FAMILY COURT OF AUSTRALIA
| LAVELL & LAVELL | [2012] FamCA 34 |
| FAMILY LAW – PROPERTY – Where there are significant issues as to each party’s credit – Where the wife admitted giving false evidence in her affidavit – Where the husband has failed to adduce evidence regarding his interest, if any, in a foreign trust – Whether the rules in Jones v Dunkel applies – Consideration of the rule in Blatch v Archer – Where relatively short marriage – Where the parties lived off husband’s pension paid from his self-managed super fund – Where the parties spent the majority of their relationship travelling overseas, using the husband’s resources – Where the circumstances of the case are such that neither a “global approach” nor an “asset-by-asset” approach is suitable –Where the wife’s assets have increased and the husband’s have decreased as a result of the marriage –Where s 75(2) factors favour the husband – Where an order that the parties retain the property they currently hold and the wife transfer $100,000 from her superannuation interest into the husband’s just and equitable in the circumstances. FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where the wife issued a subpoena to the husband’s accountancy firm – Where the wife provided $43 by way of conduct money – Where the accountant seeks in excess of $4000 for “loss” and “expense” incurred as a result of compliance with the subpoena – Whether an order should be made pursuant to r 15.23(3) of the Family Law Rules – Where the expenses claimed are “substantial” – Whether the expenses sought are “reasonable” – Where recompense envisaged by r 15.23 is not what the firm would charge for the work involved – Where $1000 represents adequate recompense for the loss or “expense” incurred by the accountancy firm as a result of compliance with the wife’s subpoena. |
| Evidence Act 1995 (Cth) |
| Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 LexisNexis Butterworths, Cross on Evidence. |
| APPLICANT: | Mr Lavell |
| RESPONDENT: | Ms Lavell |
| FILE NUMBER: | BRC | 1571 | of | 2010 |
| DATE DELIVERED: | 3 February 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 1 & 2 September 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Small Myers Hughes |
| COUNSEL FOR THE APPLICANT: | Mr George |
| SOLICITOR FOR THE RESPONDENT: | Bridges Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Hamwood |
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- Lavell & Lavell [2012] FamCA 34
- Case
- [2012] FamCA 34
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was how to achieve a just and equitable division of the parties' property, specifically addressing the wife's superannuation interest in light of the husband's claim. The court was required to determine the appropriate allocation of this significant asset within the overall property settlement.
Murphy J ordered that the wife's superannuation interest in the M Superannuation Fund be subject to a splitting order, transferring $100,000 to the husband's interest in the same fund. Subject to this division, each party was to retain the property currently held by them to the exclusion of the other. To give effect to these orders, the parties were directed to file agreed minutes of order within 21 days. Additionally, the wife was ordered to pay $1,000 to P Accountants for loss and expense incurred due to compliance with the wife's subpoena.
Orders
Orders of the court
IT IS ORDERED THAT
1.
The wife’s superannuation interest in the M Superannuation Fund be subject to a splitting order that effects a transfer of $100,000 to the husband’s interest in same.
2.
Subject to paragraph 1, each of the parties shall retain the property currently held by them to the exclusion of the other party.
3.
So as to give effect to paragraphs 1 and 2, the parties shall, within 21 days of the date of this Order, file by way of joint communication forwarded by email to …justicemurphy@familycourt.gov.au agreed minutes of order.
4.
Within 21 days of the date of this Order, the wife shall pay $1000.00 to Managing Director of P Accountants pursuant to r 15.23(3) of the Family Law Rules 2004 for “loss” and “expense” incurred as a result of compliance with the wife’s subpoena filed 17 February 2011.
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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