FEDERAL CIRCUIT COURT OF AUSTRALIA
| McCANN & McCANN | [2013] FCCA 18 |
| Catchwords: FAMILY LAW – Property – long marriage – substantial assets of Husband prior to marriage – questions of ‘weight’ to assets brought to the marriage by the parties – Husband was ‘traditional’ breadwinner of family and Wife traditional Mother and home-maker – agreed equal contributions during marriage – agreed position of Wife to receive large former marital residence – most of the children reside with Husband – a principal asset relates to long-time business of Husband – application of Wife to re-open evidence. |
| Legislation: Evidence Act1995 (Cth), s.128 Family Law Act 1975 (Cth), ss.75(2), 75(2)(o), 79(2), 79(4) |
| Applicant: | MR MCCANN |
| Respondent: | MS MCCANN |
| File Number: | CAC 688 of 2011 |
| Judgment of: | Judge Neville |
| Hearing dates: | 22 & 23 March, 22 June, 5 & 19 September 2012 |
| Date of Last Submission: | 1 November 2012 |
| Delivered at: | Canberra |
| Delivered on: | 12 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Glover |
| Solicitors for the Applicant: | Farrell Lusher, Wagga Wagga |
| Counsel for the Respondent: | Mr S Gardiner |
| Solicitors for the Respondent: | Walsh & Blair, Wagga Wagga |
THE COURT ORDERS THAT
The Husband pay to the Wife, within sixty (60) days of the date of these orders, the sum of $90,000, such sum to be payable pursuant to Section 77A of the Family Law Act 1975;
The superannuation interests of the parties should be divided equally;
Within thirty (30) days of the date of these orders the Husband will do all acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the wife all his right title and interest in the…
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- McCANN & McCANN [2013] FCCA 18
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- [2013] FCCA 18
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CaseChat Overview and Summary
The court was required to determine the appropriate distribution of the parties' assets and liabilities. This involved considering the division of real property, including a property to be transferred to the wife and two properties to be transferred to the husband, as well as the division of a business and various motor vehicles. A significant issue was the equal division of the parties' superannuation interests and the specific steps required for the transfer and payment of entitlements from a self-managed superannuation fund. The court also had to address the indemnification of each party against specific liabilities, such as mortgages, bank overdrafts, rates, and taxes, associated with the transferred properties and business.
The court's reasoning, as reflected in the orders, involved a comprehensive allocation of assets and liabilities to achieve a final property settlement. The orders demonstrate an intention to provide each party with sole entitlement to specific assets and to clearly define their respective responsibilities for associated debts and outgoings. The detailed provisions regarding superannuation indicate a careful approach to ensuring the equitable division of these significant financial resources, including the transfer of entitlements and the appointment of a new trustee for the self-managed superannuation fund. The orders also included a general provision that, unless otherwise specified, each party was solely entitled to property in their possession and liable for any encumbrances on property they received.
Orders
Orders of the court
1.
The Husband pay to the Wife, within sixty (60) days of the date of these orders, the sum of $90,000, such sum to be payable pursuant to Section 77A of the Family Law Act 1975;
2.
The superannuation interests of the parties should be divided equally;
3.
Within thirty (30) days of the date of these orders the Husband will do all acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the wife all his right title and interest in the real property situate and known as Property P more particularly described as Lot (omitted) in Deposited Plan (omitted) (hereinafter referred to as “the real property”);
4.
The Wife indemnify the Husband against all rates, taxes and outgoings of or with respect to the property of whatsoever nature and kind.
5.
Within thirty (30) days of the date of these orders the Wife will do such acts and things and sign all such documents as may required to transfer to the Husband at the expense of the Husband all her right title and interest in the following
(a) Property B1 and Property B2, more particularly described in Lot (omitted) and Lot (omitted).
(b) the business, (omitted) trading as “(omitted)”;
(c) except as otherwise provided for in these orders, the self funded superannuation fund known as “ (omitted) Super Fund”.
6.
The Husband indemnify the Wife against all payments and liabilities pursuant to the mortgage to the (omitted) Bank registered number (omitted) and further mortgage to the (omitted) Bank registered number (omitted) (hereinafter referred to as “the mortgages”), the business overdraft facility with (omitted) Bank, and all rates, taxes and outgoings of or with respect to the real properties located at Property B1 and Property B2.
7.
The Husband as soon as possible do all necessary acts and things and sign all necessary documents to transfer to the Wife at the expense of the wife the Toyota (omitted) currently in the wife’s possession.
8.
The Wife as soon as possible do all necessary acts and things and sign all necessary documents to transfer to the Husband at the expense of the husband all interest in the:
Toyota; and
(motor bike),
currently in the possession of the Husband.
9.
Subject to any payment pursuant to Order 2 of these Orders, each of the Husband and Wife be entitled to their respective account balances in the (omitted) Super Fund (“the fund”) and in relation to the fund:-
(a) within thirty (30) days of the date of making these orders each of the Husband and Wife will do all acts and things and sign all documents and vote in favour of all resolutions to transfer or procure the transfer by the fund of the Wife’s superannuation entitlement (including the income as at 30 June 2011 on or after tax basis) to a retail fund or to another self managed fund as notified by the Wife in writing;
(b) within sixty (60) days of the transfer referred to in order 5(a) the Husband and Wife will do all acts and things and vote in favour of all resolutions to pay to the Wife’s new superannuation fund the additional sum being the balance of the Wife’s entitlement in the fund as at the date of roll out, together with interest thereon (on or after taxes accrued between 1 July 2011 and the date of these orders);
(c) thereafter the Wife will do all acts and things and sign all necessary documents submitted to her by the Husband so that she ceases to be a member of the said fund;
(d) simultaneously with the provisions of paragraph (a) and (c) being effected, the parties shall exercise their power of appointment to appoint a new trustee to the fund and shall agree that the trustee of the fund will no longer be Ms McCann and the Husband will indemnify the Wife against all liabilities attaching to the Fund.
10.
Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders:
(a) each party be solely entitled to the exclusion of the other party to all property (including choses in action) in the possession of such party as at this date. All the chattels in the matrimonial home are considered to be in the possession of the Wife;
(b) monies standing to the credit of the parties in any joint bank account is to become the property of the Husband;
(c) each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(d) all insurance policies to become the sole property of the beneficiary named hereunder;
(e) each party be solely liable for and indemnify the other against any liability encumbering any item or property to which that party is entitled pursuant to these Orders.
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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