Perrin and Perrin (No.2)

[2018] FCCA 633

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERRIN & PERRIN (No.2) [2018] FCCA 633

Catchwords:
FAMILY LAW – Property orders.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS PERRIN

Respondent: MR PERRIN

File Number: NCC 556 of 2015

Judgment of: Judge Myers

Hearing date: 15 February 2018

Date of Last Submission: 15 February 2018

Delivered at: Parramatta

Delivered on: 15 February 2018

REPRESENTATION

Counsel for the Applicant: Mr Baston

Solicitors for the Applicant: Mr Mitchell

Counsel for the Respondent: Mr Weightman

Solicitors for the Respondent: Mr Collett

ORDERS

The Court makes the following orders:

1. Within 28 days of the date of these orders, the husband shall do all such acts and things to pay the following;

   (a)The joint (omitted) Bank credit card in the amount of $10,306.00.

   (b)The joint loan with the (omitted) Bank (loan (omitted)) in the amount of $4,956.00.

   (c)The wife’s (omitted) Bank overdraft in the amount of $3,228.00.

2. Simultaneous with the performance of orders 1.a. and 1.b. the parties shall do all such acts and things required to close the joint (omitted) credit card account and the joint loan with the (omitted) Bank (loan (omitted)).

3. Within 42 days of the date of these orders, the wife shall discharge the loans with the (omitted) Bank ((omitted)), (omitted) and (omitted) (“the Property A mortgages”) which are secured on Property A (“the Property A property”).

4. The husband shall sign all such documents required to facilitate the wife complying with order 3.

5. Simultaneously with the performance of order 3, the husband shall do all such acts and things that may be required to transfer to the wife all his right, title and interest in the Property A property.

6. Should the wife fail to comply with order 3;

   (a)The Property A property shall be listed for sale by private treaty with such real estate agent as agreed between the parties and failing agreement within 14 days from the date of the wife’s failure to comply with order 3, the real estate agent will be as nominated by the Proper Officer of the Real Estate Institute or his nominee at the request of the parties or either of them;

   (b)The list price of the property shall be such amount as is agreed between the parties and failing agreement, the list price will be as nominated by the real estate agent;

   (c)The parties shall give such instructions as are necessary to a solicitor to prepare a contract of sale and failing agreement, then the parties will instruct (omitted) to prepare contracts;

   (d)The sale price of the property shall be such amount as is agreed between the parties and failing agreement, any offer to buy the property that is at least 95% of the list price shall be accepted by the parties as the sale price;

   (e)The parties are to co-operate in every reasonable way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;

   (f)That upon agreement being reached for sale of the property, the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;

   (g)In the event the Property A property is not sold by private treaty pursuant to this order on or before 3 months from the date the Property A property is listed on the market, then the husband and wife shall do all acts and sign all documents as are necessary to sell the Property A property by auction and the following shall apply;

   (i)The Property A property shall be listed with the agent appointed under Order 1.1 (hereinafter called "the Auctioneer");

   (ii)The parties shall execute all documents requested by the auctioneer for sale of the property by auction;

   (iii)The reserve price of the Property A property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer;

   (iv)The wife shall pay to the auctioneer any sums requested for advertising or auction expenses and if the wife fails to pay such expenses, the husband shall pay such expenses;

   (v)The parties shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer and failing agreement, then the parties will instruct (omitted) to prepare contracts;

   (vi)The parties shall co-operate in every way with the auctioneer in relation to the sale by auction, including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction;

   (vii)That the parties shall attend at the auction and negotiate with the highest bidder in good faith in the event of the reserve price not being reached;

   (viii)The sale price of the Property A property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached, the sale price of the property shall be such amount as is agreed between the parties or failing agreement, any offer received after the auction to buy the property at a price that is at least 95% of the reserve price shall be accepted by the parties;

   (ix)In the event that the Property A property is not sold at the auction pursuant to this order or within 14 days after the date of the auction by further negotiation, then the parties shall cause a further auction of the property to be held within 3 months, and in the event of no sale each subsequent 3 months until sale after the date of the first auction with the reserve price reduced by 5% at each subsequent auction.

