FEDERAL CIRCUIT COURT OF AUSTRALIA
| LONG & LONG | [2015] FCCA 1443 |
| Catchwords: FAMILY LAW – Property settlement – consideration of initial contributions financial and non-financial – consideration of post separation contribution and future obligations – distinction between immediately realisable assets and superannuation entitlements. |
| Legislation: Family Law (Superannuation) Regulations 2001, Part 6 |
| Pastrikos and Pastrikos (1980) FLC 91-987 Stanford and Stanford Lots of Questions – Very Few Answers, Martin Barfeld QC of the Victorian Bar |
| Applicant: | MS LONG |
| Respondent: | MR LONG |
| File Number: | PAC 4450 of 2012 |
| Judgment of: | Judge Coker |
| Hearing date: | 14 April 2015 |
| Date of Last Submission: | 15 April 2015 |
| Delivered at: | Townsville |
| Delivered on: | 28 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Brian Kelly |
| Solicitors for the Applicant: | Fowler Predny Solicitors |
| Respondent: | In person |
ORDERS
BY WAY OF FINAL PROPERTY SETTLEMENT:
That the Husband pay to the Wife the sum of $463,200 within 60 days of the date of this Order.
That the Husband arrange refinancing of any joint debt attaching to the property situate at Property Q, in the State of New South Wales and being the whole of the land contained in Folio Identifier (omitted), (hereinafter referred to as “the property”) and release the Wife from any liability within 60 days of the date of this Order.
That the Husband be responsible for the preparation of all necessary documents to effect the terms of Orders 1 and 2 and that each party do all things and sign all documents necessary to effect such terms.
That in the event of payment as required by Order 1 not being made, then and in that event, the Husband and Wife forthwith do all acts and things and sign all documents so as to cause the property situate at and known as Property Q, in the State of New South Wales and being the whole of the land contained in Folio Identifier (omitted) to be listed for sale and as to such sale the following provisions apply:
(a)The sale be by way of public auction.
(b)The parties agree upon an estate agent and, failing agreement, the husband to nominate three agents who conduct business within a 5km radius of Property Q and the Wife to select one of those real estate agents.
(c)The reserve price for the purpose of any such auction be such as the parties agree, or failing agreement at a price determined by the auctioneer.
(d)Any offer within Ten Thousand…
Continue reading LONG & LONG
Sign in free to access the full text
- AGLC
- Long and Long [2015] FCCA 1443
- Case
- [2015] FCCA 1443
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of the final property settlement, including the payment of a sum of money by the husband to the wife, the refinancing of joint debts, and the potential sale of a jointly owned property. Further, the court was required to make orders concerning the husband's superannuation interests, including the allocation of a base amount to the wife from his superannuation fund and the process for splitting payments and rollovers, as well as orders relating to a self-managed superannuation fund.
The court ordered that the husband pay the wife $463,200 within 60 days and arrange refinancing of joint debt on their property, releasing the wife from liability. If payment was not made, the property was to be listed for sale by public auction, with specific provisions regarding agent selection, reserve price, and acceptance of offers. The net proceeds of sale were to be divided with 60% to the wife and the balance to the husband. The court also made detailed orders regarding the husband's superannuation, allocating a base amount of $30,000 to the wife from his interest in a superannuation fund and specifying the process for payment splits and rollovers, binding the trustees of the fund. Additionally, orders were made concerning a self-managed superannuation fund, requiring the husband and wife to take steps to facilitate the wife's resignation as a director and member of the fund, and the transfer of her shares in the trustee to the husband.
Orders
Orders of the court
BY WAY OF FINAL PROPERTY SETTLEMENT:
1.
That the Husband pay to the Wife the sum of $463,200 within 60 days of the date of this Order.
2.
That the Husband arrange refinancing of any joint debt attaching to the property situate at Property Q, in the State of New South Wales and being the whole of the land contained in Folio Identifier (omitted), (hereinafter referred to as “the property”) and release the Wife from any liability within 60 days of the date of this Order.
3.
That the Husband be responsible for the preparation of all necessary documents to effect the terms of Orders 1 and 2 and that each party do all things and sign all documents necessary to effect such terms.
4.
That in the event of payment as required by Order 1 not being made, then and in that event, the Husband and Wife forthwith do all acts and things and sign all documents so as to cause the property situate at and known as Property Q, in the State of New South Wales and being the whole of the land contained in Folio Identifier (omitted) to be listed for sale and as to such sale the following provisions apply:
(a) The sale be by way of public auction.
