FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pfeiffer & Pfeiffer [2023] FedCFamC2F 1131
File number(s): LNC 123 of 2022 Judgment of: JUDGE TURNBULL Date of judgment: 29 August 2023 Catchwords: FAMILY LAW – PROPERTY ADJUSTMENT – substantial agreement about the facts — agreement that there be a 15% adjustment in the Wife’s favour for s75(2) factors — agreement regarding a superannuation splitting order— narrow issues – whether Husband’s expenditure of his long service leave should be added back to the pool — assessment of contributions to the acquisition and maintenance of the property pool Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 79(1), 79(4) Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
C & C [1998] FamCA 143
Clauson & Clauson (1995) FLC 92—595
Dawes & Dawes [1989] FamCA 71
Dovgan & Dovgan [2021] FamCA 306
Gadhavi & Gadhavi [2023] FedCFamC1A 117
Grier & Malphas [2016] FamCAFC 84
Hickey & Hickey & Hickey [2003] FamCA 395
Jabour & Jabour [2019] FamCAFC 78
Kowaliw & Kowaliw (1981) FLC 91—092
Lotta & Lotta [2017] FamCA 50
Mallett & Mallett (1984) 156 CLR 605
Mayne & Mayne [2011] FamCAFC 192
Omacini & Omacini; sub nom AJO & GRO [2005] FamCA 195
Stanford & Stanford (2012) 247 CLR 108
Teal & Teal [2010] FamCAFC 120
Vass & Vass [2015] FamCAFC 51
Warwick & Cutler [2016] FamCA 934Division: Division 2 Family Law Number of paragraphs: 47 Date of last submission/s: 24 August 2023 Date of hearing: 22 – 24 August 2023 Place: Launceston Counsel for the Applicant: Mr R Murray Solicitors for the Applicant Murray & Associates Counsel for the Respondent: Mr T McKenna Solicitors for the Respondent Murdoch Clarke ORDERS
LNC 123 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PFEIFFER
Applicant
AND: MR PFEIFFER
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
29 AUGUST 2023
THE COURT ORDERS THAT:
1.Within sixty (60) days of the date of this Order the Wife transfer (‘the transfer’) to the Husband all her right, title and interest in the property at B Street, Suburb C in Queensland being more particularly described as lot … on registered plan …, Title reference Volume … Folio … and the Husband be solely liable for all liabilities, outgoings and expenses relating to that property;
2.Contemporaneously with the transfer, the Husband payout in full or refinance into his sole name and at his expense the D Bank loan secured by registered mortgage number … and obtain a full discharge of such mortgage;
3.Within seven (7) days of the date of this Order, the parties do all such necessary acts and things and sign all documents so as to pay to the parties' the following sums from the balance net proceeds of sale of the property at E Street, Suburb F held in the conveyancing solicitors trust account — such balance being approximately $167,109.00:
(a)$31,350 to the Husband;
(b)The balance (including any interest earned) to the Wife.
4.In accordance with section 90XT(1)(a)…
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CaseChat Overview and Summary
The court addressed the inclusion of the Husband's long service leave, determining that it should be added back to the pool, thereby increasing the value of the property attributable to the Husband. The court also considered the contributions to the property, taking into account both financial and non-financial contributions. After thorough examination, the court found that the Wife’s contributions were significant and warranted the agreed 15% adjustment in her favour.
The orders made by the court mandated the Wife to transfer her interest in the property to the Husband, while the Husband was to pay off or refinance a specific bank loan and obtain a discharge of the mortgage. The court also ordered the division of the net proceeds from the sale of another property, with the Husband receiving a specified amount and the Wife receiving the balance. Additionally, the court issued a superannuation splitting order, entitling the Wife to a specified amount from the Husband’s superannuation fund. Finally, the court clarified the ownership and liability for other properties and assets, ensuring that each party was solely entitled and liable for their respective items.
Orders
Orders of the court
LNC 123 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS PFEIFFER
Applicant
AND:
MR PFEIFFER
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
29 AUGUST 2023
THE COURT ORDERS THAT:
1. Within sixty (60) days of the date of this Order the Wife transfer (‘the transfer’) to the Husband all her right, title and interest in the property at B Street, Suburb C in Queensland being more particularly described as lot … on registered plan …, Title reference Volume … Folio … and the Husband be solely liable for all liabilities, outgoings and expenses relating to that property;
2. Contemporaneously with the transfer, the Husband payout in full or refinance into his sole name and at his expense the D Bank loan secured by registered mortgage number … and obtain a full discharge of such mortgage;
3. Within seven (7) days of the date of this Order, the parties do all such necessary acts and things and sign all documents so as to pay to the parties' the following sums from the balance net proceeds of sale of the property at E Street, Suburb F held in the conveyancing solicitors trust account — such balance being approximately $167,109.00:
(a) $31,350 to the Husband;
(b) The balance (including any interest earned) to the Wife.
4. In accordance with section 90XT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of Mr Pfeiffer from his interest in Super Fund 1, Ms Pfeiffer is entitled to be paid (by the Trustee of Super Fund 1) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $103,000 and there is a corresponding reduction in the entitlement Mr Pfeiffer would have had but for this Order;
5. The operative time for paragraph 4 of this Order is four (4) business days after the service of this Order on the Trustee;
6. Unless otherwise specified in this Order:
(a) Each party be solely entitled to the exclusion of the other to all other property, including any real estate registered in a party’s sole name, motor vehicles and chattels of whatsoever nature and kind in the possession of such party as at the date of this Order and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank's record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions of payment out of such entitlement;
(b) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order;
(c) Either party is at liberty to provide a copy of this Order to any third party necessary to ensure implementation and compliance with this Order.
7. Both parties' do all acts and things and sign all necessary documents so as to give full effect to the terms of this Order;
8. In the event of either party refusing or neglecting to sign any documents required to be signed to give full effect to the terms of this Order, including the necessary documents to effect a sale, transfer or assignment of relevant property, within seven days of being requested by a party, then the Registrar of the Court, pursuant to Section 106A(1) of the Family Law Act, 1975, is hereby appointed and empowered, to execute such documents in the name of the defaulting party and to do all acts and things necessary to give validity and operation to such;
9. Save for this Order, all extant property and spousal maintenance orders are discharged;
10. All extant property and spousal maintenance applications are dismissed.
AND THE COURT IS ASKED TO NOTE
A. The parties note that this splitting Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004, the Family Law (Superannuation) Regulations 2001 and the Super Fund 1 Trust Deed which together may provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
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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