MCCLOUD & COLBERT

[2015] FamCA 554

FAMILY COURT OF AUSTRALIA

MCCLOUD & COLBERT [2015] FamCA 554

FAMILY LAW – PROPERTY – Consent orders application – Where Registrar requisitioned the application for lack of information provided in the application – Where parties filed affidavits providing further information to the Court – Where a superannuation splitting order is sought – Where amendments required by the trustee of the superannuation fund have been incorporated into the consent orders – Where the orders are just and equitable – Consent orders made.

Family Law Act 1975 (Cth) ss 90MZD, 90NT

APPLICANT: Ms McCloud

RESPONDENT: Mr Colbert

FILE NUMBER: PAC 765 of 2015

DATE DELIVERED: 22 June 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 22 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

BY CONSENT IT IS ORDERED THAT:

1. That, within 90 days after the date of these Orders (“the settlement date”), the Respondent, Mr Colbert, and Applicant, Ms McCloud, do all acts and sign all documents as are necessary to transfer to the Applicant at the expense of the Applicant all of the Respondent’s right, title and interest in the property situate at B Street, Suburb C in the State of New South Wales and more particularly described in Certificate of Title Lot Number … Suburb C Local Government Area, Suburb D in the Parish of E in the County of F in the State of New South Wales.

2. To complete the transfer (by “the transferor”) the following shall apply:

   (a)       Settlement will take place on the settlement date.

   (b)       The transfer documentation will be prepared by the transferee and delivered to the transferor for signature by the transferor no later than 14 days prior to the settlement date.

3. The Respondent and Applicant will sign an authority and any other document required by the mortgagee to release the mortgage including but not limited to the Applicant refinancing the mortgage in her sole name.

4. The Respondent and Applicant will sign an irrevocable authorisation and direction (such document to be prepared by the transferee) to enable the mortgagee to release to the transferee solicitors any documents held by the mortgagee relating to the fire policy in respect of the property and deliver such authorisation to the mortgagee no later than 10 days prior to the settlement date.

5. The transferee will arrange for the mortgagee to attend on the settlement date for the purpose of delivery of title, executed Release of Mortgage and other required documentation.

6. Pending transfer of the property:

   (a)       The Applicant shall have the sole right to occupy the property and during such right of occupation the Applicant shall be responsible for all mortgage payments, rates and outgoings of the property as they fall due up to and including the settlement date.

   (b)       The parties hold their respective interest in the property upon trust pursuant to these Orders.

   (c)       Neither party shall encumber the property without the consent in writing of the other party or any mortgagee.

   (d)       Each party will cause to be repaired any damage to the property caused by them, such repair to be at such party’s own expense.

7. That pursuant to section 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of Mr Colbert in G Corp Superannuation Plan (member number …):

   (a) Ms McCloud shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of $180,000 (provided that such base amount shall not exceed the value of the interest determined under section 90MT(2)); and

   (b)       There be a corresponding reduction in the superannuation interest of Mr Colbert to whim the splittable payment would have been made but for the Order.

8. That each party and the Trustee of G Corp Superannuation Plan has the liberty to apply on not less than three (3) business days notice.

9. That the operative time for this Order is four (4) business days after service of the Order on G Corp Superannuation Plan.

10. That each party retains all property, real or personal, in the possession of that party at the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McCloud & Colbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 765 of 2015

Ms McCloud

Applicant

And

Mr Colbert

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application for consent orders filed on behalf of the parties jointly on 20 February 2015. 

2. The application for consent orders came before a Registrar on 25 March 2015 in chambers and as a consequence of the lack of information in support of the application the Registrar refrained from making consent orders as requested and forwarded to the parties correspondence dated 25 March 2015. That correspondence outlined the reasons in respect of why the consent orders were not made, the Registrar highlighting that the proposed consent orders contained superannuation splitting orders pursuant to section 90NT of the Family Law Act 1975 (Cth) (“the Act”) and there was no evidence that the trustee of the relevant superannuation fund, the G Corp Superannuation Plan, had been accorded procedural fairness in accord with section 90MZD of the Act.

3. Otherwise, the Registrar, noting that she needed to be satisfied as to the fact that the orders were just and equitable, required an affidavit from the parties setting out sufficient material upon which to inform herself as to whether the orders were just and equitable. 

4. In response to the Registrar’s requisitions, the wife filed two affidavits – the first on 2 April 2015, setting out a history of the relationship, particulars as to contributions and her understanding as to the division between the parties in relation to the proposed consent orders. She further provided in that affidavit a copy of correspondence to the trustee of the G Corp Superannuation Plan, dated 2 February 2015, from the husband, providing notice of the proposed orders sought, together with a response from the G Corp Superannuation Plan, setting out requested amendments to the order and to properly identify the plan and otherwise indicating that the trustee had no objection to the splitting order as sought.

5. The applicant wife further provided an affidavit filed on 8 April 2015 setting out her current circumstances in terms of her income and liabilities, particularly in relation to the former matrimonial home that is proposed to be transferred to her – that property being at B Street, Suburb C. 

6. The husband, for his part, on 2 April 2015, filed a short affidavit confirming his support for the orders sought by consent.

7. The matter was listed by the Registrar before the court today to further consider the application for consent orders. 

8. Having regard to the information now before the Court, and having regard to the amendment of the proposed terms to properly identify the G Corp Superannuation Plan as amended by the Court and initialled in the margin, the Court is satisfied that in all the circumstances the orders proposed are, indeed, just and equitable.

9. Orders will be made accordingly.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 22 June 2015.

Associate: 

Date:  22 June 2015