FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Radcliffe & Marsters (No 2) [2024] FedCFamC2F 1787
File number: LNC 590 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 13 December 2024 Catchwords: FAMILY LAW – Property – composition of asset pool – where contributions are assessed as equal – where there should be an adjustment to the wife of 5% having regard to the factors under section 75(2) of the Family Law 1975 (Cth) – orders made accordingly and are just and equitable. Legislation: Family Law Act 1975 (Cth) ss 75(2), 75(2)(m), 75(2)(o), 79, 79(1), 79(2), 79(4), 81, 102NA. Cases cited: Bevan v Bevan [2013] FamCAFC 116
Deng & Galinski [2021] FCCA 843
Dickons v Dickons [2012] FamCAFC 154
Eufrosin v Eufrosin [2014] FamCAFC 191
Hua & Liu [2019] FamCA 732
Jamine & Jamine (No 2) [2012] FamCAFC 104
JEL & DDF [2000] FamCA 1353
Stanford v Stanford [2012] HCA 52
Ziska & Ziska [2013] FamCA 789
Division: Division 2 Family Law Number of paragraphs: 120 Date of last submission: 23 October 2024 Date of hearing: 2 October 2024 Place: Melbourne Solicitor for the Applicant: Mr Willaims of Glynn Williams Legal Solicitor for the Respondent: Self-represented litigant ORDERS
LNC 590 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RADCLIFFE
Applicant
AND: MR MARSTERS
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
Property each party is to retain
1.The husband shall retain the following assets and liabilities to the exclusion of the wife:
(a)the chattels at the former matrimonial home at D Street, Town E, Tasmania (‘Town E Property’) as set out in and in accordance with the valuation of Z Valuers dated 19 August 2024; and
(b)his interest in Superannuation Fund 3 (member number …27).
2.The wife shall retain the following assets and liabilities to the exclusion of the husband:
(a)her interest in Superannuation Fund 4 (account number …21);
(b)her share and interest in any bank accounts held in her name;
(c)her shares in R Bank, MM Bank, and S Company;
(d)the Whole of Life insurance policy;
(e)her long service leave entitlements; and
(f)the JJ Loan.
Superannuation splitting order
3.A base amount of $93,545.55 is allocated as required by section 90XT(4) of the Family Law Act 1975 (Cth) (‘the Act’) to the husband out of the wife’s interest in Superannuation Fund 1 (‘the Fund’) of which F Pty Ltd (‘Trustee’) is the Trustee, where the member number is …75, in accordance with the following terms:
(a)pursuant to section 90XT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the wife’s interest in the Fund with member number …75 the husband is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (‘Regulations’) and there is a corresponding reduction to the entitlement of that person to whom the splittable payment would have been…
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- AGLC
- Radcliffe & Marsters (No 2) [2024] FedCFamC2F 1787
- Case
- [2024] FedCFamC2F 1787
- Decision Date
CaseChat Overview and Summary
The court assessed the contributions of each party and determined that the asset pool should be divided equally. However, under section 75(2) of the Family Law Act 1975 (Cth), the court considered various factors and decided to adjust the division by 5% in favor of Ms Radcliffe. This adjustment was made to reflect the practical implications of the division of assets, ensuring that the outcome was just and equitable.
Judge Blake outlined the detailed orders for the distribution of assets, including the retention of specific properties and superannuation funds by each party. A significant aspect of the orders was the allocation of a base amount from Ms Radcliffe’s superannuation to Mr Marsters, with specific terms governing the calculation and payment of this amount. Furthermore, the court directed the sale of the Town E Property, stipulating the procedures for listing, marketing, and the division of the sale proceeds. The orders also included provisions for the handling of any unsold property, ensuring that the proceeds were distributed according to the agreed-upon ratio.
The final orders, as made by Judge Blake, clearly defined the property each party was to retain, the terms for the superannuation splitting, and the detailed steps for the sale of the Town E Property. The court also addressed the method for calculating the distribution of any remaining sale proceeds, ensuring a precise and fair division of the assets. The orders provided mechanisms for the implementation and enforcement of these arrangements, including the appointment of the Registrar to act on behalf of any party failing to comply with the court’s directives.
