Melvin & Melvin - [2018] FCCA 1847

FEDERAL CIRCUIT COURT OF AUSTRALIA

MELVIN& MELVIN

[2018] FCCA 1847

Catchwords:
FAMILY LAW – Parenting settled first day of trial – property –date of separation – contributions during and after the relationship.

Legislation:

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

(legislation omitted) s.22F

Family Law Act 1975, ss.75(2), 79, 90MT(1)(a), 106A

Family Law (Superannuation) Regulations 2001, pt.6
Mental Health Act 1986 (Vic)

Cases cited:

AJO & GRO [2005] FamCA195

Phillips & Phillips (2002) 168 FLR 438
Re Hickey [2003] FLC 93-143
Stanford & Stanford (2012) 247 CLR 108

Applicant:

MS MELVIN

Respondent:

MR MELVIN

File Number:

MLC 6111 of 2016

Judgment of:

Judge Harland

Hearing dates:

9, 10 & 11 April 2018

Date of Last Submission:

11 April 2018

Delivered at:

Melbourne

Delivered on:

10 July 2018

REPRESENTATION

Counsel for the Applicant:

Mr Stanley

Solicitors for the Applicant:

Ebejer & Associates

Counsel for the Respondent:

Mr Goddard

Solicitors for the Respondent:

Robinson Gill

ORDERS

That within 60 days of the date of these Orders;
(a)The Wife pay to the Husband the sum of $149,000.
(b)the Wife and the Husband do all acts and things and sign all documents as are necessary to transfer to the Wife at the expense of the Wife, all of the Husband’s right, title and interest in the property situate at Property A (“Property A”), and the Wife do all acts and things to refinance the mortgage secured over the property and release and indemnify the Husband with respect to the said mortgage (“the transfer”).
In the event that the Wife does not wish to retain Property A or is unable to refinance the property into her sole name the Husband and Wife shall do all acts and things and sign all documents necessary to affect the sale of the property and for that purpose the following shall apply:
(a)The parties engage (omitted Real estate consultant) (“(omitted Real estate consultant)”) to manage the sale of Property A and are to co-operate in every way with (omitted Real estate consultant) and any such real estate agent recommended by (omitted Real estate consultant) with respect to the sale price, marketing of Property A for sale including making the key readily available, allowing inspection of Property A at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
That upon agreement being reached for the sale of the property, the parties shall execute the Contract of Sale and all other documents necessary to complete the sale of Property A, including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.
That the proceeds of sale of Property A shall be paid in the following manner and priority
(a)Discharge of the joint mortgage with the Bank A;
(b)Payment of the agent’s commission and advertising or other expenses;
(c)Payment of the legal costs and outlays relating to the sale;
(d)80% to the applicant
(e)20% to…

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 Melvin & Melvin

Details

AGLC: MELVIN& MELVIN [2018] FCCA 1847
Case: [2018] FCCA 1847
Decision Date: 10 July 2018

CaseChat Overview and Summary

This matter concerned the division of property and superannuation interests between a husband and wife, heard by Harland J in the Federal Circuit Court of Australia. The dispute involved the distribution of a jointly owned property, known as Property A, and the husband's entitlement to a portion of the wife's superannuation. The court was required to make orders regarding the transfer or sale of Property A, the distribution of sale proceeds, and the allocation of superannuation benefits.

The court was tasked with determining the specific terms of the property settlement, including the financial adjustments required between the parties and the mechanism for dealing with their shared real estate. A key legal issue was the division of the wife's superannuation interest, specifically how to secure the husband's entitlement to a defined amount from her superannuation fund in accordance with the relevant provisions of the *Family Law Act 1975* and its associated regulations. The court also needed to consider the practical implementation of these orders, including the execution of necessary documents and the role of third parties, such as superannuation trustees.

Harland J ordered that the wife pay the husband $149,000 and transfer her interest in Property A to him, with the wife to refinance the mortgage. Alternatively, if the wife could not retain Property A, the property was to be sold, with proceeds applied first to the mortgage, then sale expenses, and finally distributed with 80% to the applicant (presumably the wife) and 20% to the respondent (presumably the husband). The court also ordered that the husband be allocated a base amount of $20,123.00 from the wife's superannuation interest, to be paid by the superannuation fund trustee when splittable payments are made from the wife's interest. The orders stipulated that each party would retain their existing personal property and bank accounts, and forego claims to each other's superannuation, except for the specific payment to the husband. The court also included provisions for the execution of documents by a Registrar if a party failed to comply, and for the binding nature of the orders on parties and their legal representatives, including the superannuation trustee.

