Perica & Perica (No 3)

Case [2023] FedCFamC2F 1669


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Perica & Perica (No 3) [2023] FedCFamC2F 1669   

File number(s): HBC 984 of 2021
Judgment of: JUDGE TAGLIERI
Date of judgment: 20 December 2023
Catchwords: FAMILY LAW – property – 16 year relationship – where husband seeks that matter is determined on a mathematical approach – where husband brought matrimonial home into the relationship – court determined matter on a holistic approach, as required by authorities – two-pool approach – determination of a 60/40 split in favour of the husband on non-superannuation pool – determination that each party retain their own superannuation  
Legislation:

 Family Law Act 1975 (Cth) ss 4AB, 75(2), 75(2)(b), 75(2)(k), 79, 79(2), 79(4)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) pt 7.1

Duties Act 2001 (Tas) s 56

Cases cited:

 C & C (2005) FLC 93-220

Daultrey & Tavener [2020] FCCA 399

Finau & Finau [2018] FamCA 49

Gadhavi & Gadhavi [2023] FedCFamC1A 117

Horrigan & Horrigan [2020] FamCAFC 25

In the Marriage of Hickey 30 Fam LR 355

Jabour & Jabour [2019] FamCAFC 78

Kennon v Spry (2008) 238 CLR 366

Pierce v Pierce (1999) FLC 92-844

Sagacio & Sagacio [2019] FCCA 1111

Stanford and Stanford [2012] HCA 52

Wagstaff and Wagstaff [2018] FCCA 927

Yarrow & Yarrow [2022] FedCFamC1A 135

Division: Division 2 Family Law
Number of paragraphs: 77
Date of hearing: 24 and 25 July 2023
Place: Hobart
For the Applicant: In person
Counsel for the Respondent: Mr McKenna
Solicitor for the Respondent: Monk Lawyers

ORDERS

HBC 984 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR PERICA

Applicant

AND:

MS PERICA

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

20 DECEMBER 2023

THE COURT ORDERS THAT:

1.Within 60 days of these Orders, the property at C Street, Suburb D in Tasmania (“Suburb D”) be placed on the market and sold in accordance with paragraph 2 of this Order (“the Sale”).

2.The Sale will be conducted as follows:

(a)Within 21 days of the date of these Orders, the parties will appoint a real estate agent agreed between them, and in the event agreement cannot be reached, the agent will be such person nominated by the President of the Real Estate Institute of Tasmania (“the Agent”);

(b)The Respondent shall vacate Suburb D within 60 days of the date of these Orders;

(c)Following the Respondent vacating Suburb D, and pending its sale, neither party shall be permitted to occupy Suburb D as a residence;

(d)The listed sale price will be as recommended by the Agent and within 10 per cent of the agreed valuation of the property, and the method of sale and manner of advertising for sale of Suburb D will be as recommended by the Agent;

(e)The terms and conditions of sale of Suburb D, including the acceptance or rejection of any offer to purchase the property, will be in accordance with the recommendation of the Agent appointed pursuant to Order 2(a) of these Orders;

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AGLC
Perica & Perica (No 3) [2023] FedCFamC2F 1669
Case
[2023] FedCFamC2F 1669
Decision Date

CaseChat Overview and Summary

In the matter of Perica & Perica (No 3), the Federal Circuit and Family Court of Australia (Division 2) was tasked with resolving a property dispute between the former partners of a 16-year relationship. The applicant, Mr Perica, sought a mathematical approach to the division of the matrimonial assets, while the respondent, Ms Perica, argued for a holistic approach as mandated by the legal authorities. The central issue before the court was the appropriate method for dividing the assets, specifically whether a mathematical approach or a holistic, two-pool approach should be employed.

The court considered the established legal principles that dictate the division of assets in a relationship of significant duration, emphasising the necessity for a holistic approach. It rejected the applicant's contention for a purely mathematical division and opted for a two-pool approach, which considers both superannuation and non-superannuation assets separately. The court determined that the non-superannuation assets should be divided in a 60/40 ratio in favour of the husband, while each party would retain their respective superannuation benefits. This decision aligned with the court's obligation to consider the overall fairness and the specific contributions and circumstances of each party.

The court ordered the sale of the matrimonial home in Suburb D, Tasmania, with specific timelines and conditions for the sale process and the distribution of the proceeds. It also outlined the division of personal property and liabilities, ensuring that each party retained their own assets and superannuation benefits. Additionally, the court addressed the reimbursement of stamp duty and reserved the question of costs, allowing for potential applications within a specified timeframe.

