Pejakovski & Pejakovski
[2023] FedCFamC1F 743
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pejakovski & Pejakovski [2023] FedCFamC1F 743
File number(s): NCC 2997 of 2017 Judgment of: SMITH J Date of judgment: 2 May 2023 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Consent Orders – Two real properties - Husband to pay Wife sum of $94,445.55 – Husband to pay Wife sum of $292,500.00 - Superannuation – Family Law Act 1975 (Cth), s 90XT – Just and equitable Legislation: Family Law Act 1975 (Cth) Pts VIIIB, XIII, ss 90XT(1), 90XT(4), 106A
Family Law (Superannuation) Regulations 2001 (Cth) Part VI
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.04
Cases cited: Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52 Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 1–4 May 2023 Place: Newcastle Counsel for the Applicant: Mr Kent Solicitor for the Applicant: Effective Legal Solutions Counsel for the Respondent: Mr Gallimore Solicitor for the Respondent: Katie Smith Solicitor ORDERS
NCC 2997 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PEJAKOVSKI
Applicant
AND: MS PEJAKOVSKI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
2 MAY 2023
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
1.Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Final Property Orders be made in accordance with the document attached hereto.
AND THE COURT NOTES:
A.The parties have provided evidence that the superannuation fund was given a procedural fairness letter regarding a proposed superannuation split of $70,000. The superannuation fund raised some minor issues around wording but did not raise any concerns. The current orders made are in the sum of $105,096.50. It seems unlikely that the superannuation fund would have any difficulty given that they have had substantial notice.
B.A copy of these orders should be provided to the superannuation fund so that they are aware that if they do have any concerns the court will consider those concerns on application to the Court.
C.The parenting aspect of this proceeding remains listed for final hearing.
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND FILE NO: (P)NCC2997/2017
FAMILY COURT OF AUSTRALIA(DIVISION 1)
BETWEEN:
MR PEJAKOVSKI (Applicant)
AND:
MS PEJAKOVSKI (Respondent)
AND:
INDEPENDENT CHILDREN’S LAWYERBEFORE: Smith J
MINUTE OF CONSENT ORDER – PROPERTY PROCEEDINGS
The Court orders, on a final basis, that:
Suburb C Property1.Within 120 days of the date of these orders, the applicant husband shall pay to the respondent wife or as she directs the amount of $94,445.55.
(a)The Husband shall within 120 days of the date of these Orders do all such acts and things and sign all such deeds, documents and instruments as may be necessary to refinance the loan and discharge the mortgage number …61 encumbering the real property situated at B Street, Suburb C NSW (Folio ID …)) (‘the Suburb C Property’), or otherwise renegotiate the loan secured by mortgage number …61 such that the wife is no longer liable for any payment due under such loan or mortgage, to the effect that the Wife shall have no further liability with respect to such loan or mortgage. The costs thereof will be borne by the parties equally.
2.In the event that the applicant husband fails to make payment to the respondent wife of the amount pursuant to Order 1 by the time required pursuant to Order 1, then the applicant and respondent shall do all things and sign all documents so as to list the property situate and known as B Street, Suburb C, NSW (the Suburb C Property) for sale by private treaty with an agent and at a price to be agreed between the applicant and the respondent and, in the absence of agreement at a price determined by the President at the time being of the Real Estate Institute of NSW or their nominee, and the applicant and respondent shall do all things reasonable to effect the sale of the Suburb C Property including, without limiting the foregoing:
(a)Listing and advertising the property for sale with an agent;
(b)Allowing inspection of the Suburb C Property at reasonable times by agents and prospective purchasers;
(c)Instructing solicitors to act on their behalf in the conveyancing transaction and attending upon them to sign all requisite documents.
3.In the event that the contract for sale of the Suburb C Property has not exchanged within four months of the date of the Suburb C Property being listed for sale, the applicant and respondent shall do all things and sign all documents to list and advertise the Suburb C Property for sale by public auction at a price to be determined by the agent or auctioneer, having regard to the prevailing market conditions and any prior offer, and the applicant and respondent shall do all things reasonable to effect the sale of the Suburb C Property by auction including, without limiting the foregoing:
(a)Listing and advertising the property for sale by auction with an agent;
(b)Allowing inspection of the Suburb C Property at reasonable times by agents and prospective purchasers;
(c)Instructing solicitors to act on their behalf in the conveyancing transaction and attending upon them to sign all requisite documents;
(d)Attending at the auction.
