FAMILY COURT OF AUSTRALIA
| PEDACE & DETTONI | [2016] FamCA 643 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Final alteration of property interests – child support departure – non-periodic child support FAMILY LAW – COSTS |
| APPLICANT: | Ms Pedace |
| RESPONDENT: | Mr Dettoni |
| INTERVENOR: |
| FILE NUMBER: | MLC | 2972 | of | 2013 |
| DATE DELIVERED: | 9 August 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 11 and 12 July 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Potter |
| SOLICITOR FOR THE APPLICANT: | M & K Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Testart |
| SOLICITOR FOR THE RESPONDENT: | Cantwell Family Lawyers |
Orders
IT IS ORDERED THAT
Property
1.On or before 11 October 2016 (“the date”), the husband pay to the wife the payment which is calculated as follows:-
(A + G) x P - W
where:-
A = $950,459 being the total agreed value of the non-superannuation assets, described in paragraph 21 of the reasons for decision excluding the property at B Street, Suburb C.
G = the value to be attributed to the property at B Street, Suburb C as at 12 October 2016 or the date upon which the payment is made (which event first occurs) being:-(a) If the property is subject to an unconditional contract of sale, the sale proceeds inclusive of any chattels or fixtures sold with the property less conveyancing costs referrable to the sale and estate agent’s commission and advertising and agent’s other expenses associated with the sale;
(b) If the property is not subject to an unconditional contract of sale, $905,000.
P = 59 per cent being the proportion of non-superannuation assets to which the wife is entitled.
W = $875,865 being the total value of non-superannuation assets described in paragraph 21 of these reasons which are to be retained by the wife.2.In the event the payment has not been made in full by the date the parties do all acts and things and sign all documents necessary to list the real property at B Street, Suburb C in the State of Victoria title particulars Lot … on plan of subdivision … Volume … Folio … (“the Suburb C property”) for sale with an agreed selling agent, and failing agreement, with an agent appointed by the court, with the proceeds of the sale to be applied as follows:-
a)First, in payment of all costs, commissions and expenses of and adjustments on the sale;
b)Second, to discharge any encumbrance affecting the Suburb C property;
c)Third, such amount of the payment as remains outstanding as at the date plus interest calculated daily at the Victoria Penalty Interest Rate;
d)Finally, the remaining balance to the husband.
3.Pending the payment or the completion of the sale:-
a)The husband be restrained from encumbering or further drawing-down on any existing loans encumbering the Suburb C property, save for the purpose of obtaining finance with which to make the payment;
b)Subject to further order of the court, the husband will have the sole use of the Suburb C property and be…
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- Pedace and Dettoni [2016] FamCA 643
- Case
- [2016] FamCA 643
- Decision Date
CaseChat Overview and Summary
The court was required to determine the method for calculating and distributing the parties' non-superannuation assets, specifically how the value of the B Street property should be incorporated into the overall settlement. It also needed to determine the wife's entitlement from the husband's superannuation fund and make orders regarding the payment and reimbursement of child support expenses. Further issues included the wife's application for lump sum spousal maintenance and the allocation of costs.
Bennett J ordered that the husband pay the wife a sum calculated by a specific formula, which included a proportion of the agreed value of non-superannuation assets and the value of the B Street property. The formula accounted for assets retained by each party. In the event of non-payment, the B Street property was to be listed for sale, with proceeds applied first to sale costs, then encumbrances, then the outstanding payment to the wife with interest, and finally the balance to the husband. The court also made detailed orders regarding the division of superannuation, the wife's sole use of the B Street property pending payment, and each party's responsibility for their respective liabilities. The wife's application for lump sum spousal maintenance was dismissed.
The court ordered that the husband pay the wife's costs of and incidental to her application and the hearing, to be assessed in accordance with the Itemised Scale of Costs if not agreed within 14 days. Regarding child support, the court departed from the administrative assessment, setting the husband's child support income amount at $76,700 per annum and ordering him to reimburse the wife for half of specified educational expenses for the children. Liberty to apply was reserved for all parties concerning the implementation of the orders.
Orders
Orders of the court
IT IS ORDERED THAT
Property
1. On or before 11 October 2016 (“the date”), the husband pay to the wife the payment which is calculated as follows:-
(A + G) x P - W
where:-
A = $950,459 being the total agreed value of the non-superannuation assets, described in paragraph 21 of the reasons for decision excluding the property at B Street, Suburb C.
