FEDERAL CIRCUIT COURT OF AUSTRALIA
| MONFORT & BADE (No.2) | [2017] FCCA 1673 |
| Catchwords: FAMILY LAW – Contested property proceedings – parties have significant reliance on credit cards and borrowings during the relationship to acquire assets – each worked to the best of their ability – weight given to s.75(2) factors – wife ten years older and has significant psychiatric diagnosis resulting in unlikelihood of participating in the workforce in the future – cancer diagnosis arose after the trial concluded – trial re-opened – property and superannuation – splitting order for pension in payment phase – wife seeks time to refinance mortgage to enable her to retain home – treatment of wife’s share of a post separation inheritance – husband’s income earning capacity diminished post separation – husband has primarily paid post separation mortgage repayments and debts – whether husband had capacity to continue to pay interim spousal maintenance – property division 75/25 in favour of the wife – spousal maintenance application dismissed. |
| Legislation: Family Law Act 1975, ss.74, 75(2), 77A, 79(4) |
| Cases cited: In the Marriage of Hickey (2003) FLC 93-143 |
| Applicant: | MS MONFORT |
| Respondent: | MR BADE |
| File Number: | BRC 4638 of 2014 |
| Judgment of: | Judge Willis |
| Hearing date: | 27 October 2016 |
| Date of Last Submission: | 26 September 2017 |
| Delivered at: | Cairns |
| Delivered on: | 13 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Baston (direct brief) |
| Solicitors for the Respondent: | Porter Galea Lawyers |
ORDERS
That the overall property division is to be divided 75% to the wife and 25% to the husband.
To achieve the division the following orders will apply.
The parties (and the Trustees referred to in the Orders) are granted liberty to apply in relation the mechanical provisions of these Orders.
Sale of Property A
The parties are to do all acts and things to forthwith effect a sale of the property situated at Property A in the State of Queensland more properly described as Lot (omitted), (omitted) County, Parish of (omitted) Title Reference (omitted), (the Property A property) pursuant to Order 5 herein.
Trustee for Sale
To effect the sale of the Property A, the parties are to do all acts and things to forthwith appoint Miller Harris Lawyers as Trustee for sale (“the Trustee”). The husband and wife are to do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title to the Property A property.
The Trustee is authorised by these Orders to have the sole conduct of the sale in all respects on behalf of the parties in relation to the Property A property. This will include doing all things necessary to list the Property A property for sale by private treaty and after a period determined solely by the…
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- Monfort and Bade (No.2) [2017] FCCA 1673
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- [2017] FCCA 1673
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CaseChat Overview and Summary
The court was required to determine the overall property division between the parties, specifically how to achieve a 75% to 25% split in favour of the wife. This involved determining the valuation and distribution of various assets and liabilities, including the sale of Property A and the potential sale of Property B in the event of default. The court also had to consider the division of splittable payments from a superannuation fund and address the wife's applications for spousal maintenance and related enforcement matters.
Judge Willis ordered that the overall property division be 75% to the wife and 25% to the husband. To achieve this, the court made detailed orders regarding the sale of Property A, appointing a Trustee for Sale with sole conduct of the sale and restraining the parties from interfering with the process. The proceeds of the sale were to be applied to sale costs, mortgage discharge, specified credit card debts, and capital gains tax liability, with the balance distributed according to the overall division. The wife was ordered to make a cash adjustment to the husband to effect the 25% division, and to refinance the mortgage on Property B, after which the husband's interest in Property B would be transferred to her. The court also made orders regarding the division of a superannuation fund, with the wife to receive 75% of splittable payments from one fund and the husband to retain another fund exclusively. The wife's application for spousal maintenance was dismissed, as were all outstanding applications.
Orders
Orders of the court
1.
That the overall property division is to be divided 75% to the wife and 25% to the husband.
2.
To achieve the division the following orders will apply.
3.
The parties (and the Trustees referred to in the Orders) are granted liberty to apply in relation the mechanical provisions of these Orders.
Sale of Property A
4.
The parties are to do all acts and things to forthwith effect a sale of the property situated at Property A in the State of Queensland more properly described as Lot (omitted), (omitted) County, Parish of (omitted) Title Reference (omitted), (the Property A property) pursuant to Order 5 herein.
Trustee for Sale
5.
To effect the sale of the Property A, the parties are to do all acts and things to forthwith appoint Miller Harris Lawyers as Trustee for sale (“the Trustee”). The husband and wife are to do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title to the Property A property.
6.
The Trustee is authorised by these Orders to have the sole conduct of the sale in all respects on behalf of the parties in relation to the Property A property. This will include doing all things necessary to list the Property A property for sale by private treaty and after a period determined solely by the Trustee for sale by auction. For the purposes of sale the following shall apply:
(a) The Property A property is only to be listed with such real estate agent/s and auctioneer as determined solely by the Trustee.