   (h)The proceeds of sale of the Property A property shall be paid in the following manner and priority;

   (i)Payment of the agent's commission, auctioneer’s fees and advertising or other expenses, if any, payable on the sale;

   (ii)Payment to the (omitted) Bank to discharge the Property A mortgages;

   (iii)Payment to the husband of any expenses paid by him in accordance with order 5.g.iv;

   (iv)Payment of the balance to the wife;

7. Pending the re-finance of the Property A property or the sale of Property A property, the wife shall indemnify the husband for any amount the mortgage exceeds $289,430.00.

8. That a base amount of $246,554.00 is allocated, as required by s.90MT(4) of the Family Law Act 1975, to Ms Perrin out of Mr Perrin’s interest in the (omitted) Superannuation Scheme.

9. That in accordance with section 90MT(1)(a) of the Family Law Act 1975;

   (a)Ms Perrin is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (b)Mr Perrin’s entitlement to payments out of their interest in the (omitted) Superannuation Scheme and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.

10. That Trustee of the (omitted) Superannuation Scheme (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

    (a)Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for Ms Perrin by clause 1 of this order; and

    (b)Pay the entitlement whenever the Trustee makes a splittable payment out of Mr Perrin’s interest in the (omitted) Superannuation Scheme.

11. That these orders have effect from the operative time and the operative time for this order is four business days after service of the order on the Trustee.

12. That these orders bind the Trustee of the (omitted) Superannuation Scheme.

13. Except as otherwise provided by these orders, each party shall retain all such property, liabilities and superannuation in their possession and control to the exclusion of the other party.

14. In the event either party fails to sign any necessary documents or instruments or to do any acts required or contemplated by these orders to be done, with such failure continuing for 14 days, then the Registrar of the court shall pursuant to section 106A of the Family Law Act 1975, have the power to execute any documents or instruments in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these orders.

15. Any and all outstanding applications for property-adjustment and/or spousal maintenance are dismissed.

16. Order 2 of the previous Orders made 14 August 2017 are discharged.

17. The Court stays the operation of the final property Orders made 15 February 2018 pending determination of the appeal of the Applicant wife.

IT IS NOTED that publication of this judgment under the pseudonym Perrin & Perrin (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

NCC 556 of 2015

MS PERRIN

Applicant

And

MR PERRIN

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is a matter that comes before the Court today following the applicant wife, Ms Perrin, having caused to be filed an appeal in respect of a decision made by the Court on 18 May 2017.  The orders made on 18 May 2017 provided that the Court found it was just and equitable to make an adjustment of property as to 56.5% to the husband and 43.5% to the wife. The orders allowed the parties a period of 14 days in which they could provide a set of Minutes that divided their property in the percentage found by the Court, referring to a balance sheet that was incorporated into the orders that were made by the Court.

2. In the absence of the parties providing to the Court a set of Minutes, the Court proposed to thereafter make a set of orders in accordance with the percentages the Court had found were just and equitable, dividing the parties assets as provided for in the balance sheet that formed Annexure “A” of those orders. 

3. Following the making of the orders on 18 May 2017, but prior to the Court either making a final set of orders adjusting property between the parties, or the parties having provided the Court a Minute of Order, the wife lodged an appeal in respect of the decision made 18 May 2017.

4. The matter comes before the Court today as a result of the application in a case filed by the wife on 13 February 2018, where the wife asked the Court to make a set of orders, in effect, dividing the assets between the parties in accordance with the percentage split as provided in the orders made 18 May 2017, having regards to the balance sheet.  The wife also seeks that the previous orders suspending the operation of orders made on 14 August 2017 be discharged. The husband asks the Court make a set of orders.

5. There is a difference between the parties as to the orders that they seek before the Court today.  The husband has caused to be provided to the Court a Minute of Order that forms Exhibit “A” in the proceedings.  The wife asks that the Court make orders in accordance with the Minute contained within the material filed by her. 

6. The difference between the parties’ positions is not one where the parties do not argue as to the adjustment between the parties on a percentage basis.  Both parties’ position provides that the mortgage over the property that the wife is to receive is to be discharged, removing the husband as borrower or guarantor.