G = the value to be attributed to the property at B Street, Suburb C as at 12 October 2016 or the date upon which the payment is made (which event first occurs) being:-
(a) If the property is subject to an unconditional contract of sale, the sale proceeds inclusive of any chattels or fixtures sold with the property less conveyancing costs referrable to the sale and estate agent’s commission and advertising and agent’s other expenses associated with the sale;
(b) If the property is not subject to an unconditional contract of sale, $905,000.
P = 59 per cent being the proportion of non-superannuation assets to which the wife is entitled.
W = $875,865 being the total value of non-superannuation assets described in paragraph 21 of these reasons which are to be retained by the wife.
2. In the event the payment has not been made in full by the date the parties do all acts and things and sign all documents necessary to list the real property at B Street, Suburb C in the State of Victoria title particulars Lot … on plan of subdivision … Volume … Folio … (“the Suburb C property”) for sale with an agreed selling agent, and failing agreement, with an agent appointed by the court, with the proceeds of the sale to be applied as follows:-
a) First, in payment of all costs, commissions and expenses of and adjustments on the sale;
b) Second, to discharge any encumbrance affecting the Suburb C property;
c) Third, such amount of the payment as remains outstanding as at the date plus interest calculated daily at the Victoria Penalty Interest Rate;
d) Finally, the remaining balance to the husband.
3. Pending the payment or the completion of the sale:-
a) The husband be restrained from encumbering or further drawing-down on any existing loans encumbering the Suburb C property, save for the purpose of obtaining finance with which to make the payment;
b) Subject to further order of the court, the husband will have the sole use of the Suburb C property and be responsible for all rates, taxes, utilities and other outgoings of the Suburb C property as and when they fall due;
c) The wife have conduct of the sale;
d) Each party have liberty to apply with respect to the sale including with respect to the appointment of a selling agent, conveyancer or solicitor to have conduct of the sale.
4. That the wife retain for her own use and benefit to the exclusion of the husband:-
a) Her motor vehicle 1;
b) Her Telstra shares;
c) Her Host Plus Superannuation entitlements;
d) The real property situate at and known as D Street, Suburb A in the State of Victoria.
5. The wife be fully responsible for and indemnify the husband against her litigation funding loan with E Pty Ltd.
6. The husband retain for his own use and benefit to the exclusion of the wife:-
a) B Street, Suburb C in the State of Victoria (“Suburb C property”);
b) His motor vehicle 2;
c) His motor vehicle 3 (or proceeds);
d) His APA Group shares (or the proceeds of their sale);
e) His Colonial Mutual and Plum Superannuation entitlements.
7. Contemporaneously with compliance by the husband with paragraph 1 of this Order the wife remove the caveat on the Suburb C property forthwith at her expense.
8. Both parties indemnify the other for all liabilities in their respective names including but not limited to mortgages, rates, loans, credit card debt and all taxes.
9. These orders shall be binding on the Trustee of the Company F Superannuation Fund (“the Fund”).
10. The base amount allocated to the wife out of the husband’s interest in the fund is $115,837 (“the base amount”).
11. Pursuant to s 90MT(1)(A) of the Family Law Act (Cth) 1975 (“the Act”) when a splittable payment becomes payable in respect of the interest in the Fund held by the husband:
a) The wife shall be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $115,837, provided that such base amount shall not exceed the value of interest determined under s 90MT((2) and there shall be a corresponding reduction in the entitlement that the husband would have had in the fund but for this Order;
b) The wife is entitled to be paid, and the Trustee of the Fund shall pay her, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
c) The Order has effect from the operative time;
d) The operative time for the purpose of these Orders is the fourth business day, after the date of service of a sealed copy of these Orders on the Trustee of the Fund.
12. Having been afforded procedural fairness in relation to the making of this Order, this Order binds the Trustee of the Fund.
13. The Trustee of the Fund and the parties in accordance with the obligations set out under the Act and the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry Fund (Supervision) Act (Cth) 1993 and Superannuation Industry (Supervision) Regulations 1994 shall do all such acts and things and sign all documents that be required to calculate the entitlement of and make payment to the wife in accordance with this Order.
14. Within 7 days of this Order being made the wife shall serve a copy of this Order upon the Trustee of the Fund.
15. There be liberty to each party and the trustee of the Fund to apply regarding implementation of these orders affecting the interests of the husband and the wife in the Fund.