(b) The listing price for sale by private treaty and reserve price for an auction shall be such the amount as determined solely by the Trustee in consultation with the real estate agent/s and any other enquiries the Trustee wishes to make.
(c) The husband and wife are to co-operate in every way with the Trustee appointed real estate agent/s in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all reasonably requested times by the agent/s and ensuring the property is in clean, neat and good order at the time, vacating the property prior to any inspections as directed by the Trustee to enable any prospective buyers to have access to and properly inspect the Property A property in the absence of the husband or wife.
(d) Follow any other directions of the Trustee in relation to the sale of the Property A property and/ or inspections or viewing of the property and do all acts and things as requested by and in co-operation with the Trustee as and when requested to do so.
7.
The husband and wife are restrained from taking any action which causes interference with any prospective purchaser or sale or with the responsibilities and obligations of the Trustee in relation to the Property A property.
8.
The husband and wife are restrained from communicating with any agent/s, auctioneer appointed by the Trustee (other than to follow the directions of the Trustee) or any prospective purchaser without first obtaining the prior written consent of the Trustee.
9.
Neither party may confer on any agent without the prior written consent of the Trustee, any permission to sell or any sole or exclusive agency in respect of the Property A property.
10.
The costs of and incidental to such appointment of the Trustee is to be borne equally by the parties.
11.
That pending the sale of the Property A property, the husband shall have the sole right to use and occupy this property to the exclusion of the wife.
Division of Proceeds of Property A property
12.
Upon completion of sale of the Property A, the proceeds shall be applied and paid in the following order:
(a) To pay all costs, commissions and expenses of the sale and to pay any rates, land taxes and utility charges in respect of the property;
(b) To discharge the mortgage on the Property A property;
(c) To pay the amount of $92,000.00 towards to the husband’s credit card debt (unless already paid pursuant to the default provisions of Order 29 herein);
(d) To pay the amount of $7,000.00 towards the wife’s credit card debt (unless already paid pursuant to the default provisions of Order 29 herein);
(e) To pay or quarantine the sum of $24,663.00 being the capital gains tax liability arising from the sale of the Property C property (unless already paid or quarantined pursuant to the default provisions of Order 29 herein;
(f) The balance is to be paid to the husband, and taken into account as part of his 25% as referred to in these Orders.
Wife to pay Husband cash adjustment
13.
That within 120 days of the date of these Orders (or other such date as agreed to between the parties in writing and if there is no agreement to vary this date, then within 120 days) the wife is to:
(a) Pay to the husband the cash adjustment necessary to effect a 25% division to the husband pursuant to these Orders. Such sum will be arrived at after taking into account the following calculation:
(i) Starting with $484,265.00 (being the equity retained by the wife in Property B (after deduction of the mortgage); plus
(ii) the balance of the sale proceeds of the Property A property (after the deduction of the debts as referred to in Order 12 herein); plus
(iii) the sum of $75,000.00 (being the value of the (omitted) Superannuation Fund) plus $3,800.00 (being the value of the husband’s car). The total of these sums will be referred to as A.
(iv) A is then to be multiplied by 25% representing the husband’s overall entitlement (excluding the (employer omitted) pension).
(v) From the figure arrived at in Order 13(a)(iv) above, the sum of $78,800.00 is to be deducted being the value of the assets to be retained by the husband (the (omitted) Superannuation and the husband’s car).
(vi) The figure arrived at will be the referred to as the cash adjustment payable by the wife to the husband.
14.
The wife is to pay the husband funds totalling the sum of the cash adjustment as provided for in Order 13 herein and contemporaneously with such payment, the wife is to refinance the mortgage on Property B pursuant to Order 15 herein so as to remove the husband from all financial responsibility to Property B.
Wife to re-finance
15.
The wife and husband is to do all things and sign all documents necessary to refinance the mortgage on Property B and secure the release of the husband from his personal covenants in respect of the current mortgage to the bank over Property B and or any guarantee by the husband in relation to that mortgage. From that time the wife shall release and indemnify the husband in relation to all liabilities arising pursuant to the mortgage or liabilities of any other kind whatsoever arising from Property B.
Transfer of Property B
16.
Contemporaneously with the wife’s compliance with Orders 13, 14 and 15 herein, the husband and wife do all such acts and things and sign all documents that may be required to transfer to the wife at the expense of the wife all of the husband’s right, title and interest in and to the property situated at Property B in the State of Queensland, more particularly described at Property B on Crown Plan (omitted) of (omitted) Title Reference (omitted) (Property B).
(employer omitted) Pension
17.
