FAMILY COURT OF AUSTRALIA
| REGAN & REGAN | [2017] FamCA 406 |
| FAMILY LAW – PROPERTY - Value of property – valuation of a hurt on duty pension – characterisation as a “pension payable for life” – ramifications of splitting a hurt on duty pension – assessment of contributions |
| Family Law Act 1975 (Cth) ss 75(2)(a), (b), (f), 79(4)(a)-(g) and 90MT(2) Family Law (Superannuation) Regulations 2001 Family Law (Superannuation)(Methods and factors for valuing Particular Superannuation Interests) Approval 2003 |
| Aleksovski v Aleksovski (1996) FLC 92-705 Cerini & Cerini [1998] FamCA 143 at [46] Coghlan & Coghlan [2005] FamCA 429 [63]-[64] Jones v Dunkel (1959) 101 CLR 298 Kouper & Kouper (No 3) [2009] FamCA 1980 |
| APPLICANT: | Ms Regan |
| RESPONDENT: | Mr Regan |
| FILE NUMBER: | SYC | 5737 | of | 2014 |
| DATE DELIVERED: | 9 June 2017 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 14-15 July 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Livingstone |
| SOLICITOR FOR THE APPLICANT: | Gibson Howlin Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | MCW Lawyers |
Orders
That within six (6) weeks of the making of these Orders, the husband is to transfer to the wife all of his right, title and interest in the property situate and known as B Street, Suburb C (folio identifier …) (the Suburb C property) and simultaneously with the transfer the wife will pay to the husband $260,965.
That simultaneously with the transfer in Order 1, the wife do all acts and things and execute all necessary documents, instruments and writings to cause the mortgage to the Australian & New Zealand Banking Group (ANZ) to be discharged in full and the husband to sign any documents reasonably required by the wife in this regard and the wife to pay and be responsible for all costs associated with obtaining the discharge of the mortgage from ANZ in the parties joint names.
That if the wife defaults on her obligation pursuant to Order 2 by more than four (4) weeks, then the husband and the wife do all acts and things and sign and execute all deeds, documents, instruments and writings that are necessary to list the Suburb C property for sale in the following manner:
(a)The husband and the wife shall do all things and sign all documents necessary to list the Suburb C property for sale by public auction with such Real Estate Agent (agent) as the wife agrees to appoint with the costs of and incidental to such appointment to be borne by the husband and the wife as and when they fall due;
(i)The reserve price for the purposes of…
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- Regan and Regan [2017] FamCA 406
- Case
- [2017] FamCA 406
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of the property settlement, including the transfer of a specific property, the discharge of a mortgage, the sale of the property in certain circumstances, and the division of proceeds. The court also had to address the transfer of a shareholding in a company and the parties' respective entitlements and liabilities concerning other property and debts.
The court ordered the husband to transfer his interest in the Suburb C property to the wife, with the wife to pay a specified sum to the husband and to arrange for the discharge of the ANZ mortgage. Provisions were made for the sale of the property by public auction if the wife defaulted on her obligations regarding the mortgage discharge, with detailed instructions on the sale process, reserve price, and distribution of proceeds. The court also ordered the husband to transfer his share in J Pty Ltd to the wife. The orders stipulated that each party would be the sole owner of property in their possession, and each would indemnify the other against liabilities encumbering that property or in their respective sole names. Finally, the court provided for a Registrar to execute documents if a party refused to do so, to give effect to the orders.
Orders
Orders of the court
1.
That within six (6) weeks of the making of these Orders, the husband is to transfer to the wife all of his right, title and interest in the property situate and known as B Street, Suburb C (folio identifier …) (the Suburb C property) and simultaneously with the transfer the wife will pay to the husband $260,965.
2.
That simultaneously with the transfer in Order 1, the wife do all acts and things and execute all necessary documents, instruments and writings to cause the mortgage to the Australian & New Zealand Banking Group (ANZ) to be discharged in full and the husband to sign any documents reasonably required by the wife in this regard and the wife to pay and be responsible for all costs associated with obtaining the discharge of the mortgage from ANZ in the parties joint names.