(b) The parties agree upon an estate agent and, failing agreement, the husband to nominate three agents who conduct business within a 5km radius of Property Q and the Wife to select one of those real estate agents.
(c) The reserve price for the purpose of any such auction be such as the parties agree, or failing agreement at a price determined by the auctioneer.
(d) Any offer within Ten Thousand Dollars ($10,000.00) of the reserve price be accepted by the parties.
(e) The Solicitor for the Wife shall have carriage of the sale.
5.
That the parties contribute equally to the cost of conducting the said auction sale.
6.
That pending completion of the sale of the property the Husband shall ensure that the property remains in a good and tenantable condition, fair wear and tear excepted and having regard to its state and condition as at the date hereof.
7.
That pending the sale of the property the Husband shall be responsible for all maintenance and outgoings in respect of the property, including payment of all rates and taxes on the property and payment of any home loan and mortgage debt secured over the property.
8.
In the event of any damage or deterioration in the condition of the property (fair wear and tear excepted) the Husband shall forthwith rectify or otherwise make good such damage or deterioration. Nothing within this order shall be deemed to impose upon the Husband any duty to render any improvements to the property having regard to its state and condition as at the date of these orders and this provision shall only apply as to direct deterioration other than fair wear and tear.
9.
The net proceeds of the sale after deduction of agent’s commission, discharge of mortgage, legal costs and fees on the sale, adjustment of rates and taxes and all other expenses which may be reasonably incurred in respect of the sale be divided as follows:
(a) As to 60% thereof to the Wife.
(b) As to the balance then remaining to the Husband.
10.
That save for the division of assets hereinbefore provided, each party be declared the sole beneficial owner of the motor vehicles, any other monies, furniture and chattels in his or her respective possession as at the date of these orders.
SUPERANNUATION:
11.
Paragraphs 11 to 19 of these orders are binding on the trustees of the (omitted) Super Trust (the fund).
12.
That in accordance with S.90MT(4) of the Family Law Act 1975, a base amount of Thirty Thousand Dollars ($30,000.00) (the base amount) is allocated to the Wife out of the Husband’s interest in (omitted) Superannuation being a sub-plan of the (omitted) Super Trust.
13.
Pursuant to s.90MT (1)(a) Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest of the Husband in the fund, the Wife is entitled to be paid an amount calculated in accordance with Part 6 Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the Husband.
14.
That the Trustee of the (omitted) Super Trust (“the trustee”) shall 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 Family Law Act 1975 the entitlement awarded to the Wife in the immediately preceding clause of this Order; and
(b) pay the entitlement whenever the trustee makes a splittable payment from the Husband’s interest in the (omitted) Super Trust.
15.
That this order has effect from the operative time and the operative time is the beginning of the fourth day upon which this order is made.
16.
That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1999 (“the SIS Regulations”), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Wife’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 Wife’s choosing in accordance with the SIS Regulations.
17.
Until such time as the superannuation split to the Wife pursuant to these orders can be rolled over into a separate account to the Wife:
(a) The Husband will give to the wife written notice not less than 28 days before such time as they elect to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the fund;
(b) The Husband will direct and authorize the trustee of the fund to communicate with the Wife and/or any person authorized by her in writing:
(i) To answer any reasonable inquiries as may be made by her or on her behalf from time to time regarding her entitlement in the fund; and
(ii) To give to the Wife and/or her authorized representative a copy of any notice of any application or request by the husband which seeks release of entitlements in the fund in so far as that release may affect the Wife’s entitlement in the fund pursuant to these orders; and
(c) The Husband or his servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the Wife, her heirs, executors, administrators or nominees from receiving the benefits in the fund to which she is entitled pursuant to these orders.
18.
In the event that the superannuation split to the Wife pursuant to these orders can be rolled over into a separate account to the Wife each of the parties will each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
19.
There be liberty to each party and the trustee of the fund to apply regarding the implementation of these orders affecting the interests of the Husband and the Wife in the fund.
SUPERANNUATION (SELF MANAGED FUND)
20.
Paragraph 21 of these orders is binding on the trustees of the (omitted) superannuation fund (the fund).
21.
That the Husband and the Wife do all such acts and things and sign all such documents, including but not limited to the signing of trustee minutes, to effect the resignation of the Wife as a director of the trustee or to transfer to the Husband from the Wife her shares in the trustee, and for the Wife to resign as a member of the fund.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.