Linssen and Linssen

Case [2019] FCCA 1225


FEDERAL CIRCUIT COURT OF AUSTRALIA

LINSSEN & LINSSEN [2019] FCCA 1225
Catchwords:
FAMILY LAW – Property settlement – long marital relationship – consideration of Kennon in the context of family violence – relevance of husband’s ill health and limited life expectancy – where wife in receipt of disability pension – consideration of two pools.
Legislation:
Family Law Act 1975, ss.72(1), 75(2), 79(2), 79(4)
Family Law (Superannuation) Regulations 2001 (Cth)

Cases cited:
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Campbell v Superannuation Complaints Tribunal [2016] FCA 808
In the Marriage of Hickey [2003] FamCA 395
Jurlina & Jurlina [2014] FamCA 284

Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757

Mallet v Mallet (1984) 156 CLR 605
Menzies & Evans & Evans (1988) FLC 91-969
Morcomb & Lennox [2016] FCCA 485
Norbis v Norbis [1986] HCA 17; 161 CLR 513
Re Lawrie & Lawrie (1981) FLC 91-102
Simpson & Simpson [2014] FamCA 521
Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 47 Fam LR 481; [2012] HCA 52
Tasmanian Trustees Ltd v Gleeson (1990) 14 Fam LR 189

Applicant: MR LINSSEN
Respondent: MS LINSSEN
File Number: MLC 9069 of 2018
Judgment of: Judge Mercuri
Hearing dates: 18 and 19 September 2018
Date of last submission: 19 September 2018
Delivered at: Melbourne
Delivered on: 15 May 2019

REPRESENTATION

Counsel for the applicant: Mr Williams
Solicitors for the applicant: Pearsons Lawyers
Counsel for the respondent: Ms Teicher
Solicitors for the respondent: Davies Moloney

ORDERS

  1. That the wife shall pay to the husband the sum of $560,000
    (“the payment”) within 30 days of the date of the orders being made (“the date”).

  2. That contemporaneously with the payment:

    (a)the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the wife’s expense, all of his right, title and interest in the real property situate at and known as Property A (“Property A”); and

    (b)the wife shall otherwise be solely liable for and indemnify the husband against all rates, taxes, and outgoings of or with respect to Property A of whatsoever nature and kind.

  3. That in the event the whole of the payment has not been made by the date, the parties forthwith do all acts and things and sign all documents necessary to place Property A on the market for sale on terms and conditions as agreed between the parties and in the absence of agreement as determined by a real estate agent nominated by the President of the Real Estate Institute of Victoria (REIV) (“the sale”).

  4. That upon completion of the sale of Property A the proceeds be divided as follows:

    (a)firstly, to pay the agent all costs, commissions and expenses of the sale and legal costs including disbursements; and

    (b)secondly, the balance to be divided:

    (i)60% to the wife; and

    (ii)40% to the husband.

  5. That pending the transfer or settlement of the sale of Property A:

    (a)the wife shall…

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Linssen and Linssen [2019] FCCA 1225
Case
[2019] FCCA 1225
Decision Date

CaseChat Overview and Summary

In *Linssen and Linssen*, the wife was ordered to pay the husband $560,000 within 30 days. Contemporaneously with this payment, the husband was to transfer his interest in a property known as Property A to the wife at her expense. The wife was to be solely liable for all rates, taxes, and outgoings related to Property A. Should the payment not be made by the due date, Property A was to be placed on the market for sale, with the proceeds to be divided 60% to the wife and 40% to the husband after sale costs. Pending transfer or sale, the wife was to have sole use and occupation of Property A, responsible for its outgoings, insurance, and maintenance.

The court was required to determine the division of the parties' financial resources, including real property and superannuation interests, with the intention of finally determining their financial relationship. This involved making orders regarding the transfer of property, payment of money, and the division of superannuation entitlements. The court also had to address the liabilities and debts associated with the property and other assets retained by each party.

The court applied principles of property adjustment under the *Family Law Act 1975* (Cth). It ordered a significant payment from the wife to the husband, coupled with the transfer of the husband's interest in Property A to the wife, effectively achieving a financial settlement. A specific provision was made for the division of superannuation, with the husband entitled to a calculated amount from the wife's superannuation interest in Super Fund B, pursuant to section 90MT(1)(a) of the Act and the relevant Regulations. The orders also stipulated that each party would retain other specified assets and be solely liable for associated debts, with a general provision for the division of joint bank accounts and the severance of any joint tenancies.