Orders
Orders of the court
LNC 590 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS RADCLIFFE
Applicant
AND:
MR MARSTERS
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
Property each party is to retain
1. The husband shall retain the following assets and liabilities to the exclusion of the wife:
(a) the chattels at the former matrimonial home at D Street, Town E, Tasmania (‘Town E Property’) as set out in and in accordance with the valuation of Z Valuers dated 19 August 2024; and
(b) his interest in Superannuation Fund 3 (member number …27).
2. The wife shall retain the following assets and liabilities to the exclusion of the husband:
(a) her interest in Superannuation Fund 4 (account number …21);
(b) her share and interest in any bank accounts held in her name;
(c) her shares in R Bank, MM Bank, and S Company;
(d) the Whole of Life insurance policy;
(e) her long service leave entitlements; and
(f) the JJ Loan.
Superannuation splitting order
3. A base amount of $93,545.55 is allocated as required by section 90XT(4) of the Family Law Act 1975 (Cth) (‘the Act’) to the husband out of the wife’s interest in Superannuation Fund 1 (‘the Fund’) of which F Pty Ltd (‘Trustee’) is the Trustee, where the member number is …75, in accordance with the following terms:
(a) pursuant to section 90XT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the wife’s interest in the Fund with member number …75 the husband is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (‘Regulations’) and there is a corresponding reduction to the entitlement of that person to whom the splittable payment would have been made but for these Orders;
(b) the operative time is the beginning of the fourth business day after the day on which an original certificated copy of these Orders are served on the Trustee of the Fund (‘the operative time’);
(c) these Orders have effect from the operative time;
(d) the Trustee shall do all such acts and things and sign all such documents as may be necessary to calculate, in accordance with the requirements of the Act and the Regulations, the entitlement for the husband created by Order 3(a) of these Orders and pay the entitlement whenever the Trustee makes a splittable payment out of wife’s interest in the Fund;
(e) after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (‘the SIS Regulations’), the wife shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the husband’s request in accordance with the SIS Regulations, for the retention of the husband’s interest in the husband’s name in the Fund;
(f) the Court notes the value of the husband’s interest is calculated in accordance with the SIS Regulations, and any payments from the wife’s Fund made after the Trustee has created a new interest in the husband’s name in the Fund are not splittable payments in accordance with the requirements of the Regulations;
(g) until the Trustee of the Fund has effected the splittable payment in favour of the husband, the wife or any person acting on his behalf are restrained from disposing of all or any of the payment to the husband and/or his personal representatives received by or held in trust for the benefits or him;
(h) a sealed copy of these Orders are to be served by the wife’s solicitors upon the Trustee within fourteen (14) days or the making of these Orders; and
(i) until such service occurs, the wife is restrained from withdrawing, encumbering or seeking to have invested in her, her superannuation entitlements with the Fund.
Sale of the Town E Property
4. The wife and husband shall do all acts and things and sign all necessary documents to effect the sale of the Town E Property and for that purpose, the following shall apply:
(a) the Town E Property shall be listed for sale by private treaty with such real estate agent as agreed between the wife and the husband and failing agreement within 14 days from the date of these Orders, the real estate agent will be as appointed by the wife (‘the Agent’);
(b) the list price for the Town E Property shall be $400,000, or such other figure as agreed between the parties (‘list price’);
(c) the sale price of the Town E Property shall be such amount as is agreed between the wife and the husband, and failing agreement, any offer to buy the Town E Property that is at least 90 per cent of the list price shall be accepted by the wife and the husband as the sale price;
(d) the wife and the husband are to co-operate in every way with the Agent in relation to the marketing of the Town E Property for sale including making the keys readily available, allowing inspection of the Town E Property at all times reasonably requested by the Agent and ensuring that the Town E Property is clean, neat and in good order at the time of inspection by any prospective buyer; and
(e) the contract of sale shall provide for completion within 90 days after the date of the contract, or such other period as agreed between the wife and husband.
