Mannus and Mannus (No.3) - [2012] FMCAfam 990

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANNUS & MANNUS (NO.3)

[2012] FMCAfam 990

FAMILY LAW – Whether advance by husband’s father loan or gift – whether debts of business incurred after separation matrimonial debts.

Family Law Act 1975 (Cth), ss.75(2), 79, 81, 90MT
Family Law (Superannuation) Regulations 2001, r.14F
Superannuation Industry (Supervision) Regulations 1994, r.7A.06(1)

Hickey [2003] FLC 93-143
C v C [2005] FLC 93-220
Fosbery & Fosbery [2009] FamCAFC 51

Applicant:

MS MANNUS

Respondent:

MR MANNUS

File Number:

DGC 2358 of 2010

Judgment of:

Phipps FM

Hearing dates:

23 & 24 July 2012

Date of Last Submission:

24 July 2012

Delivered at:

Dandenong

Delivered on:

14 September 2012

REPRESENTATION

Counsel for the Applicant:

Ms Teicher

Solicitors for the Applicant:

Hayes & Associates

Counsel for the Respondent:

Mr Pinner

Solicitors for the Respondent:

Taylor Whelan & Whelan

ORDERS

That the net proceeds of sale of Property H be dispersed as follows:
(a)$27,000 to pay Goods and Services Taxation on the sale of Property H;
(b)$7,685.21 to pay [A] superannuation;
(c)The balance to the wife.
The wife retain the amount of $9,101 being the net proceeds of sale of the [omitted] business “The [M]”.
That on or before 31 October 2012 (“the date”) the husband pay the wife the amount of $28,090.77 (“the payment”).
That upon the husband paying the amount to the wife at the expense of the husband, the wife do all things necessary to transfer to him all her right, title and interest in the property situate at and known as Property S, Victoria.
That if the amount is not paid on or before the date the property be sold by an estate agent and in a manner agreed and if not agreed by a real estate agent appointed by the President of the Real Estate Institute of Victoria or his or her nominee and in a manner determined by the appointed real estate agent and the proceeds paid as follows:
(a)Firstly in payment of the costs and expenses of the sale;
(b)Secondly to discharge the mortgage and any other encumbrances over the property;
(c)Thirdly to discharge the Bendigo Bank loan of approximately $4,308;
(d)Fourthly to pay the amount to the wife;
(e)Lastly to pay the balance to the husband.
That the husband be solely responsible for payment of and indemnify the wife against liability for:
(a)The mortgage to Bendigo Bank over the property;
(b)The Bendigo Bank loan;
(c)The amounts owing to:
(i)         [L];
(ii)        [T];
(iii)       Origin Energy;
(d)Any income tax liability arising out of the [omitted] business “The [M]”.
That upon the wife transferring her interest in the property to the husband in accordance with paragraph 4 the husband and wife do all things necessary to discharge the mortgage over the property.
That the Court allocate, as required by s.90MT(4) of the Family Law Act 1975 (Cth), a base amount of $15,000 to the wife out of the husband’s interest in the [C] Super (Fund) ABN [1].
That pursuant to s.90MT(1)(a) of the Family Law Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mannus and Mannus (No.3)

Details

AGLC: MANNUS & MANNUS (NO.3) [2012] FMCAfam 990
Case: [2012] FMCAfam 990
Decision Date: 14 September 2012

CaseChat Overview and Summary

The case of Mannus and Mannus (No.3) was heard in the Family Court of Australia. The dispute between the husband and wife involved the division of their assets following their separation. Key issues included the allocation of the proceeds from the sale of certain properties and the division of superannuation benefits. The court had to decide on the distribution of the net proceeds from the sale of Property H and the [omitted] business “The [M]”, and how the superannuation interests should be divided. Additionally, the court needed to address the responsibility for various debts and liabilities.

The court carefully examined the financial circumstances of both parties and the assets available for distribution. It considered the wife’s entitlement to a share of the husband’s superannuation benefits under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001. The decision involved determining the specific amounts to be paid to each party, the allocation of liabilities, and the conditions under which certain assets would be transferred. The court also addressed the practical steps required for the implementation of the orders, including the rollover of superannuation benefits to a fund of the wife’s choosing.