4.The proceeds of sale of the Suburb C Property shall be distributed as follows:
(a)Agent’s fees;
(b)Auctioneer’s fees, if any;
(c)Legal fees of an incidental to the sale;
(d)Any amount required to discharge the mortgage in favour of any bank secured over the Suburb C Property;
(e)To D Council any rate adjustment;
(f)To the trust account of the husband’s solicitor, the amount of $85,000.00 (the trust amount) as provision for Capital Gains Tax on the sale of the Suburb C property;
(g)To the respondent wife or as she directs an amount calculated by use of the following formula:
(Sale price – payments pursuant to orders 4(a)-(e) x 45%) - (husband’s notional capital gains tax x 45%)
(h)The balance to the applicant husband;
(i)For the purpose of the formula in Order 4(g), the term “husband’s notional capital gains tax” shall mean the amount of $85,000.00;
(j)No later than the due date for lodgement of the husband’s income tax return for the financial year in which the Suburb C Property is sold, the applicant husband shall direct payment to the wife from the proceeds held on trust pursuant to Order 4(f) an amount calculated by use of the following formula:
(the trust amount – husband’s actual capital gains tax) x 45%
(k)For the purpose of the formula in Order 4(i), the term “husband’s actual capital gains tax” shall mean the amount calculated by computing the assessed income tax payable (or refundable) by the husband in his income tax return including the capital gain on sale of the Suburb C property, less the amount of income tax payable (or refundable) by the husband had the capital gain on sale of the Suburb C property not been included in that income tax return.
Suburb F Property
5.Within 120 days of the date of these orders, the applicant husband shall pay to the respondent wife or as she directs the amount of $292,500.00.
6.Upon payment to the respondent wife of the amount pursuant to Order 5, the respondent wife shall relinquish any right, title and interest standing to her name in the property situate and known as E Street, Suburb F, NSW (the Suburb F property), and shall do all things and sign all documents to transfer her share in the Suburb F property to the applicant husband.
7.In the event that the applicant husband fails to make payment to the respondent wife of the amount pursuant to Order 5 by the time required pursuant to Order 5, then the applicant and respondent shall do all things and sign all documents so as to list the Suburb F property for sale by private treaty with an agent and at a price to be agreed between the applicant and the respondent and, in the absence of agreement at a price determined by the President at the time being of the Real Estate Institute of NSW or their nominee, and the applicant and respondent shall do all things reasonable to effect the sale of the Suburb F Property including, without limiting the foregoing:
(a)Listing and advertising the property for sale with an agent;
(b)Allowing inspection of the Suburb F Property at reasonable times by agents and prospective purchasers;
(c)Instructing solicitors to act on their behalf in the conveyancing transaction and attending upon them to sign all requisite documents.
8.In the event that the contract for sale of the Suburb F Property has not exchanged within four months of the date of the Suburb F property being listed for sale, the applicant and respondent shall do all things and sign all documents to list and advertise the Suburb F Property for sale by public auction at a price to be determined by the agent or auctioneer, having regard to the prevailing market conditions and any prior offer, and the applicant and respondent shall do all things reasonable to effect the sale of the Suburb F Property by auction including, without limiting the foregoing:
(a)Listing and advertising the property for sale by auction with an agent;
(b)Allowing inspection of the Suburb F Property at reasonable times by agents and prospective purchasers;
(c)Instructing solicitors to act on their behalf in the conveyancing transaction and attending upon them to sign all requisite documents;
(d)Attending at the auction.
9.The proceeds of sale of the Suburb F property shall be distributed as follows:
(a)Agent’s fees;
(b)Auctioneer’s fees, if any;
(c)Legal fees of an incidental to the sale;
(d)To the respondent wife or as she directs an amount equal to 45% of the total proceeds of sale of the Suburb F property; and
(e)The balance to the husband.
Superannuation
10.A base amount of $105,096.50 is allocated as required by s 90XT(4) of the Family Law Act 1975 to the respondent wife Ms Pejakovski out of the applicant husband Mr Pejakovski’s interest in Superannuation Fund 1.
11.In accordance with paragraph 90XT(1)(a) of the Family Law Act 1975:
(a)The respondent wife Ms Pejakovski is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)The applicant husband Mr Pejakovski’s entitlement to payments out of the interest in Superannuation Fund 1 and the entitlement of any such other person to whom a splittable payment may be payable is correspondingly reduced by force of this Order.
