FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Parkes & Parkes [2024] FedCFamC2F 784
File number(s): LNC 167 of 2023 Judgment of: JUDGE TURNBULL Date of judgment: 28 June 2024 Catchwords: FAMILY LAW – PROPERTY – superannuation split agreed – contributions to non-superannuation pool agreed as equal – extent of adjustment to the Wife for s 79(4)(d)-(g) factors – SPOUSAL MAINTENANCE – whether spousal maintenance should be paid to the Wife as a lump sum if ordered. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited:
Beck & Beck (No 2) (1983) FLC 91-318
Best and Best (1993) FLC 92-418
Briginshaw v Briginshaw (1938) 60 CLR 336
Cabbell & Cabbell [2009] FamCAFC 205
Carson & Hillman [2019] FamCAFC 42
Clauson & Clauson (1995) FLC 92-595
Collins and Collins (1990) FLC 92-149
Dawes & Dawes [1989] FamCA 71
Dovgan & Dovgan [2021] FamCA 306
Elder v Elder [2009] FamCAFC 224
Engelbrecht & Moss [2015] FCWA 19
Figgins & Figgins [2002] FamCA 688
Gadhavi & Gadhavi [2023] FedCFamC1A 117
Garston & Yeo (No 2) [2019] FamCAFC 139
Grier & Malphas [2016] FamCAFC 84
Habib and Habib [1988] FamCA 40
Hickey & Hickey & Hickey [2003] FamCA 395
InMitchell & Mitchell (1995) FLC 92-601
In the Marriage of Bevan & Bevan (1995) FLC 92-60
In the Marriage of Napthali (1988) 13 Fam LR 146
Jabara & Gaber [2021] FedCFamC1A 26
Jabour & Jabour [2019] FamCAFC 78
Jacobson & Jacobson (1989) FLC 92-003
Kajewski T.G. & Kajewski B. [1978] FamCA 62
Line & Line (1997) FLC 92-729
Lotta & Lotta [2017] FamCA 50
Mallet & Mallet (1984) 156 CLR 605
Maroney & Maroney [2009] FamCAFC 45
Phillips & Phillips [2002] FamCA 350
Pierce v Pierce (1999) FLC 92
Qin & Donato [2023] FedCFamC1A 223
Seitzinger & Seitzinger (2014) FLC 93-626
Sigley & Cullen (No 3) [2015] FamCA 825
Stanford & Stanford (2012) 247 CLR 108
Teal & Teal [2010] FamCAFC 120
Telfer & Telfer [2016] FCWA 2
Waters & Jurek (1995) 126 FLR 311
Division: Division 2 Family Law Number of paragraphs: 111 Date of last submission/s: 7 March 2024 Date of hearing: 5 & 7 March 2024 Place: Launceston and Hobart - by Microsoft Teams (MS) Counsel for the Applicant: Mr M Trezise Solicitor for the Applicant: McVeity Dean Counsel for the Respondent: Mr G Williams Solicitor for the Respondent: Glynn Williams Legal ORDERS
LNC 167 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PARKES
Wife
AND: MR PARKES
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.The Wife relinquish to the Husband all of her right, title and interest in the property situate and known as B Street, Town C in Tasmania, and the Husband will indemnify the Wife in relation to all debts, loans and liabilities relating to the said property.
2.Both the Husband and the Wife do all things, sign all documents, provide all necessary authorities,…
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- Case
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CaseChat Overview and Summary
The court addressed several legal issues, primarily concerning the equitable distribution of the parties' assets. This included the division of proceeds from the sale of a property and the allocation of superannuation entitlements. The court also considered whether spousal maintenance should be awarded as a lump sum. The court examined the contributions and needs of each party, as well as other relevant factors under section 79(4) of the Family Law Act.
Judge Turnbull, in delivering the judgment, carefully reviewed the evidence and arguments presented by both parties. The court concluded that the equitable distribution of property should be achieved through specific allocations of assets, including real estate, motor vehicles, and superannuation. The court determined that the base amount for the Wife's entitlement to the Husband's superannuation should be $104,600, with further adjustments made according to the Family Law (Superannuation) Regulations 2001. The court also dismissed the Wife's application for spousal maintenance, finding that it was not appropriate to award a lump sum payment. The court made several orders to effectuate the property settlement, including the transfer of specific assets and the division of sale proceeds from a property. The court also noted that the orders were intended to finally determine the financial relationship between the parties, avoiding further proceedings.