The court issued comprehensive orders to ensure the fair division of assets and liabilities. The net proceeds from the sale of Property H were to be divided among Goods and Services Tax, superannuation, and the wife. The wife was to retain the proceeds from the sale of the business. The husband was required to make a lump sum payment to the wife, with conditions for the transfer of another property if the payment was not made. The court also addressed the allocation of the husband’s superannuation benefits, mandating the trustee to make specific payments to the wife and outlining the process for the rollover of superannuation interests. Each party was declared to have no interest in the property in the possession or name of the other, except as specified in the orders.

The final orders provided a detailed plan for the distribution of assets and liabilities, ensuring compliance with legislative requirements and the practical implementation of the court's decisions. The husband was required to meet specific financial obligations, and the wife was to take certain actions to facilitate the transfer of assets and interests. The court's decision provided clarity and a clear path forward for both parties in their post-separation financial arrangements.

Orders

Orders of the court

That the net proceeds of sale of Property H be dispersed as follows:

(a) $27,000 to pay Goods and Services Taxation on the sale of Property H;

(b) $7,685.21 to pay [A] superannuation;

The wife retain the amount of $9,101 being the net proceeds of sale of the [omitted] business “The [M]”.

That on or before 31 October 2012 (“the date”) the husband pay the wife the amount of $28,090.77 (“the payment”).

That upon the husband paying the amount to the wife at the expense of the husband, the wife do all things necessary to transfer to him all her right, title and interest in the property situate at and known as Property S, Victoria.

That if the amount is not paid on or before the date the property be sold by an estate agent and in a manner agreed and if not agreed by a real estate agent appointed by the President of the Real Estate Institute of Victoria or his or her nominee and in a manner determined by the appointed real estate agent and the proceeds paid as follows:

(a) Firstly in payment of the costs and expenses of the sale;

(b) Secondly to discharge the mortgage and any other encumbrances over the property;

(d) Fourthly to pay the amount to the wife;

(e) Lastly to pay the balance to the husband.

That the husband be solely responsible for payment of and indemnify the wife against liability for:

(a) The mortgage to Bendigo Bank over the property;

(b) The Bendigo Bank loan;

(i) [L];

(ii) [T];

(iii) Origin Energy;

(d) Any income tax liability arising out of the [omitted] business “The [M]”.

That upon the wife transferring her interest in the property to the husband in accordance with paragraph 4 the husband and wife do all things necessary to discharge the mortgage over the property.

That the Court allocate, as required by s.90MT(4) of the Family Law Act 1975 (Cth), a base amount of $15,000 to the wife out of the husband’s interest in the [C] Super (Fund) ABN [1].

That pursuant to s.90MT(1)(a) of the Family Law Act 1975 (Cth) whenever [C] Super Pty Ltd ABN [9], the trustee of the [C] Super (Fund) ABN [1] makes a splittable payment out of the husband’s interest in [C] Super (Fund) ABN [1], the trustee shall:

(a) Pay to the wife, or her administrators, executors, beneficiaries, heirs or assigns, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;

(b) Make a corresponding reduction in the entitlement the husband would have had in the [C] Super (Fund) ABN [1] but for this order.

10.

That order 7 has effect from the operative time.

11.

That the operative time for these orders is four business days after service of the final sealed orders on [C] Super Pty Ltd ABN [9].

12.

That the trustee of the [C] Super (Fund) ABN [1] shall do all such acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 (Cth) and Family Law (Superannuation) Regulations 2001, the trustee can calculate the entitlement of, and make payment to, the wife in accordance with order 5 of these orders.

13.

That the wife shall do all things necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer the transferable benefits out of the husbands interest in the [C] Super (Fund) ABN [1] to a fund of the wife’s choosing.

14.

That pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the husband’s superannuation interest made after the trustee has rolled over or transferred the transferable benefits to a fund of the wife’s choosing are not splittable payments.

15.

Save as set out in this order each party is declared to have no interest in property in the possession or name of the other party.

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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