Macrina & Macrina

Case [2021] FedCFamC2F 387


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Macrina & Macrina [2021] FedCFamC2F 387

File number(s): ADC 862 of 2019
Judgment of: JUDGE DICKSON
Date of judgment: 17 November 2021
Catchwords: FAMILY LAW – property – interim property settlement – interim spousal maintenance – where parties have been separated for four years – where wife has been residing in rental property since 2017 – where husband has been living in freehold property – where husband has had control of the bulk of the matrimonial assets – where husband has been paying spousal maintenance to the wife pursuant to orders of this Honourable Court – where wife brings application for interim release of funds to purchase a house for her to reside in – where it is just and equitable for the wife to receive an interim distribution – where no final hearing date is set.
Legislation: Family Law Act 1975 (Cth) Part VIII ss 80(1)(h), 79
Cases cited:

Amstel & Amstel [2015] FamCA 661

Felice & Felice [2011] FamCA 162

Gabel & Yardley [2008] FamCAFC 162

Marshall& Marshall [2015] FamCA 712

Sresbodan & Sresbodan & Ors [2013] FamCA 480

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

Division: Division 2 Family Law
Number of paragraphs: 97
Date of hearing: 13 October 2021
Place: Adelaide
Counsel for the Applicant: Ms Lewis
Solicitor for the Applicant: Mellor Olsson
Counsel for the Respondent: Mrs Read
Solicitor for the Respondent: Scammell & Co

ORDERS

ADC 862 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MACRINA

Applicant

AND:

MR MACRINA

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

17 NOVEMBER 2021

THE COURT ORDERS:

1.That no later than 22 December 2021 and by way of partial property settlement the Husband do pay to the Wife the sum of SEVEN HUNDRED THOUSAND DOLLARS AND ZERO CENTS ($700,000.00) (‘the said sum’).

2.That in the event that the Husband fails to comply with paragraph 1 herein:

(a)The parties shall forthwith do all such things and shall execute all documents necessary to:

(i)Apply funds currently held in the names of the parties in B Bank Account Number …74 towards the discharge of the B Bank Mortgage number …74 and/or the B Bank line of credit Account Number …59; and

(ii)Apply such funds that may be necessary (such funds currently held in the Scammell & Co Trust Account representing the proceeds of sale of the business known as ‘C’) towards the discharge of the B Bank mortgage number …50 and/or the B Bank line of credit Account Number …59; and

(iii)Place upon the market for sale by private treaty with such agent as agreed in writing and upon such terms as are agreed (and in default of agreement as to sale by private treaty within 14 days then by public auction) the property known as and situated at D Street, Suburb E in the State of South Australia being the whole of the land comprised and described in Certificate Register Book…

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Macrina & Macrina [2021] FedCFamC2F 387
Case
[2021] FedCFamC2F 387
Decision Date

CaseChat Overview and Summary

Ms Macrina brought an application in the Family Court of Australia for an interim property settlement and spousal maintenance against Mr Macrina. The applicant and respondent were married for 21 years and separated in 2017. The applicant has been residing in rental property since the separation and the respondent has been living in a freehold property. The applicant sought an interim distribution of property and spousal maintenance pending the finalisation of the proceedings. The court was required to consider whether it was just and equitable to make an interim distribution of property and spousal maintenance to the applicant.

The court found that it was just and equitable to make an interim distribution of property to the applicant. The court held that the applicant had a need for separate accommodation and it was in the best interests of any children of the marriage that the applicant have suitable accommodation. The court also found that it was appropriate to make an order for spousal maintenance to the applicant pending the finalisation of the proceedings. The court ordered that the respondent pay the applicant $700,000 by 22 December 2021. If the respondent failed to make the payment, the court ordered that the respondent sell a property at D Street, Suburb E, and apply the proceeds towards the payment. The court also ordered that the respondent indemnify the applicant in relation to any tax liability arising from the distributions. The court dismissed all other interim applications.

The court made orders for an interim property settlement and spousal maintenance to the applicant. The court ordered that the respondent pay the applicant $700,000 by 22 December 2021. If the respondent failed to make the payment, the court ordered that the respondent sell a property at D Street, Suburb E, and apply the proceeds towards the payment. The court also ordered that the respondent indemnify the applicant in relation to any tax liability arising from the distributions. The court dismissed all other interim applications.

Orders

Orders of the court

ADC 862 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MACRINA

Applicant

AND:

MR MACRINA

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

17 NOVEMBER 2021

THE COURT ORDERS:

1. That no later than 22 December 2021 and by way of partial property settlement the Husband do pay to the Wife the sum of SEVEN HUNDRED THOUSAND DOLLARS AND ZERO CENTS ($700,000.00) (‘the said sum’).

2. That in the event that the Husband fails to comply with paragraph 1 herein:

(a) The parties shall forthwith do all such things and shall execute all documents necessary to:

(i) Apply funds currently held in the names of the parties in B Bank Account Number …74 towards the discharge of the B Bank Mortgage number …74 and/or the B Bank line of credit Account Number …59; and

(ii) Apply such funds that may be necessary (such funds currently held in the Scammell & Co Trust Account representing the proceeds of sale of the business known as ‘C’) towards the discharge of the B Bank mortgage number …50 and/or the B Bank line of credit Account Number …59; and

(iii) Place upon the market for sale by private treaty with such agent as agreed in writing and upon such terms as are agreed (and in default of agreement as to sale by private treaty within 14 days then by public auction) the property known as and situated at D Street, Suburb E in the State of South Australia being the whole of the land comprised and described in Certificate Register Book Volume … Folio … (‘the D Street, Suburb E property’);

3. The proceeds of sale of the said D Street, Suburb E property be dispersed as follows:

(a) To pay all land agent fees and charges;

(b) To pay all conveyancers fees and charges;

(c) The sum of $700,000 to the Wife; and

(d) The balance (if any) to be held in an interest being account in the joint names of the parties until further order.

4. The Husband as Trustee of the Macrina Trust be at liberty to allocate distributions of the Macrina Trust to the Wife.

5. The Husband do indemnify the Wife and keep her indemnified in relation to any distribution made to the Wife in accordance with paragraph 4 herein and the Husband do pay and further do indemnify and keep the Wife indemnified in respect of any tax liability incurred by the Wife arising from any such distributions.

6. That in the event that the parties fail to agree a sales agent for the sale of the said D Street, Suburb E property within forty-nine (49) days of the date hereof, then the Secretary of the Real Estate Institute shall appoint a sales agent upon the written request of either party via their solicitor.

7. That in the event of either party refusing, failing or neglecting to sign any document necessary to implement the terms of the orders made in paragraphs 2 and 3 herein, then pursuant to s 106A of the Family Law Act 1975 (Cth) (as amended), a Deputy Registrar or Judicial Registrar of this Honourable Court is appointed to sign all or any such documents necessary upon proof by affidavit of such refusal, failure or neglect.

8. All interim applications do otherwise stand dismissed.

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.

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