FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marinos & Marinos [2023] FedCFamC2F 1659
File number(s): ADC 3085 of 2022 Judgment of: JUDGE KELLY Date of judgment: 20 December 2023 Catchwords: FAMILY LAW – Property – weight to be attached to contributions – future needs Legislation: Family Law Act 1975 (Cth) ss.75(2), 79, 117 Cases cited: Bevan & Bevan [2013] FamCAFC 116
Borriello and Borriello (1989) FLC 92-04
Hickey & Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143
In the Marriage of Pierce [1998] FamCA 74
Jabour v Jabour [2019] FamCAFC 78
Rosati v Rosati [1998] FamCA 38
Stanford & Stanford (2012) 247 CLR 108
Watson & Ling [2013] FamCA 57
Division: Division 2 Family Law Number of paragraphs: 108 Date of last submission/s: 21 November 2023 Date of hearing: 25-26 October 2023 Place: Adelaide Solicitor for the Applicant: Di Rosa Lawyers Counsel for the Applicant: Mr J Bowler The Respondent: In Person ORDERS
ADC 3085 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MARINOS
Applicant
AND: MS MARINOS
Respondent
ORDER MADE BY:
JUDGE KELLY
DATE OF ORDER:
20 DECEMBER 2023
THE COURT ORDERS THAT:
In full and final settlement of all claims between the parties for settlement of property:
1.The wife shall pay to the husband no later than sixty days from the date of this Order the sum of $648,858.00 together with the sum of $500.00 in accordance with the costs order pronounced on 14 June 2023, totalling $649,358.00 (“the settlement sum”).
2.Simultaneous with payment of the settlement sum, the husband shall transfer to the wife his right, title and interest in the property located at B Street, Suburb C in the State of Australia, being the whole of the land comprised in Certificate of Title Register Book Volume … Folio … (“the B Street property”).
3.Simultaneous with Orders 1 and 2, the wife shall discharge or refinance into her sole name and at her expense the Mortgage secured upon the B Street property.
4.Subject to any specific term of these Orders, the husband is entitled to retain for his sole use and benefit absolutely the following:
(a)The settlement sum;
(b)His separate savings;
(c)Motor Vehicle 1 and Motor Vehicle 2;
(d)His furnishings and personal effects;
(e)His remaining interest in Super Fund 1.
5.Subject to any specific terms of the Orders the wife is entitled to retain for her sole use and benefit absolutely the following:
(a)The B Street property;
(b)The property located at D Street, Suburb C in the State of South Australia being the whole of the land comprised in Certificate of Title Register Book Volume … Folio … (“the D Street property”);
(c)Her separate savings;
(d)Motor Vehicle 3;
(e)Motor Vehicle 4;
(f)Her furniture and personal effects;
(g)Her jewellery;
(h)Her interest in Super Fund 2;
(i)Her entitlement pursuant to the superannuation splitting order.
6.Except as otherwise provided for in these Orders, each party shall be solely responsible for any debt in their sole name and release the other party…
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CaseChat Overview and Summary
The court considered the contributions made by each party to the relationship, including both financial and non-financial contributions. The court also took into account the future needs of each party, including their age, health, and capacity to support themselves. The court noted that the parties had made significant contributions to the relationship, but that the husband had made a greater financial contribution. The court also noted that the wife had made significant contributions to the relationship in terms of homemaking and child-rearing.
The court ordered that the wife pay the husband a settlement sum of $649,358.00, and that the husband transfer his interest in a property located at B Street to the wife. The court also ordered that the wife discharge or refinance a mortgage secured on the B Street property into her sole name. The court made specific orders regarding the division of other assets, including motor vehicles, savings, and superannuation. The court also made orders regarding the calculation and payment of any capital gains tax debt that may arise from the sale of a property located at D Street.
The court's orders provide for a detailed and comprehensive division of the parties' assets and liabilities, taking into account the various factors set out in the Family Law Act. The orders provide for the payment of a significant settlement sum to the husband, as well as the transfer of a property to the wife. The court's orders also provide for the calculation and payment of any capital gains tax debt that may arise from the sale of another property. Overall, the court's orders reflect a careful and considered assessment of the parties' contributions and future needs, and provide for a fair and equitable division of their assets and liabilities.
Orders
Orders of the court
ADC 3085 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MARINOS
Applicant
AND:
MS MARINOS
Respondent
ORDER MADE BY:
JUDGE KELLY
DATE OF ORDER:
20 DECEMBER 2023
THE COURT ORDERS THAT:
In full and final settlement of all claims between the parties for settlement of property:
1. The wife shall pay to the husband no later than sixty days from the date of this Order the sum of $648,858.00 together with the sum of $500.00 in accordance with the costs order pronounced on 14 June 2023, totalling $649,358.00 (“the settlement sum”).