12.That the trustee of Superannuation Fund 1 do all acts and things and sign all documents as may be necessary to:
(a)Calculate in accordance with the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement created for the respondent wife Ms Pejakovski by these Orders; and
(b)Pay out the entitlement whenever the trustee of Superannuation Fund 1 makes a splittable payment out of the applicant husband Mr Pejakovski’s interest in the fund.
13.Orders 10 to 12 have effect from the operative time, and the operative time is four business days after the date on which a certified copy of the final sealed and signed Orders is served upon the Trustee.
14.These Orders bind the trustee of Superannuation Fund 1.
Other Property Orders
15.The applicant husband shall meet, as and when they fall due, all outgoings and payments, including but not limited to payments pursuant to any registered mortgage, payments of rates and charges and land taxes, on the Suburb C and Suburb F Properties, and shall keep the Suburb C and Suburb F Properties fully insured.
16.The applicant shall not encumber or further deal with the Suburb F and/or Suburb C properties without the prior written consent of the respondent wife, save for the purpose of leasing said properties or in compliance with these orders or after the husband’s compliance with Orders 1 and 5.
17.No later than 14 days of payment by the applicant husband to the respondent wife or at her direction pursuant to either Order 1 or Order 5, the respondent wife shall pay her share of outstanding school fees to G School in the amount of the wife’s share of said school fees as at the date of payment.
18.Save as otherwise provided by these Orders, as between the applicant and respondent, each be declared the owner of all items of personalty, realty, motor vehicles, choses in action or bank accounts currently in their name, control or possession as at the date hereof.
19.Save as otherwise provided by these Orders, as between the applicant and respondent, each shall indemnify the other against any and all liability in their sole name regardless of when or howsoever incurred.
20.In the event that either the applicant or respondent fails, refuses or neglects to sign any document or do any thing required to give effect to these Orders within five days of a written request to do so, then the Registrar of the Court is hereby empowered pursuant to s 106A of the Family Law Act 1975 to sign such document on behalf of the party so failing, refusing or neglecting.
21.Each party shall bear their own costs of the property proceedings.
Notations
The Court notes that:A.The intention of the parties underlying Order 4 is that the wife shall receive 45% of the net sale proceeds of the Suburb C property, which portion shall include an allowance for 45% of the capital gains tax liability incurred by the husband on sale of the Suburb C property, and that the husband shall receive 55% of the net sale proceeds of the Suburb C property, which portion shall include an allowance for 55% of the capital gains tax liability incurred by the husband on the sale of the Suburb C property.
____________________ _____________________
Applicant Husband Respondent Wife
_____________________ ______________________
Applicant’s Solicitor Respondent’s SolicitorNote: 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pejakovski & Pejakovski has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
Smith J:
This matter is listed before me for hearing in respect of both property adjustment proceedings and parenting proceedings. Both parties are represented by solicitors and counsel. I note that the Independent Children’s Lawyer (“ICL”) is also represented by counsel. At the moment, I deal only with the property proceedings. The parties, no doubt ably assisted by their legal representatives, have come to a resolution which they have reduced to writing.
The net effect of the proposed adjustment order is that the husband should receive 55 per cent and the wife 45 per cent of the net value of the two real properties owned by the parties, and that there should be a superannuation splitting order in favour of the wife, so that, taking into account also a notional sum she has drawn down on compassionate grounds, the parties should each receive 50 per cent of the superannuation sum.
I have had the opportunity of reading the material in the case and the court books provided before the trial, and also in particular across the last day while the parties have been in negotiation. I am satisfied that an order should be made, taking into account the principles in Stanford & Stanford (2012) 247 CLR 108, given that it is clearly necessary that there be some adjustment in order to bring to an end the financial relations of the parties.
Giving due consideration to the relevant factors in the Family Law Act1975 (Cth) relating to contributions and adjustments, noting that I have not heard the matter, I am, nevertheless, comfortably satisfied that the orders proposed by the parties are sensible and reflect a just and equitable resolution, comfortably within the appropriate range.
I note that the parties have provided evidence that the superannuation fund was given a procedural fairness letter in respect of a proposed superannuation split of $70,000. The superannuation fund raised some minor issues around the wording but did not have any significant concerns. The current orders that I make are in the sum of $105,096.50. It seems unlikely that the superannuation fund would have any difficulty, given that they have had substantial notice.
A copy of these orders should be provided to the superannuation fund so that they are aware that if they do have any concerns, the Court will consider those concerns on application to the Court.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 30 August 2023
0