FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kwon & Reece [2022] FedCFamC1F 203
File number(s): MLC 4678 of 2020 Judgment of: BENNETT J Date of judgment: 31 March 2022 Catchwords: FAMILY LAW Legislation: Family Law Act 1975 (Cth) Cases cited: Bevan & Bevan (2013) FLC 93-545
Browne v Green (1999) FLC 92-873
Cerini [1998] FamCA 143
Chorn v Hopkins (2004) FLC 93-204
GVC v HPC (1998) FamCA 143
Jabour & Jabour [2019] FamCAFC 78
Marker v Marker, (1998) FamCA 42
Omacini and Omacini (2005) FLC 92-218
Trevi & Trevi [2018] FamCAFC 173
Williams & Williams [2007] FamCA 313
Division: Division 1 First Instance Number of paragraphs: 226 Date of hearing: 7, 8 & 9 March 2022 Place: Melbourne Counsel for the Applicant: Mr Williams Solicitor for the Applicant: Coote Family Lawyers Counsel for the Respondent: Mr Bartfeld QC Solicitor for the Respondent: Hargreaves Family Lawyers ORDERS
MLC 4678 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KWON
Applicant
AND: MR REECE
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.The Court declares that pursuant to s. 90SM(3) that it is satisfied that in all the circumstances it is just and equitable to make an Order under s. 90SM(1).
2.Within 90 days (“the date”), the Applicant pay to the Respondent the sum of $963,815 (“the payment”).
3.That all extant maintenance orders be and are hereby discharged from the date of the payment.
4.In the event the whole of the payment has not been made by the date, the Applicant, at the Applicant’s expense, do all such things and sign all documents necessary to effect sale of the real property situate at and known as C Street, Suburb J (“the Suburb J property”) (“the sale”), with the proceeds of the sale distributed as follows:
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Second, to discharge the mortgage or any encumbrance secured against the Suburb J property;
(c)Third, the payment to the Respondent, plus interest calculated on a daily basis in accordance with Rule 10.17 of the Federal Circuit And Family Court Of Australia (Family Law) Rules 2021(Cth); and
(d)Finally, the balance to the Applicant.
5.The Applicant forthwith do all acts and things and sign all documents necessary to transfer registration of the Motor Vehicle 1 (…) to the Respondent, at the Respondent’s expense.
6.Paragraphs 7 to 11 of these Orders are binding on Super Fund 1 (“the Trustee”), being the trustee of Super Fund 1 (“the Fund”).
7.The base amount to be allocated to the Respondent out of the interest of the Applicant in the Fund (member number: …28) is $212,979 (“the base amount”).
8.In accordance with s 90XT(1)(a) of the Family Law Act 1975:
(a)The Respondent is entitled to be paid from the Applicant’s interest in the Fund, an amount calculated in accordance with…
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CaseChat Overview and Summary
The court also made orders in relation to costs, including that each party be solely entitled to their own legal costs and that any application for costs be notified to the other party and the court in advance of oral argument. The court found that it was reasonable for each party to retain counsel, including Queen’s Counsel for Mr Reece, to attend and appear on their behalf. The court noted that the form of the order was subject to entry in the court’s records and that the order may be subject to review or variation in certain circumstances. The court also noted the confidentiality requirements under s. 121 of the Family Law Act 1975 (Cth) in relation to the publication of proceedings that identify persons involved in family law proceedings.
Orders
Orders of the court
MLC 4678 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS KWON
Applicant
AND:
MR REECE
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1. The Court declares that pursuant to s. 90SM(3) that it is satisfied that in all the circumstances it is just and equitable to make an Order under s. 90SM(1).