5. In the event the Town E Property is not sold pursuant to Order 4, within three (3) months of the date of these Orders, the wife and husband shall do all acts and sign all documents as are necessary to sell the property by auction, and the following shall apply:
(a) the Town E Property shall be listed with the Agent appointed under Order 4(a) (‘the Auctioneer’) for sale by auction;
(b) the wife and the husband shall execute all documents requested by the Auctioneer for the sale of the Town E Property by auction;
(c) the reserve price of the Town E Property shall be such amount as is agreed between the wife and the husband, and failing agreement at a price equivalent to the mean of two valuations by registered valuers, being members of the Australian Institute of Valuers, one obtained by and at the expense of the wife and one being obtained by and at the expense of the husband, with such valuations to be made no more than two weeks apart from each other;
(d) the wife and the husband shall each pay to the Auctioneer one half of any sums requested for advertising or auction expenses, and if one of the wife and the husband pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the wife and the husband;
(e) the wife and the husband 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;
(f) the wife and the husband agree to co-operate in every way with the Auctioneer in relation to the sale by auction, including allowing inspection of the Town E Property at all times reasonably requested by the Auctioneer and ensuring that the Town E Property is clean, neat and in good order at the time of any inspection and on the day of auction;
(g) the sale price of the Town E 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 Town E Property shall be such amount as is agreed between the wife and the husband, or failing agreement, any offer received after the auction to buy the property at a price that is at least 90 per cent of the reserve price shall be accepted by the wife and the husband;
(h) the wife and the husband attend at the auction and negotiate with the highest bidder or any other interested party in the event that the reserve price is not reached, for the purpose of reaching agreement under Order 5(g); and
(i) the contract of sale shall provide for completion within 90 days after the date of the contract, or such other period as is agreed between the wife and husband.
6. Upon agreement being reached for sale of the Town E Property, the wife and the husband shall execute the contract of sale and all other documents necessary to complete the sale of the Town E Property, including all transfer documentation forthwith upon its submission to them by the Agent or their solicitor;
7. The parties must do all acts and things necessary to ensure that, upon the sale of the Town E Property, the proceeds of sale be paid in the following manner and priority:
(a) payment of the amount required to discharge the mortgage over the Town E Property;
(b) payment of any outstanding council and/or utility rates;
(c) payment of the Agent/Auctioneer’s commission and auction expenses (if any) due on the sale;
(d) payment of legal costs on sale; and
(e) payment of the balance be held in trust by the wife’s solicitors to be distributed to the parties in accordance with the method set out in Order 8 of these Orders.
8. Upon the sale of the Town E Property, if there is a balance to be distributed pursuant to Order 7(e) of these Orders, then there be a division of all property of the parties (inclusive of superannuation) in the proportion of 55% to the wife and 45% to the husband, calculated as follows:
(a) WHERE:
(i) the net assets (inclusive of superannuation) retained by the wife equals $196,719.80;
(ii) the net assets (inclusive of superannuation) retained by the husband equals $203,275.55;
(iii) the net proceeds of the sale of the Town E Property per Order 7(e) of these Orders.
(b) WHERE (i)+(ii)+(iii) = Z
(i) the Wife shall receive a sum equal to (Z x 55%) plus $2,100 (for the valuation fees in accordance with Order 4 of the Orders of 8 August 2024 (‘the valuation fees’)) – (i); and
(ii) the Husband shall receive a sum equal to (Z x 45%) minus $2,100 (for the valuation fees) – (ii).
9. The parties have liberty to apply in relation to the implementation of these Orders, including in relation to the sale of the Town E Property, and calculation of the monies to be paid to each party from the sale proceeds of the Town E Property.
Other property
10. Unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Orders:
(a) the wife retain Motor Vehicle 2 and her jewellery;
(b) the husband retain Motor Vehicle 1and Motor Vehicle 4;
(c) the husband remain solely liable for his V Finance Loan;
(d) each party be solely entitled to the exclusion of the other to all property owned by or in the possession of such party as at the date of these Orders, including but not limited to, their household contents or chattels as identified in item [43] of each parties Financial Statement;
(e) each party forego any further claims they may have to any superannuation benefits belonging to or earned by the other;
(f) insurance policies remain the sole property of the owner named therein;
(g) any monies or liabilities held in any bank or credit accounts remain the sole property of the owner whose name the accounts are held;
(h) 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 these Orders;
(i) each party remain responsible for any debts in that party’s name; and
(j) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Finalisation
11. If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so, the Registrar of the Melbourne Registry of the Federal Circuit and Family Court of Australia is hereby appointed under section 106A of the Act to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal. The requesting party be at liberty to apply for costs when submitting such an affidavit to the Registrar
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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