3.
That if the wife defaults on her obligation pursuant to Order 2 by more than four (4) weeks, then the husband and the wife do all acts and things and sign and execute all deeds, documents, instruments and writings that are necessary to list the Suburb C property for sale in the following manner:
(a) The husband and the wife shall do all things and sign all documents necessary to list the Suburb C property for sale by public auction with such Real Estate Agent (agent) as the wife agrees to appoint with the costs of and incidental to such appointment to be borne by the husband and the wife as and when they fall due;
(i) The reserve price for the purposes of such auction shall be as the agent nominates;
(ii) In the event the bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidders or any other interested person and effect a sale of the Suburb C property at a price which is not more than 5 per cent below the reserve price or any other price as agreed to by the parties;
(iii) If the Suburb C property continues to remain unsold, the parties shall do all acts and things and sign all documents necessary to immediately re-list the Suburb C property for sale by public auction at a reserve price 5 per cent less than the previous reserve price and continue to list the Suburb C property for sale by public auction with progressive further reductions of 5 per cent in the reserve price until a sale is affected;
(iv) That the wife shall co-operate in every way with the agent including (without limiting the generality of the forgoing):
A. Making the keys available to the agent;
B. Authorising inspection of the Suburb C property at all reasonable times requested by the agent;
C. Doing or saying nothing to hinder or prevent a sale being effected;
D. Ensuring the Suburb C property including the grounds are in a neat and clean condition at the time of the inspection by the agent and prospective purchasers; and
E. Together with the husband, signing all documents requested by the agent in relation to the listing for sale of the Suburb C property, except a contract or agreement for sale which has not been authorised by both parties.
(b) That upon completion of the sale of the Suburb C property (if required pursuant to these Orders), the proceeds of sale shall be disbursed as follows:
(i) To pay all costs, commissions and expenses of the sale;
(ii) The sum required to discharge the ANZ mortgage encumbering the Suburb C property;
(iii) The balance remaining to be divided and paid between the parties so as to effect a 72.5 per cent to the wife and 27.5 per cent to the husband split of the non-superannuation interests, the manner of such division to be as agreed between the parties or otherwise as follows:
A - $1,272,600 (non-superannuation pool including relevant debt)
— B - $1,225,000 (agreed value of home)
+ C - Sale price
— D - Costs, commissions and expense of sale
— E - Sum required to discharge mortgage
= F - _ (new net non-superannuation pool)
__________ That is: A – B + C – D – E = F
Husband to receive:
27.5 per cent x F (new net non-superannuation pool)
— $34,000 (reckoned as held by husband including proceeds of the Minibus)
= Amount payable to the husband following sale
(iv) The balance of the proceeds of sale after payment to the husband of the above amount to be paid to the wife.
4.
That within fourteen (14) days of the date of these Orders, the husband is to sign all documents necessary to effect a transfer of the one ordinary share held by him in J Pty Ltd (ACN …) to the wife.
5.
Except as otherwise provided for in these Orders, the husband and wife are each entitled to be the sole and absolute owner both at law and in equity with respect to all items of property including bank accounts, cash money, shares, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in their possession or control of each of them respectively.
6.
The husband and the wife are each 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.
7.
The husband and the wife are liable for and indemnify the other against any liability in their respective sole names, including but not limited to credit card debt, taxation debt and personal loans.
8.
That the wife and husband shall each do all such things as are necessary and sign all such documents as are necessary to give effect to these Orders.
9.
That in the event that the husband or the wife refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, that a Registrar or Deputy Registrar of the Family Court of Australia, Sydney, be appointed pursuant to s 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the husband or wife and to do all acts and things necessary to give validity and operation to the said deed or instrument and such Registrar shall be satisfied upon affidavit evidence of the party alleging the refusal or neglect that a party is in beach of these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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