2. Within 90 days (“the date”), the Applicant pay to the Respondent the sum of $963,815 (“the payment”).
3. That all extant maintenance orders be and are hereby discharged from the date of the payment.
4. In the event the whole of the payment has not been made by the date, the Applicant, at the Applicant’s expense, do all such things and sign all documents necessary to effect sale of the real property situate at and known as C Street, Suburb J (“the Suburb J property”) (“the sale”), with the proceeds of the sale distributed as follows:
(a) First, to pay all costs, commissions and expenses of the sale;
(b) Second, to discharge the mortgage or any encumbrance secured against the Suburb J property;
(c) Third, the payment to the Respondent, plus interest calculated on a daily basis in accordance with Rule 10.17 of the Federal Circuit And Family Court Of Australia (Family Law) Rules 2021 (Cth); and
(d) Finally, the balance to the Applicant.
5. The Applicant forthwith do all acts and things and sign all documents necessary to transfer registration of the Motor Vehicle 1 (…) to the Respondent, at the Respondent’s expense.
6. Paragraphs 7 to 11 of these Orders are binding on Super Fund 1 (“the Trustee”), being the trustee of Super Fund 1 (“the Fund”).
7. The base amount to be allocated to the Respondent out of the interest of the Applicant in the Fund (member number: …28) is $212,979 (“the base amount”).
8. In accordance with s 90XT(1)(a) of the Family Law Act 1975:
(a) The Respondent is entitled to be paid from the Applicant’s interest in the Fund, an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in Order 7 above; and
(b) The Applicant’s entitlement in the Fund is correspondingly reduced.
9. Paragraphs 10 and 11 have effect from the operative time and the operative time is four business days from the date of service of a sealed copy of these Orders on the Trustee.
10. The Trustee shall do all such acts and things and sign all documents as may be necessary to:
(a) Calculate, in accordance with the requirements of the Family Law Act 1975, the entitlement created in Order 7 of these Orders; and
(b) Pay the entitlements whenever a splittable payment becomes payable from the Applicant’s interest.
11. After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the Applicant and Respondent shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Respondent’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the Respondent’s choosing in accordance with the SIS Regulations.
12. The Applicant otherwise retain, to the exclusion of the Respondent, all of her right title and interest in the following:
(a) All savings in her name;
(b) Her Motor Vehicle 5;
(c) Her superannuation entitlements, save as otherwise provided for in these Orders; and
(d) Her personal belongings and chattels.
13. The Respondent otherwise retain, to the exclusion of the Applicant, all of his right title and interest in the following:
(a) All savings in his name;
(b) His superannuation entitlements with Super Fund 2; and
(c) His personal belongings and chattels.
14. The Applicant pay and indemnify and keep the Respondent indemnified with respect to:
(a) The B Bank home loan (#...01);
(b) The B Bank portfolio loan (#...33);
(c) The property dispute liability and any legal fees associated with those proceedings; and
(d) Her B Bank credit card.
15. The Respondent pay and indemnify and keep the Applicant indemnified with respect to:
(a) His NAB credit card (#...44);
(b) The funds loaned to him from his mother, Ms E; and
(c) Any and all other liabilities held in his name, now or in the future.
16. That 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 shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Order;
(b) Any money standing to the credit of the parties in a bank account in their own name are to be retained by that party;
(c) Each party shall be solely liable for all debts (including credit card and any taxation liabilities) and personal loans in their own name;
(d) Each party foregoes any claims they may have to any superannuation or other employment benefits belonging to or earned by the other;
(e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
17. Pursuant to Rule 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, I will certify that it was reasonable for each party to retain Counsel, including Queen’s Counsel for the husband, to attend and to appear on their behalf.
18. Any party wishing to make an application in relation to costs notify the other party of the amount of costs claimed and notify my Chambers in writing that an application for costs is to be made. Upon being notified of a costs application, I will make directions in Chambers for filing of written submissions in advance of oral argument AND IT IS DIRECTED that my Chambers allocate a date for hearing (estimated to take 1 hour) which, as far as practicable, accommodates the availability of Counsel.
19. That all applications and responses be otherwise dismissed and the matter be removed from the docket of the Honourable Justice Bennett.
THE COURT NOTES THAT:
A. Pursuant to section 90ST of the Family Law Act 1975 (Cth) the parties agree that these orders shall as far as practicable finalise their financial relationship and avoid any further proceedings between them.
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 Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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