7. The wife seeks a payment from the husband’s superannuation.  The husband seeks to make a payment to the wife from his superannuation.  The difference in the parties’ position is effectively one where the payment from the husband’s superannuation sought by the wife is some $42,876 more than that sought by the husband in circumstances where that sum equates to the shortfall that the wife would have to find to discharge the mortgage.  If the Court made an order for the superannuation payment in accordance with the percentage adjustment provided for in the orders of 18 May 2017, the wife would need to, effectively, find $42,876 in order to discharge the existing mortgage.

8. What the wife seeks is that the husband pay to her from his superannuation a greater amount, being the extra $42,876, that the wife can then utilise to discharge the mortgage.  In doing so, however, it would place the wife and the husband in a position where the husband would become a creditor of the wife and the wife would, effectively, owe back to the husband the sum of $42,876. 

9. Submissions have been made by counsel for the respondent and also the solicitor for the applicant today with respect to whether the husband being left as a creditor to the wife is a suitable arrangement or otherwise.

10. It is the wife’s position that whatever orders the Court makes today should be stayed. Mr Weightman of Counsel for the husband indicated that his client does not oppose the staying of the orders that might be made today. 

11. If the Court were to accede to the orders sought by the wife, it has two effects.  The first is that it does not sever the financial relationship between the parties. 

12. Section 81 of the Family Law Act provides the Court a duty to end financial relations. Section 81 important provides the Court shall as far as practicable make such orders as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them.

13. If the Court made orders in accordance with those sought by the wife it would leave the parties in a position where they had an ongoing financial relationship, being that of the husband as the wife’s creditor of some $42,876. Such orders would not sever or finally determine their financial relationship. Such orders could lead to the institution of further proceedings should the husband seek to recover from the wife that amount. To make the orders sought by the wife would not, in the view of the Court, comply with the provisions set out at section 81 of the Family Law Act under which the Court has a duty to end financial relations.

14. The second effect is one where the money that would be paid to the wife from the husband’s superannuation are funds being split, not from an ordinary accumulated superannuation fund, but instead from an allocated pension fund.  The effect of the additional split on the husband’s position would be that his allocated pension would be reduced further than it would have otherwise been had the Court made those orders sought by the husband.  That is, the $42,876 extra paid to the wife by way of superannuation split and then owed back to the husband would come out of the husband’s allocated pension superannuation fund, reducing down the amount that he would receive through his pension because of that split.

15. Having heard evidence during the hearing as to the effect of payments from the husband’s fund by way of split the Court understands the husband would not be in a position where he could recover the sum of $42,876 from the wife, pay it back into his fund and, in effect, top back up his superannuation and have the pension payments increased. The husband would instead receive cash from the wife.  The husband would have commuted some of his superannuation and reduced his pension, and he simply does not want to do that.  It was the subject of the proceedings.  The husband was very clear in the evidence he gave.  He wants to keep as much of the payments he might receive from his allocated pension and he does not want cash in lieu of payments.

16. The question then the Court must ask itself is, are the orders sought by the wife just and equitable.  The answer to that question is no, they are not.  They are not just and equitable orders because it would see the husband in a position where he would receive cash instead of a pension.  He wants to receive his pension, not cash.  It would place the husband in a difficult position in respect of his desires to retain as much of his pension as he could. The making of the orders sought by the wife would see the husband’s allocated pension reduced and he would be left in a position where he could not top it back up and reinstate the size of his pension.

17. It is the view of the Court that the orders sought by the wife are not just and equitable because such orders would be taking money from the husband’s allocated pension fund. The husband would not be able to top the fund up upon being repaid. The orders sought by the wife do not comply with section 81 where the orders would see the parties in a position where the husband would be the wife’s creditor. It could lead to the institution of further proceedings and it does not sever their financial relationship.

18. Having regards to the submissions made by the parties and their respective positions, the Court finds that the orders sought by the husband are just and equitable. They as best as is capable, finally determine the financial relationship between the parties and avoid further proceedings between them as is required pursuant to section 81 of the Family Law Act.

19. The Court makes the following orders:

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 27 March 2018