NIKAS & ANTHIS - [2015] FCCA 1871

FEDERAL CIRCUIT COURT OF AUSTRALIA

NIKAS & ANTHIS

[2015] FCCA 1871

Catchwords:
FAMILY LAW – Property – application by Husband for property settlement – contributions – where the Wife’s mother provided funds to the Wife for the purchase of a property and gifted the matrimonial property – Husband commenced but failed to complete renovations on the properties – where the Husband gambled over $200,000 including over $100,000 of funds borrowed for the renovations – where the Wife is to retain care of the parties ten year old son – where the Wife inherited further property from the estate of her late mother shortly after separation – 75(2) factors – Wife’s superior earning capacity – Wife’s inheritance – question of whether the Wife’s inheritance forms part of the asset pool. HELD – orders made for an 77.5/22.5 division of the asset pool in favour of the Wife exclusive of the Wife’s inheritance.

Legislation:

Family Law Act 1975 (Cth), ss.75 (2), 79 (2), 79 (4), 75 (2) (o)

In the marriage of Bonnici [1991] FamCA 86
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FamCA 395
Hamilton & Thomas [2008] FamCAFC 8
Verley & Verley (No.2) [2008] FamCA 326
Stanford & Stanford [2012] HCA 52
Bevan & Bevan [2013] FamCAFC 116

Applicant:

MR NIKAS

Respondent:

MS ANTHIS

File Number:

MLC 10460 of 2013

Judgment of:

Judge Bender

Hearing date:

28 April 2015

Date of Last Submission:

29 April 2015

Delivered at:

Melbourne

Delivered on:

17 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr O’Connor

Solicitors for the Applicant:

Aaron Eidelson

Counsel for the Respondent:

Mr Hall

Solicitors for the Respondent:

Barbayannis Lawyers

ORDERS

On or before 20 October 2015 the property situate at and known as Property C (“the real property”) be placed on the market and there be an auction sale (“the sale”) with such settlement to be for a period not exceeding 90 days and with the reserve price to be agreed at $630,000, and upon completion of the sale (“the settlement”), the proceeds of the sale be applied as follows:
(a)    Firstly, to pay all costs, commissions and expenses of the sale;
(b)    Secondly, to discharge the mortgage or other encumbrance affecting the real property;
(c)    Thirdly, the balance to Aaron Eidelson solicitor, for and on behalf of the Husband;
Contemporaneously with the settlement of the sale of the real property, the Wife shall cause to be paid to Aaron Eidelson solicitor for and on behalf of the Husband an amount that, together with the net proceeds of sale, equals 22.5% of the matrimonial assets and liabilities exclusive of superannuation and the Wife’s inheritance as is set out in paragraph 138 of the judgment delivered 17 July 2015.
Contemporaneously with the Husband receiving all monies payable to him pursuant to Order 1(c) and Order 2 herein, the husband shall do all such acts and things and sign all necessary documents as to withdraw, at his expense, any caveat(s) which the Husband has lodged over any…

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 NIKAS & ANTHIS

Details

AGLC: Nikas and Anthis [2015] FCCA 1871
Case: [2015] FCCA 1871
Decision Date: 17 July 2015

CaseChat Overview and Summary

In this matter before Judge Bender, the court was required to make orders concerning the division of matrimonial assets and liabilities between the Husband and Wife. The dispute involved the sale of real property, the distribution of sale proceeds, and the division of superannuation interests. The orders also addressed the payment of a debt to a third party and the withdrawal of caveats lodged by the Husband over properties belonging to the Wife.

The primary legal issues before the court were how to equitably divide the parties' financial resources, including real estate and superannuation, and to ensure that the orders made would finally determine the financial relationship between the parties. Specifically, the court had to determine the terms of the sale of a property, the allocation of its proceeds, and the method by which a portion of the Wife's superannuation interest would be transferred to the Husband. The court also considered the Wife's obligations in relation to the Husband's superannuation entitlements and the circumstances under which certain actions by the Wife would be restrained.

The court's reasoning, as reflected in the orders, involved a detailed allocation of assets and liabilities. The real property was to be sold by auction with a specified reserve price, and the proceeds were to be applied first to sale costs, then to discharge any encumbrances, with the balance to be paid to the Husband. The Wife was ordered to pay a sum to the Husband such that, when combined with the net proceeds of sale, it represented 22.5% of the matrimonial assets and liabilities, excluding superannuation and the Wife's inheritance. The court also made specific orders under sections 90MT(4) and 90MT(1)(a) of the *Family Law Act 1975* to allocate a base amount from the Wife's superannuation to the Husband and to bind the Trustee of the superannuation fund to make future payments accordingly. Further orders imposed restraints on the Wife's ability to deal with her superannuation interest in a manner that would render payments non-splittable.