Subject to procedural fairness being accorded to the Trustee of the (employer omitted) Superannuation , that in accordance with section 90MT(1)(b) of the Family Law Act 1975, (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Bade from his interest in the (employer omitted) Superannuation ((omitted)), his former spouse Ms Monfort (formerly Ms Monfort) who is a person specified in section 90ME of the Act is entitled to be paid (by the Trustee of (employer omitted) Superannuation) 75% of the splittable payment and there shall be a corresponding reduction in the amount Mr Bade would be entitled to receive but for these Orders.
18.
The operative time for Order 17 is four business days after the service of the final orders on the Trustee.
(omitted) Superannuation
19.
The husband is to retain to the exclusion of the wife, 100% of the (omitted) Super Fund standing in his name.
Husband’s vehicle
20.
The husband is to retain his vehicle.
Default Provision
21.
In the event of default by the wife of any of the obligations under Orders 13, 14, 15 and 16 herein the parties are to forthwith do all acts and things to effect a sale of the property situated at Property B in the State of Queensland, more particularly described at Property B on Crown Plan (omitted) of (omitted) Parish, Title Reference (omitted) (Property B) pursuant to the terms of Order 22 herein.
22.
To effect the sale of the Property B, the parties are to forthwith do all acts and things to appoint Miller Harris Lawyers as Trustee for sale (“the Trustee) of Property B. The husband and wife are to do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title to Property B.
23.
The Trustee is authorised by these Orders to have the sole conduct of the sale in all respects on behalf of the parties in relation Property B. This will include doing all things necessary to list Property B for sale by private treaty and after a period determined solely by the Trustee, for sale by auction. For the purposes of sale the following shall apply:
(a) Property B is only to be listed for sale with such real estate agent/s and auctioneer as determined solely by the Trustee;
(b) The listing and reserve price for an auction shall be such amount as determined by the Trustee in consultation with the real estate agent/s and by any other enquiries the Trustee wishes to make;
(c) The husband and wife are to co-operate in every way with the directions of the Trustee appointed real estate agent/s in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all reasonably requested times by the agent/s and ensuring the property is in clean, neat and good order at the time, vacating the property prior to any inspections as directed by the Trustee to enable any prospective buyers to have access to and properly inspect Property B in the absence of the husband or wife.
(d) Follow any other directions of the Trustee in relation to the sale of the property and/ or inspections or viewing of the property and do all acts and things as requested by and in co-operation with all requests of the Trustee as and when requested to do so.
24.
The husband and wife are restrained from taking any action which causes interference with any prospective sale or with the responsibilities and obligations of the Trustee for Sale in relation to the Property B.
25.
The husband and wife are restrained from communicating with any agent/s, auctioneer appointed by the Trustee (other than to follow the directions of the Trustee) or any prospective purchaser without the prior written consent of the Trustee.
26.
The costs of and incidental of the Trustee is to be borne equally by the parties.
27.
Neither party may confer on any agent without the prior written consent of the Trustee, any permission to sell or any sole or exclusive agency in respect of the Property B.
28.
That pending the sale of the property, the wife shall have the sole right to use and occupy Property B to the exclusion of the husband.
29.
The proceeds of sale are to be divided as follows:
(a) To pay all costs, commissions and expenses of the sale and to pay any rates, land taxes and utility charges in respect of the property;
(b) To discharge the mortgage on the Property B;
(c) In the event that the Property A property remains unsold, at the time of the sale of Property B the credit card debts referred to at Orders 12(c) and (d) are to be paid and the CGT if not already paid referred to at 12(e) herein is to be paid or quarantined.
(d) The balance is to be distributed so as to achieve an overall division of assets of 75% to the wife and 25% to the husband (after taking into account the assets retained by the husband and wife (excluding the (employer omitted) Pension).
Other Orders
30.
Unless specifically provided for in these orders, the parties are solely entitled to the exclusion of the other to all other property and chattels in the possession of each of the parties as at the date of the making of these orders.
31.
That unless otherwise provided for in these Orders, the husband and wife each remain solely liable for an indemnify the other for any and all credit card debt or liability held in their own respective names.
32.
That each of the parties shall do all acts and sign all necessary documentation to give effect to the terms of these Orders. In the event that either party refuses or neglects to sign (within seven 7 days of a written request to do so) any document necessary to effect the terms of these orders, the Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.
Spousal Maintenance
33.
The wife’s application for spousal maintenance is dismissed.
34.
The wife’s applications for contraventions of any interim and or previous spousal maintenance orders, enforcement for arrears and warrants for seizure of property arising from any previous spousal maintenance orders are dismissed.
Outstanding Applications
35.
The Application in a Case filed on 16 May 2016 and 4 August 2016 are dismissed.
36.
All outstanding applications are dismissed are removed from the pending cases list.
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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