16. Until such time as the superannuation split with the wife pursuant to these orders can be rolled over into a separate account in the name of the wife:-
a) The husband will give to the wife written notice not less than 28 days before such time as he elects to retire from and/or take voluntary retirement and/or for any reason except to become entitled to access in whole or part his entitlement to the fund;
b) The husband will authorise the fund to communicate with the wife and/or a person nominated by her in writing;
c) To answer any reasonable inquiries made by the wife or on her behalf from time to time regarding the husband’s entitlement in the fund;
d) To give the wife and/or her authorised representative a copy of any notice or any application or request by the husband which seeks release of his entitlements in the fund insofar as that release may affect the wife’s entitlements in the fund pursuant to these orders;
e) The husband be and is restrained by himself, his servants or agents from:-
i) doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the fund to which she is entitled pursuant to these orders;
ii) executing a death benefit nomination in favour of any other person doing any other act or anything which would render any part of his interest in the fund a “non-splittable payment” within the meaning of regs 13 and 14 of the Family Law (Superannuation) Regulations 2001 and the trustee of the fund give effect to these orders.
17. In the event that the superannuation split to the wife pursuant to these orders can be rolled over into a separate account, each of the parties shall do all such things and acts and execute all such documents as may be necessary to facilitate and implement that roll over.
18. The wife’s application for lump sum spousal maintenance is dismissed.
19. If a party fails to sign any document or instrument that he or she are required to sign to give effect to this Order within 14 days of any request being made of him or her, then pursuant to s 106A a Registrar of this Court sign on behalf of the defaulting party and it is sufficient proof of non-compliance if the solicitor representing the party who requests execution pursuant to s 106A files and serves an affidavit by himself or herself describing the non-compliance.
Child support
20. Pursuant to s 117 (1) of the Child Support (Assessment) Act 1989, there be a departure from the administrative assessment of child support payable by Mr Dettoni to Ms Pedace (formerly known as Ms Dettoni) in respect of the children G born ... 2005 and H born … 2008 and the child support income amount of Mr Dettoni be set at $76,700 per annum in respect of the assessment period 1 August 2016 to 31 July 2019.
21. For the assessment period each party provide the other by email and by pre-paid post with:-
a) a copy of his or her Group Certificate(s) for all employment during the financial year and a copy of his or her income tax assessment, as issued by the Australian Tax Office not later than after receipt by him of the income tax assessment;
b) a copy of his or her terms of employment or notice of change of salary within seven days of receipt by him or her of the said terms or notice.
22. Pursuant to s 124 (1) of the Child Support (Assessment) Act (Cth) 1989 by Mr Dettoni pay to and reimburse Mr Pedace for:-
a) An amount equivalent to one half of recommended books, stationery, recommended equipment and compulsory school camps for the attendance of the children, or either of them, at primary and secondary school;
b) An amount equivalent to one half of all reasonable fees, levies and recommended uniforms for the attendance of the children, or either of them, at I School;
c) In respect of any child who commences secondary school, an amount equivalent to one half of all reasonable fees and levies (but not uniforms) as if the child was a student at the government high school situated closest to the residence of the wife.
23. To facilitate the reimbursement provided for in the preceding paragraph the wife provide the husband with a list of items recommended by the school and a receipt for her purchases of those items not less than one month after purchase and the husband pay the money to which the wife is entitled not less than 21 days after provision of the receipt.
24. IT IS DIRECTED that a Registrar of this Registry of the Court send a copy of these Reasons for Decision to the Proper Officer of the Child Support Agency under cover of a letter marked “Reference No. …” and requesting that the copy reasons remain on the Agency’s file.
25. Without limiting the operation of the preceding paragraph of this Order, Mr Dettoni and Ms Pedace be and are hereby each at liberty to provide the Proper Officer of the Child Support Agency with a copy of these Reasons for Decision.
26. If an application for child support is filed within 3 years of this Order it may be listed before me for directions.
Costs
27. The husband pay the wife’s costs of and incidental to her application filed 30 March 2015 and the hearing on 22 June 2015 including the costs incurred by the wife for implementation of the Order made on 22 June 2015, such costs to be assessed in accordance with the Itemised Scale of Costs (schedule 3 of the Family Law Rules 2004 (Cth) (“the FLR”)).
28. In the absence of agreement about the quantum of costs being confirmed in writing within 14 days after delivery of a bill in assessable form, such costs be assessed by a Registrar of the Court in accordance with Chapter 19 of the FLR.
29. Any party wishing to make an application for other costs of the proceedings do so in accordance with the FLR.
Generally
30. I reserve liberty to the parties to apply in relation to refinement or implementation of this Order including if the husband sells the Suburb C property for the purpose of making the payment.
31. Otherwise all extant applications be and are hereby dismissed and the matter be removed from the docket of the Honourable Justice Bennett.
32. All subpoena be returned to the party producing same at the expiration of the appeal period.
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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