Orders
Orders of the court
LNC 167 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS PARKES
Wife
AND:
MR PARKES
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1. The Wife relinquish to the Husband all of her right, title and interest in the property situate and known as B Street, Town C in Tasmania, and the Husband will indemnify the Wife in relation to all debts, loans and liabilities relating to the said property.
2. Both the Husband and the Wife do all things, sign all documents, provide all necessary authorities, and undertake all actions necessary to have the net sale proceeds of the now sold Town D property (‘the Town D Funds’) distributed as follows:
(a) $340,410.25 to the Wife.
(b) $25,251.75 to the Husband.
(c) any balance be divided 75% to the Wife and 25% to the Husband.
3. For the purpose of implementing paragraph 2 of this Order, the parties have leave to provide a copy of this Order to the person or entity holding the Town D Funds.
4. The Husband transfer to the Wife all of his right, title and interest in Motor Vehicle 1 and the Wife will indemnify the Husband in relation to all debts, loans and liabilities relating to the same.
5. The Wife transfer to the Husband all her right, title and interest in Motor Vehicle 2 and Motor Vehicle 3 and the Husband will indemnify the Wife in relation to all debts, loans and liabilities relating to the same.
6. In relation to the Husband's superannuation with Super Fund 1, account number …, of which E Pty Ltd is Trustee ("the said fund"):
(a) it is declared that this Order is made in accordance with Section 90XT(1) of the Family Law Act ("the Act");
(b) for the purposes of Section 90XT(4) of the Act the amount of one hundred and four thousand, six hundred Dollars ($104,600) is specified as the base amount being the entitlement of the Wife in relation to the superannuation held by the Husband with the said fund;
(c) for the purpose of these Orders the operative time shall be four (4) business days after service of these Orders upon E Pty Ltd as Trustee of the said fund;
(d) for the purposes of Section 90XT(1)(a) of the Act whenever a splittable payment becomes payable:
(i) from the interest of the Husband in the said fund the Wife shall be entitled to the base amount pursuant to these Orders as adjusted by the Trustee of the superannuation fund in accordance with the provisions of Division 6.1A of the Family Law (Superannuation) Regulations 2001; and
(ii) the Trustee of the said fund shall reduce the entitlement of the Husband in the said fund accordingly.
(e) until the Trustee of the said fund has effected the splitable payment in favour of the Wife pursuant to sub-paragraph (d) hereof, the Trustee of the said fund, the Husband, his personal legal representative, and any person or persons acting on his or their behalf, be and are hereby restrained from disposing of all or any amount payable to the Husband and/or his personal legal representative, received by or held in trust for or to the benefit of him or them.
7. Within seven (7) days of the date of this Order the Wife effect personal service of a sealed copy of these Orders upon the Trustee of the said fund with a request that they proceed to effect the splitable payment in favour of the Wife pursuant to Order 6(b) and 6(d) of this Order.
8. Having been accorded procedural fairness in relation to the making of this Order, the Order binds the Trustee of Super Fund 1.
9. In all other respects, each of the parties be solely entitled to the exclusion of the other to all property in that party’s possession or control as at the date of this Order including, but not limited to, personalty and chattels, motor vehicles, balances of bank accounts and superannuation or pension entitlements.
10. Each party be solely responsible for and indemnify the other in respect of all and any liabilities attaching to any of the assets to be retained by that party pursuant to these Orders and liabilities incurred by that party since separation in that party’s name alone.
11. Each Party must do all things necessary including, but not limited to, signing all documents and provide all consents necessary to give effect to this Order in the time periods prescribed in this Order.
12. Both parties have liberty to apply in relation to the implementation of the terms of this Order.
13. The Wife’s application for spousal maintenance is dismissed.
14. All extant property applications are dismissed.
THE COURT NOTES THAT
A. That pursuant to section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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