FAMILY COURT OF AUSTRALIA
| PILLAI & DOSHI (NO. 3) | [2011] FamCA 165 |
| FAMILY LAW - PROPERTY SETTLEMENT – Division of property – Former matrimonial home sold and proceeds held on trust – Previous costs orders – Alleged loans and other liabilities – Add-backs – Minimal asset pool – Just and equitable division FAMILY LAW - PROPERTY SETTLEMENT – Superannuation – Splitting orders sought FAMILY LAW - PROPERTY SETTLEMENT – Domestic Violence – Apprehended violence order and domestic violence issues – Relevance to assessment of the parties’ contributions FAMILY LAW - CHILD SUPPORT – Child support departure order sought FAMILY LAW - SPOUSAL MAINTENANCE – Application for periodic spousal maintenance |
| Family Law Act 1975 (Cth) – s 75(2), s 75(2)(na), s 75(2)(o), s 75(3), s 79, s 79(2), s 79(4), s 117, s 117(2A) |
| Bulleen v Bulleen (2010) 43 Fam LR 489; [2010] FamCA 187, discussed C & C [1998] FamCA 143, applied Ferguson & Ferguson (1978) FLC 90-500; (1978) 4 Fam LR 312, cited Hickey & Hickey (2003) FLC 93-143; (2003) 30 Fam LR 355, applied JEL v DDF (2001) FLC 93-075; (2001) 28 Fam LR 1, applied Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21, applied Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17;(1986) FLC 91-712, applied Pierce v Pierce (1999) FLC 92-844; (1999) 24 Fam LR 377, cited AJO & GRO (2005) FLC 93-218; (2005) 33 Fam LR 134, cited |
| APPLICANT: | Mr Pillai |
| RESPONDENT: | Ms Doshi |
| FILE NUMBER: | DGC | 664 | of | 2007 |
| DATE DELIVERED: | 8 March 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Young J |
| HEARING DATE: | 7 & 8 February 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Ms McCreadie |
| SOLICITOR FOR THE RESPONDENT: | Perry Weston |
ORDERS
IT IS ORDERED:
THAT the net proceeds of sale and all interest accrued thereon (“the sale proceeds”) from the former matrimonial home at … N in the State of Victoria be applied as follows:
(i)first to pay to the wife’s solicitors, on behalf of the wife, a sum of $5,330 on account of previous costs orders pronounced in these proceedings;
(ii)secondly to repay a sum of $2,900 to the Westpac MasterCard, held in the sole name of the husband, in reduction of its liability;
(iii)thirdly to pay to the wife a…
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- AGLC
- Pillai and Doshi (No. 3) [2011] FamCA 165
- Case
- [2011] FamCA 165
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate distribution of the net proceeds of sale from the former matrimonial home, including the allocation of specific debts and the division of remaining funds. Further issues included the wife's entitlement to a share of the husband's superannuation, the husband's sole responsibility for certain liabilities, the division of chattels, and the return of specific personal items to the wife. The court also had to consider the dismissal of outstanding applications and the reservation of costs.
Young J ordered that the net proceeds of sale of the former matrimonial home be applied first to pay the wife's solicitors a sum for previous costs orders, then to repay a Westpac MasterCard in the husband's name, and thirdly to reimburse the wife for a sum previously paid to the husband. The balance of the sale proceeds was to be divided 65 per cent to the wife and 35 per cent to the husband. From the husband's 35 per cent share, a sum of $7,000 was to be paid to the wife's solicitors as her final entitlement to the husband's superannuation, with all other claims against his superannuation and work entitlements dismissed. The husband was to remain solely liable for specific debts, including the Westpac MasterCard, a GE credit line, and amounts owed to his parents, Mr K, his sister Ms C, and his employer S Limited. Each party was to retain their current furniture and chattels, with the exception that the husband was to return the wife's engagement ring, necklace, and bracelet(s) within fourteen days, and also provide a USB stick containing photographs of the children and significant marital events. The husband and wife were to be responsible for and indemnify each other against any other debts incurred in their own name. All extant applications by both parties were dismissed, save for the reservation of legal costs for both parties pending further application or hearing.
Orders
Orders of the court
IT IS ORDERED:
1.
THAT the net proceeds of sale and all interest accrued thereon (“the sale proceeds”) from the former matrimonial home at … N in the State of Victoria be applied as follows:
(i) first to pay to the wife’s solicitors, on behalf of the wife, a sum of $5,330 on account of previous costs orders pronounced in these proceedings;
(ii) secondly to repay a sum of $2,900 to the Westpac MasterCard, held in the sole name of the husband, in reduction of its liability;
(iii) thirdly to pay to the wife a sum of $5,000 to offset that like sum earlier paid to the husband pursuant to Court order as a partial settlement of property;
(iv) fourthly to divide the balance:
§ as to the wife - 65 per cent
§ as to the husband - 35 per cent (but subject to order 2)
2.
THAT from the husband’s 35 per cent share of the sale proceeds, and before any distribution to him thereof, a sum of $7,000 be first paid out to the wife’s solicitors on behalf of the wife as her fixed and final entitlement to share in the husband’s superannuation entitlements in R Super and thereafter her claim or right to claim against any of the husband’s superannuation and all other work entitlements be dismissed and the husband be solely entitled to retain all such benefits.
3.
THAT the husband be and remain solely liable for and responsible to repay the following liabilities:
§ the Westpac MasterCard;
§ the GE credit line;
§ his parents;
§ Mr K;
§ his sister, Ms C; and
§ S Limited (his employer).
4.
THAT subject to orders 5 and 6 the husband and wife each retain all furniture, chattels, motor vehicles and other household items now in their respective possession.
5.
THAT within fourteen (14) days the husband deliver or cause to be delivered to the wife’s solicitors, in good order, the wife’s engagement ring, necklace and bracelet(s).
6.
THAT within fourteen (14) days the husband upload onto the USB stick a substantial number of photographs of the children at all ages, and of the parties’ marriage and other significant events, and provide that to the wife’s solicitors on her behalf.
7.
THAT otherwise the husband and wife be each responsible for any other debt, liability or outgoing incurred by them and owing in their name and indemnify and keep indemnified the other in respect thereof.
8.
THAT the legal costs and disbursements of and incidental to this hearing of both parties be reserved (and as was ordered in the children and parenting proceedings) pending application or further hearing.
9.
THAT otherwise all extant applications of the husband and wife be dismissed inclusive of all of the orders sought by the husband in paragraphs 1 to 16 (inclusive) of the husband’s submissions for final orders as identified in the Court Index Document No. 130 now filed with the Court.
IT IS CERTIFIED
10.
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.
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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