The court ordered the Wife to pay $5,000 to Mr B in full satisfaction of monies owing. The court also granted the Husband leave to make an oral application for costs and set timelines for the parties to provide written submissions on the question of costs, with the costs application to be determined on the papers. The parties' intention was noted that these orders would, as far as practicable, finally determine their financial relationships.

Orders

Orders of the court

On or before 20 October 2015 the property situate at and known as Property C (“the real property”) be placed on the market and there be an auction sale (“the sale”) with such settlement to be for a period not exceeding 90 days and with the reserve price to be agreed at $630,000, and upon completion of the sale (“the settlement”), the proceeds of the sale be applied as follows:

(a) Firstly, to pay all costs, commissions and expenses of the sale;

(b) Secondly, to discharge the mortgage or other encumbrance affecting the real property;

Contemporaneously with the settlement of the sale of the real property, the Wife shall cause to be paid to Aaron Eidelson solicitor for and on behalf of the Husband an amount that, together with the net proceeds of sale, equals 22.5% of the matrimonial assets and liabilities exclusive of superannuation and the Wife’s inheritance as is set out in paragraph 138 of the judgment delivered 17 July 2015.

Contemporaneously with the Husband receiving all monies payable to him pursuant to Order 1(c) and Order 2 herein, the husband shall do all such acts and things and sign all necessary documents as to withdraw, at his expense, any caveat(s) which the Husband has lodged over any properties in the name of or belonging to the Wife, including but not limited to:

(a) Property C;

(b) Property B; and

The parties hold their respective interests in the real property upon trust pursuant to these orders.

The Wife pay the sum of $5,000 to Mr B in full satisfaction of all monies owing by the parties to Mr B.

Orders 6 to 14 inclusive bind the Trustee of the [V] Superannuation Fund (“the Fund”) member name [Ms Anthis] and member number [omitted].

The Court allocate, pursuant to Section 90MT(4) of the Family Law Act 1975, a base amount of $47,402 to the Husband out of the Wife’s interest in the [V] Superannuation Fund member number [omitted].

Pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975 whenever the Trustee makes a splittable payment from the interest held by the Wife the Trustee:

(a) Pay the Husband or his legal personal representative and assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

(b) Make a corresponding reduction in the entitlement the Wife would have had in the Fund but for these Orders.

Order 7 has effect from the operative time.

10.

The operative time of these Orders is four (4) business days after the day on which the final sealed, signed Orders are served on the Trustee.

11.

The Trustee of the Fund do all such acts and things and sign all such documents as may be necessary so that the Trustee, in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, can calculate the entitlement of, and make payment to the Wife in accordance with Order 7 of these Orders.

12.

Upon receipt by the Husband of a payment split notice when issued by the Trustee pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the Husband exercise his election pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 to request the Trustee to rollover or transfer the transferable benefits as defined by r.1.03(1) of the Superannuation Industry (Supervision) Regulations 1994 to another fund of the Husband’s choosing.

13.

Following the action taken by the Trustee of the Fund as contemplated in r.14F(2)(b) of the Family Law (Superannuation) Regulations 2001, the provisions of r.14 of the Family Law (Superannuation) Regulations 2001 will make any splittable payments, following the action by the Trustee, non-splittable.

14.

Until the happening of any of:

(a) The establishment of a separate account in the name of the Husband in the Fund; or

(b) The transfer or "rolling over" into another superannuation fund the payment split created by Order 11 hereof; or

(d) The Husband executes a waiver or rights within the meaning of Section 90MZA of the Family Law Act 1975 in relation to the payment split created by Order 7 hereof.

the Wife be and is hereby restrained by herself, her servants or agents from executing a binding death benefit nomination in favour of any person or from doing any such act or thing would render any part of her interest in the Fund a non-splittable payment within the meaning of r.13 of the Family Law (Superannuation) Regulations 2001.

15.

Until the operative time of these Orders the Wife be restrained by herself, her servants or agents from making application for withdrawal of any funds from her interest in the Fund.

16.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Husband/Wife).

(b) Insurance policies remain the sole property of the owner named thereon/in.

(c) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

(d) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

17.

The applicant Husband have leave to make an oral application for the Husband’s costs of the proceedings as from 20 October 2014.

18.

The Husband’s solicitors provide to the Court and the Wife’s solicitors written submissions on the question of the Husband’s costs on or before 31 July 2015.

19.

The Wife’s solicitors provide to the Court and the Husband’s solicitors answering submissions on or before 14 August 2015.

AND THE COURT NOTES THAT:

A. That pursuant to Section 81 of the Family Law Act 1975 the parties intend these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.

B. The Husband’s costs application shall be determined on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.