splitting order in accordance with the *Family Law Act 1975* and its associated regulations. The court was required to determine the method of sale for the parties' properties, the allocation of sale proceeds, and the specific entitlements of each party to various personalty and financial assets. Furthermore, the court had to consider the binding effect of its orders on a superannuation fund trustee and the husband's obligations regarding his superannuation interest.

Judge McGuire ordered that the parties' real properties be placed on the market for sale, with the proceeds to be applied first to sale costs, then to satisfaction of mortgages, capital gains tax, and finally, the balance to be divided with 60% to the wife and 40% to the husband. The husband was to retain his sporting memorabilia and a specific bank account, while his share portfolio was to be sold to facilitate the asset division. The court also made detailed orders regarding the division of the husband's superannuation interest, allocating a base amount to the wife and directing the superannuation trustee to give effect to the payment split, while restraining the husband from diminishing the value of his superannuation interest. The wife's applications for spousal maintenance and a departure from child support assessment were dismissed.

Orders

Orders of the court

1.

That the real property situate at Property A in Victoria and Property B in Victoria both be forthwith placed on the market for sale as follows:

(a) by an agent(s) as agreed between the parties but failing agreement then by an agent(s) nominated by the President of the Real Estate Institute of Victoria or delegate thereof:

(b) by private treaty or by auction as agreed between the parties or failing agreement then as recommended by the agent(s);

(c) at sale or reserve prices as agreed between the parties or failing agreement then as recommended by the agent(s);

(d) with the parties to accept any reasonable offer of purchase as agreed or failing agreement then as recommended by the agent(s).

2.

That the proceeds of sale of the said properties be disbursed as follows:

(a) to the reasonable costs and disbursements on sale;

(b) to the satisfaction of any registered mortgages secured by the said properties;

(c) to the payment of any capital gains tax liability incurred on the sale;

(d) the balance so as to give effect to a division of the net tangible assets of the parties as to 60% to the wife and 40% to the husband pursuant to the findings in my reasons herein.

3.

That the parties or either of them have liberty to apply in respect of the option of either party retaining either piece of real property at value as found in my reasons herein.

4.

That the parties or either of them have liberty to apply in respect of the orders for sale of the real property herein.

5.

That the husband be solely entitled, to the exclusion of the wife, to his sporting memorabilia collection and to the bank account in the name of X.

6.

That the husband’s portfolio of shareholdings be sold forthwith at value and the proceeds realised for the purposes of the alteration of the parties total tangible assets as to 60% to the wife and 40% to the husband but that the parties or either of them have liberty to apply in respect to this order.

7.

That in all other respects, each of the parties be solely entitled to the exclusion of the other, but subject to these orders, to all items of personalty, chattels, motor vehicles, balances of bank accounts or like investments in the name of or to the benefit of that party, and superannuation entitlements in the possession or control of that party as at the date of these orders.

8.

That each party be solely responsible for and indemnify the other in respect of any liability attaching to any asset retained by that party pursuant to these orders and only liabilities personal to that party.

9.

That paragraphs 9 to 16 (inclusive) of these orders are binding on the (omitted) Fund Pty Limited ('the Trustee') as Trustee of (omitted) Superannuation Fund ('the Fund').

10.

That the base amount of $44,484.00 is allocated, as required by section 90MT(4) of the Family Law Act 1975 (“the Act”), to the Wife out of the interest of the Husband’s (member number (omitted)) interest in the Fund ('the base amount').

11.

That in accordance with section 90MT(1)(a) of the Act:

(a) the Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 ('the Regulations');

(b) the Wife’s entitlement (and the entitlement of such other person to whom a splittable payment may be made) to payments out of the Husband's interest in the Fund is correspondingly reduced.

12.

That the Trustee do all such acts and things and sign all such documents as may be necessary to:

(a) Calculate, in accordance with the requirements of the Act and the Regulations, the entitlement created by paragraphs 9 and 10 of these orders;

(b) Pay the entitlement whenever a splittable payment within the meaning of section 90ME of the Act becomes payable from the Husband’s interest in the Fund.

13.

That paragraphs 14 to 16 inclusive hereof have effect from the operative time which is four business days after the date of service of a sealed copy of this Order upon the Trustee of the Fund.

14.

That pursuant to section 90MZD of the Act the Trustee of the Fund is bound by, and shall from the date of service upon the Trustee give effect to these Orders.

15.

That until the happening of any of the following:

(a) The establishment of a separate account in the name of the Wife;

(b) The transfer or rolling over into another superannuation fund of the payment created by these Orders;

(c) The Wife satisfying a condition of release and being paid the payment split created by these Orders;

(d) The Wife executing a waiver of rights within the meaning of section 90MZA of the Act relation to the payment created by these Orders;

the Husband be and is hereby restrained by himself, his servant or agents from drawing upon, encumbering or executing a death benefit nomination in favour of any other person, or doing any other act or thing that would have the effect of defeating, diminishing or otherwise reducing the allocated amount or rendering part of his interest in the Fund ‘a not-splittable payment’ within the meaning of Regulation 12 or 13 of the Regulations.

16.

That the Applicant, the Respondent and the Trustee have liberty to apply in relation to the implementation of these Orders affecting the Applicant's superannuation interests.

17.

That each party do all such things including the signing of all documents to give effect to these orders.

18.

That the wife’s application for spousal maintenance be dismissed.

19.

That the wife’s application for a departure from child support assessment be dismissed.

20.

That the parties or either of them have liberty to apply in respect of the division of or transfer of chattels and personalty between the parties.

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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