Orders

Orders of the court

1.

That the wife shall pay to the husband the sum of $560,000

(“the payment”) within 30 days of the date of the orders being made (“the date”).

2.

That contemporaneously with the payment:

(a) the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the wife’s expense, all of his right, title and interest in the real property situate at and known as Property A (“Property A”); and

(b) the wife shall otherwise be solely liable for and indemnify the husband against all rates, taxes, and outgoings of or with respect to Property A of whatsoever nature and kind.

3.

That in the event the whole of the payment has not been made by the date, the parties forthwith do all acts and things and sign all documents necessary to place Property A on the market for sale on terms and conditions as agreed between the parties and in the absence of agreement as determined by a real estate agent nominated by the President of the Real Estate Institute of Victoria (REIV) (“the sale”).

4.

That upon completion of the sale of Property A the proceeds be divided as follows:

(a) firstly, to pay the agent all costs, commissions and expenses of the sale and legal costs including disbursements; and

(b) secondly, the balance to be divided:

(i) 60% to the wife; and

(ii) 40% to the husband.

5.

That pending the transfer or settlement of the sale of Property A:

(a) the wife shall continue to have the sole use and occupation of Property A and during such right of occupation she shall:

(i) meet all of the outgoings of and with respect to Property A including rates;

(ii) keep Property A insured against loss and damage at all times and provide proof of same to the husband’s lawyers upon request; and

(iii) maintain Property A in a good and reasonable state of repair and condition at all times;

(b) the parties hold their interest in Property A on trust pursuant to these orders; and

(c) neither party encumber Property A without the other party’s written consent or order of the Court first obtained.

6.

That paragraphs 7 to 8 inclusive of these orders are binding on the Super Fund B (“the Trustee”) as Trustee of the Super Fund B Scheme (“the Scheme”).

7.

That pursuant to section 90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the wife’s interest in the Scheme, the husband shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount of $343,500 (provided that such base amount shall not exceed the value of the interest determined under section 90MT(2)) and there be a corresponding reduction in the entitlement of the wife to whom the splittable payment would have been made but for these orders.

8.

That order 7 has effect from the operative time and that the operative time for such order be four (4) business days after the service of a sealed copy of these orders on the Trustee.

9.

That the Trustee of the Scheme, in accordance with the obligations set out under the Act and the Regulations, do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of the husband and make payment to the husband in accordance with these orders.

10.

That there be liberty to apply to each party and the Trustee in relation to the implementation of the orders affecting the superannuation interest.

11.

That the wife shall retain for her sole and exclusive use, enjoyment and benefit all other items of property (both real and personal and including choses-in-action and financial resources) in her name possession and/or control including but not limited to:

(a) her bank accounts and savings;

(b) her Motor Vehicle C;

(c) the furniture and household contents in Property A;

(d) her superannuation entitlements save for the superannuation split provided in these orders; and

(e) her personal belongings and effects.

12.

That the wife shall be solely liable for and indemnify the husband in relation to all debts and liabilities in her name or attaching to any item of property which she is to retain pursuant to these orders.

13.

That the husband shall retain for his sole and exclusive use, enjoyment and benefit all other items of property (both real and personal and including choses-in-action and financial resources) in his name possession and/or control including but not limited to:

(a) his bank accounts and savings;

(b) his Motor Vehicle D;

(c) his superannuation entitlements including the superannuation split provided in these orders; and

(d) his personal belongings and effects.

14.

That the husband shall be solely liable for and indemnify the wife in relation to all debts and liabilities in his name or attaching to any item of property which he is to retain pursuant to these orders.

15.

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 be solely entitled to the exclusion of the other to all other real and personal property (including choses-in-action and shares) registered in the name of or in possession of such party, or to which that party is legally or beneficially entitled, as at the date of these orders;

(b) monies standing to the credit of the parties in any joint bank account are to be divided equally and the account closed;

(c) each party retain for their sole use and benefit any superannuation or employment benefits accrued in their sole name save and except for the superannuation split provided in these orders;

(d) insurance policies remain the sole property of the owner named thereon;

(e) each party shall be solely liable for and indemnify the other against any liability/ies in their name or encumbering any item of property to which that party is entitled pursuant to these orders; and

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

AND THE COURT NOTES THAT:

(A) Pursuant to section 81 of the Family Law Act 1975 (Cth) the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

(B) Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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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