FAMILY COURT OF AUSTRALIA
| REYNOLDS & MOORE | [2014] FamCA 1174 |
| FAMILY LAW – PROPERTY – competing applications for property settlement – wife’s application for lump sum spousal maintenance – short marriage of less than two years – no children – where the husband made all financial contributions during the marriage – where the wife made minimal non-financial contributions – wife’s allegations of family violence not established – wife’s oral application for lump sum spousal maintenance dismissed – husband’s application for costs reserved at previous hearing and costs of trial dismissed. |
Evidence Act 1995 (Cth) s 140.
| Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 81, 90MT, 90MZA and 117. |
Antmann v Antmann (1980) FLC 90-908
| Bevan & Bevan (2013) FLC 93-545 Bolger & Headon (2014) FLC 93-575 Brandow & Brandow [2010] FMCAfam 1026 Briginshaw & Briginshaw (1938) 60 CLR 336 Coghlan & Coghlan (2005) FLC 93-220 Daines & Daines [2014] FamCAFC 61 G & G [2006] FamCA 877 Kennon & Kennon (1997) FLC 92-757 Marsh & Marsh (2014) FLC 93-576 Norbis & Norbis (1986) 161 CLR 513 Spiteri v Spiteri (2005) FLC 93-214 Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Reynolds |
| RESPONDENT: | Mr Moore |
| FILE NUMBER: | MLC | 5924 | of | 2012 |
| DATE DELIVERED: | 23 December 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 27 – 30 May, 2 – 6 June 2014 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Whitchurch |
| SOLICITOR FOR THE RESPONDENT: | Kenna Teasdale Lawyers |
Orders
Leave is granted to the wife to amend her application to seek an order for lump sum spousal maintenance of up to $30,000.
Except as otherwise dealt with in these orders, the wife’s Amended Initiating Application filed 4 September 2013 is dismissed.
The wife’s application for spousal maintenance is dismissed.
The watch formerly owned by the husband’s father is declared to be the property of the husband as against the wife.
Within 30 days of the date of these orders:
(a) the husband pay the wife the sum of $20,000 to be paid as follows:
(i)$5,300 to the firm of solicitors McDonald, Slater and Lay; and
(ii)the balance to the wife;
(b)the wife sign all documents and do all acts necessary to transfer her share and interest in the property at P Street, Suburb X, Victoria and being the property more particularly described in Certificate of Title volume … Folio … (“the X property”) to the husband at the husband’s expense;
(c)the wife sign all documents and do all acts necessary to resign as a director of H Pty Ltd and J Pty Ltd at the husband’s expense;
(d)the wife sign all documents and do all acts necessary to transfer the shares in H Pty Ltd and J Pty Ltd to the husband at his expense;
(e)the wife sign all documents necessary to be removed as a beneficiary of the Moore Reynolds Trust at the husband’s expense;
(f)the husband and wife do…
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- AGLC
- REYNOLDS & MOORE [2014] FamCA 1174
- Case
- [2014] FamCA 1174
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate property settlement between the parties, including the division of specific assets such as a property, company shares, and superannuation. Additionally, the court considered the wife's application for spousal maintenance and the ownership of a particular watch. The court also had to address the implications of the Family Law Act 1975 (Cth) and associated regulations concerning the splitting of superannuation interests.
Thornton J granted the wife leave to amend her application to seek lump sum spousal maintenance of up to $30,000. The court ordered the husband to pay the wife $20,000, with a portion directed to her solicitors. The wife was ordered to transfer her interest in a property, resign as a director of two companies, and transfer her shares in those companies to the husband, all at the husband's expense. The parties were to close joint bank accounts, with the husband retaining the proceeds. The wife was to discharge her liability for a mortgage and line of credit over the property, with the husband indemnifying her. The wife was also ordered to discharge a caveat against the property at her expense. The parties were to surrender any claim to each other's superannuation entitlements. The court declared a watch to be the husband's property. Crucially, the court ordered a superannuation splitting order, allocating $45,000 of the husband's superannuation interest to the wife, with specific provisions for its payment and transfer. The wife's application for spousal maintenance was otherwise dismissed, as were the husband's applications for costs.
Orders
Orders of the court
1.
Leave is granted to the wife to amend her application to seek an order for lump sum spousal maintenance of up to $30,000.