Orders

Orders of the court

That within 60 days of the date of these Orders;

(a) The Wife pay to the Husband the sum of $149,000.

(b) the Wife and the Husband do all acts and things and sign all documents as are necessary to transfer to the Wife at the expense of the Wife, all of the Husband’s right, title and interest in the property situate at Property A (“Property A”), and the Wife do all acts and things to refinance the mortgage secured over the property and release and indemnify the Husband with respect to the said mortgage (“the transfer”).

In the event that the Wife does not wish to retain Property A or is unable to refinance the property into her sole name the Husband and Wife shall do all acts and things and sign all documents necessary to affect the sale of the property and for that purpose the following shall apply:

(a) The parties engage (omitted Real estate consultant) (“(omitted Real estate consultant)”) to manage the sale of Property A and are to co-operate in every way with (omitted Real estate consultant) and any such real estate agent recommended by (omitted Real estate consultant) with respect to the sale price, marketing of Property A for sale including making the key readily available, allowing inspection of Property A at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.

That upon agreement being reached for the sale of the property, the parties shall execute the Contract of Sale and all other documents necessary to complete the sale of Property A, including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.

That the proceeds of sale of Property A shall be paid in the following manner and priority

(a) Discharge of the joint mortgage with the Bank A;

(b) Payment of the agent’s commission and advertising or other expenses;

(d) 80% to the applicant

(e) 20% to the respondent.

Pending completion of the sale or transfer of Property A:

(a) The Wife shall have the sole right to occupy the property and during such right of occupation the Wife 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;

Pursuant to s.106A a Registrar of the Federal Circuit Court at Melbourne shall execute in the name of either party, any deed or documents necessary to affect the transfer and/or sale of the property where a party fails to execute any documents required to comply with any Order made by the Court.

Unless otherwise specified in these Orders except for the purposes of enforcing payment of any money due under these or any subsequent Orders:

(a) Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders including any jewellery, furniture, furnishings, shares and motor vehicles;

(b) Monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;

(c) Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other;

(d) Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order; and

(e) If either the Husband or Wife defaults in compliance with their obligations in these Orders, then the party who is not in default shall be entitled to immediately thereafter commence proceedings against the other and shall rely on these Orders for any application for costs of the proceedings.

That these orders be binding upon the parties and their heirs, executors, administrators, assigns and legal representatives and are to continue in full force and effect notwithstanding the death of either party.

That paragraphs 11, 13, 15 and 16 of the Orders are binding on the (omitted Superannuation Board), the Trustee and Administrator of (omitted Superannuation fund) ("the fund").

10.

That the base amount allocated to the husband in these proceedings out of the interest of the wife in these proceedings in the fund is $20,123.00 ("the base amount").

11.

If as a result of termination of her employment the wife becomes entitled to a benefit prior to the (omitted Superannuation Board) making a payment under section 22F of the (legislation omitted) she shall provide to the (omitted Superannuation Board) all such forms as shall be necessary to enable the Trustee to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require, within 7 days of that entitlement arising.

12.

That pursuant to Section 90MT(1)(a) of the Family Law Act 1975 ("the Act") whenever the Trustee of the fund makes a splittable payment from the interests held by the wife the Trustee will pay to the husband or his legal personal representatives the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 the base amount of $20,123.00 (provided that such base amount shall not exceed the value of the interest determined under Section 90MT(2)) and there be a corresponding reduction in the superannuation interest of Ms Melvin to whom the splittable payment would have been made but for the Order.

13.

That there be liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

14.

That Order 12 has effect from the operative time.

15.

That the operative time of these Orders is 4 business days after service of a certified court sealed copy of the final Orders on the fund.

16.

That the Trustee of the fund in accordance with the obligations set out under the Act and Family Law (Superannuation) Regulations do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the husband in accordance with paragraph 12 of these Orders.

17.

The wife serve a sealed copy of these Orders on the Trustee of the fund within 7 days of the date of these Orders by ordinary post.

Costs

18.

In the event the wife seeks to make an application for costs she is file and serve written submissions within 28 days.

19.

The husband is to file and serve submissions in reply within 14 days of being served in accordance with order 18.

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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