2. Simultaneous with payment of the settlement sum, the husband shall transfer to the wife his right, title and interest in the property located at B Street, Suburb C in the State of Australia, being the whole of the land comprised in Certificate of Title Register Book Volume … Folio … (“the B Street property”).
3. Simultaneous with Orders 1 and 2, the wife shall discharge or refinance into her sole name and at her expense the Mortgage secured upon the B Street property.
4. Subject to any specific term of these Orders, the husband is entitled to retain for his sole use and benefit absolutely the following:
(a) The settlement sum;
(b) His separate savings;
(c) Motor Vehicle 1 and Motor Vehicle 2;
(d) His furnishings and personal effects;
(e) His remaining interest in Super Fund 1.
5. Subject to any specific terms of the Orders the wife is entitled to retain for her sole use and benefit absolutely the following:
(a) The B Street property;
(b) The property located at D Street, Suburb C in the State of South Australia being the whole of the land comprised in Certificate of Title Register Book Volume … Folio … (“the D Street property”);
(c) Her separate savings;
(d) Motor Vehicle 3;
(e) Motor Vehicle 4;
(f) Her furniture and personal effects;
(g) Her jewellery;
(h) Her interest in Super Fund 2;
(i) Her entitlement pursuant to the superannuation splitting order.
6. Except as otherwise provided for in these Orders, each party shall be solely responsible for any debt in their sole name and release the other party from any such debt or claim.
Non compliance
7. In the event the wife fails to pay to the husband the said settlement sum in accordance with Order 1, then the husband shall notify her in writing that she is in default (“the default notice”);
(a) in that event the parties shall do all acts and things necessary to place the D Street property on the market for sale with a real estate agent to be agreed between them within 14 days of the default notice, and failing agreement, with an agent to be nominated by the President of the Real Estate Institute of South Australia;
(b) The property shall be listed for sale at a price to be agreed between the parties within seven (7) days or in default of agreement, at a selling price set by the nominated real estate agent; and
(c) the wife shall do all acts and things and sign all documents as may be necessary to finalise sale of the D Street property.
8. In the event the D Street property is sold to give effect to these orders, then each party shall be responsible for one half of any capital gains tax debt (“the CGT debt”) that follows.
9. The parties do all things necessary to instruct the wife’s accountant (or if unavailable, then an accountant otherwise agreed between the parties) to calculate the anticipated CGT debt likely to arise from the sale of the D Street property, noting that the husband’s solicitors are authorised to liaise directly with the wife’s accountant or other agreed accountant in this regard.
10. Upon the D Street property being sold the net proceeds of sale shall be distributed as follows:
(a) In discharge of any outstanding council and water rates;
(b) In discharge of the Real Estate’s agent’s proper commission arising from the sale;
(c) In payment of all proper legal costs and expenses arising from the sale;
(d) In payment to the husband in the sum of $649,358, plus interest, and less an amount equal to one half of the anticipated CGT debt, such sum to be held in the husband’s solicitor’s trust account, pending the final calculation of the capital gains tax;
(e) The balance then remaining to the wife.
11. Upon final calculation of the CGT debt the husband’s solicitors shall release an amount equal to one half of the amount calculated to the wife, with any balance remaining to be released to the husband. In the event the funds held by the husband’s solicitors are insufficient to meet the husband’s one half share, then he shall pay the balance outstanding to the wife within 14 days.
Superannuation Splitting Order
12. The following shall apply to the husband’s interest in Super Fund 1 (“the said Fund”):
(a) The base amount of $36,864 is allocated pursuant to s.90XT(4) to the wife out of the husband’s interest in the said fund;
(b) In accordance with s.90XT(1)(a):
(i) The wife is entitled to be paid the amount calculated pursuant to Part XI of the Family Law Act (Superannuation) Regulations 2001 (Cth).
(ii) There will be a corresponding reduction in the husband’s entitlement to the said Fund.
(c) The Trustee of the said Fund must comply with the obligations imposed upon Trustees of eligible Superannuation Funds under the Act and the Family Law (Superannuation) Regulations 2001 (Cth).
13. Paragraphs 12(a) – (c) herein bind the Trustee of the said Fund and take effect from the operative time being the fourth business day after service of a copy of the sealed Orders upon the Trustee.
14. The wife serve a certified copy of the sealed Orders upon the Trustee as soon as practicable and thereafter sign all documents as may be necessary to implement the roll over or transfer of her transferrable benefits out of the Applicant’s interest into a superannuation fund of the wife’s choosing.
15. In the event either party refuses or neglects to execute any deed or instrument within 14 days of being requested to do so by the other party or by the Real Estate agent, then a Judicial Registrar be appointed pursuant to s.106A of the Family Law Act (1975) (Cth) to execute such deed or instrument on behalf of that party and do all acts and things necessary to implement the deed or instrument.
16. The proceedings are dismissed as finalised.
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.
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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