The final orders included directives for the sale of the property, the division of assets and liabilities, and the disbursement of sale proceeds. The applicant was to receive a 60% share of the net non-superannuation assets, while both parties retained their own superannuation benefits and personal items. The court also mandated specific actions for the reimbursement of stamp duty and reserved the matter of costs for potential future applications.

Orders

Orders of the court

HBC 984 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR PERICA

Applicant

AND:

MS PERICA

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

20 DECEMBER 2023

THE COURT ORDERS THAT:

1. Within 60 days of these Orders, the property at C Street, Suburb D in Tasmania (“Suburb D”) be placed on the market and sold in accordance with paragraph 2 of this Order (“the Sale”).

2. The Sale will be conducted as follows:

(a) Within 21 days of the date of these Orders, the parties will appoint a real estate agent agreed between them, and in the event agreement cannot be reached, the agent will be such person nominated by the President of the Real Estate Institute of Tasmania (“the Agent”);

(b) The Respondent shall vacate Suburb D within 60 days of the date of these Orders;

(c) Following the Respondent vacating Suburb D, and pending its sale, neither party shall be permitted to occupy Suburb D as a residence;

(d) The listed sale price will be as recommended by the Agent and within 10 per cent of the agreed valuation of the property, and the method of sale and manner of advertising for sale of Suburb D will be as recommended by the Agent;

(e) The terms and conditions of sale of Suburb D, including the acceptance or rejection of any offer to purchase the property, will be in accordance with the recommendation of the Agent appointed pursuant to Order 2(a) of these Orders;

(f) The parties must sign all documents required to effect the sale, including the Agency agreement, standard contract of sale, Transfer, and other documents required by the Agent appointed pursuant to Order 2(a) of these Orders; and

(g) The parties will engage E Lawyers to act in the conveyancing of Suburb D or, in the event of a conflict of interest, an alternate firm of solicitors agreed between the parties.

3. At the completion of the Sale, the parties must do all acts and things including but not limited to signing all documents necessary to disburse the sale proceeds of the Sale as follows:

(a) In payment of usual sale and conveyancing costs including but not exclusively, real estate agent fees, legal fees in relation to the sale of the Property, bank or other financial institution fees, council and water rates and all other state and/or federal and/or local government fees, charges and/or taxes; and

(b) In payment to the parties in such sums so as to achieve a 60/40 per cent division of net non-superannuation assets in the Applicant’s favour, to be calculated in accordance with Annexure A and each party retaining the assets liabilities attributed to them.

4. The Applicant shall be solely entitled to the following items of property:

(a) All savings and investments held by him:

(b) All benefits arising from superannuation held by or for him: and

(c) All chattels in his possession.

5. The Respondent shall be solely entitled to the following items of property:

(a) The contents of Suburb D;

(b) All savings and investments held by her;

(c) All chattels owned by her or in her possession;

(d) All benefits arising from superannuation held by or for her; and

(e) Her interest the estate of her late father, Mr F.

6. In default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.

7. The Applicant and Respondent are to complete and sign all necessary documents required to make application to the Commissioner of Stamp Duties to seek reimbursement of the sum of $15,000 paid by Applicant as stamp duty on the transfer dated early 2019 relating to Suburb D.

8. In the event that a reimbursement is made pursuant to the application referred to in Order 7 of these Orders, it is to be paid solely to the Applicant.

9. The question of the Applicant’s costs is reserved on the condition that any application for costs is filed within 28 days of the date of these Orders.

10. In respect for the Contempt Application filed 25 May 2023 and the Application for Final Orders filed 20 September 2021, the parties’ costs are reserved on the condition that any application for costs in either application is filed within 28 days of the date of these Orders.

“ANNEXURE A”

ASSETS

Description

Ownership

Value

Suburb D

To be divided

To be sold

Motor Vehicle 1

Husband

$1,000

ANZ Account No …77

Husband

$1,373

ANZ Account No …09

Husband

$2,546

ANZ Account No …99

Wife

$5,460

ANZ Online Saver Account No …01

Wife

$8,236

Motor Vehicle 2

Wife

$1,500

Household Contents

Husband

$600

Household Contents

Wife

$2,500

LIABILITIES

HECS Debt

Wife

$3,791

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).

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.

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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