2.
Except as otherwise dealt with in these orders, the wife’s Amended Initiating Application filed 4 September 2013 is dismissed.
3.
The wife’s application for spousal maintenance is dismissed.
4.
The watch formerly owned by the husband’s father is declared to be the property of the husband as against the wife.
5.
Within 30 days of the date of these orders:
(a) the husband pay the wife the sum of $20,000 to be paid as follows:
(i) $5,300 to the firm of solicitors McDonald, Slater and Lay; and
(ii) the balance to the wife;
(b) the wife sign all documents and do all acts necessary to transfer her share and interest in the property at P Street, Suburb X, Victoria and being the property more particularly described in Certificate of Title volume … Folio … (“the X property”) to the husband at the husband’s expense;
(c) the wife sign all documents and do all acts necessary to resign as a director of H Pty Ltd and J Pty Ltd at the husband’s expense;
(d) the wife sign all documents and do all acts necessary to transfer the shares in H Pty Ltd and J Pty Ltd to the husband at his expense;
(e) the wife sign all documents necessary to be removed as a beneficiary of the Moore Reynolds Trust at the husband’s expense;
(f) the husband and wife do all acts and things necessary to close any joint bank accounts held by them including the bank accounts for H Pty Ltd and J Pty Ltd, with the husband to retain the proceeds of such accounts;
(g) the husband and wife sign all documents and do all things necessary to discharge the wife’s liability for the existing Bendigo Bank mortgage together with the line of credit secured over the X property, at the expense of the husband. The husband will indemnify the wife with respect to the mortgage payments and the line of credit secured over the X property; and
(h) the wife do all acts and things and sign all documents as required to discharge the Caveat No: … secured against the title to the X property by Ian Charles Slater, at the wife’s expense.
6.
The parties each surrender any claim or entitlement they may otherwise have but for these orders to the other’s superannuation entitlements.
7.
Having been accorded procedural fairness in relation to the making of these orders, orders (8) to (12) are binding on Perpetual Superannuation Limited (“the Trustee”) as Trustee of the Perpetual Select Super Plan (“the Fund”).
8.
The base amount to be allocated to the wife from the husband’s interest in the Fund is $45,000.
9.
In accordance with s 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), whenever a splittable payment becomes payable in respect of the superannuation interest of the husband in the Fund, the wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of $45,000 and there be a corresponding reduction in the entitlement of the husband.
10.
Orders (8) and (9) of these orders have effect from the operative time, which is seven days from the date of service of sealed court orders upon the Trustee.
11.
The parties must do all acts and things and sign all documents as may be required to make a request pursuant to regulation 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the transfer or rollover of the transferrable benefits created by orders (8) and (9) out of the Fund to a compliant superannuation fund of the wife’s choice in accordance with regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).
12.
Until the happening of any of:
(a) the establishment of a separate account in the name of the wife in the Fund; or
(b) the transfer or rolling over into another superannuation fund of the payment split created by orders (8) and (9) of these orders; or
(c) the wife satisfying a condition of release and being paid the payment split which is created by orders (8) and (9); or
(d) the wife executing a waiver of her rights within the meaning of s 90MZA of the Act in relation to the payment split created by orders (8) and (9) of these orders;
the husband be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in the Fund a “non-splittable payment” within the meaning of regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001 (Cth) AND IT IS REQUESTED THAT the Trustee of the Fund give effect to this order.
13.
Each party and the trustee of the Fund have liberty to apply in relation to the implementation of orders (8) to (12) inclusive.
14.
Each party keep the other indemnified with respect to any liability in their sole name, including any liability encumbering any item of real or personal property to which that party is entitled pursuant to these orders.
15.
The husband retain his motor vehicle to the exclusion of the wife.
16.
Any joint tenancy of the parties in any real or personal property is expressly severed.
17.
The husband and wife will otherwise retain to the exclusion of the other all furniture, chattels and other belongings in their possession, save that the wife return to the husband the plastic box of personal documents including photographs that she removed from the former matrimonial home at the time of separation and all the husband’s documents including his degrees and M certificate.
18.
The wife is to make every effort to recover the husband’s watch and return it to him if and when found by her.
19.
The husband’s application for costs of $5,160 reserved from the hearing on 16 December 2013 is dismissed.
20.
The husband’s application for costs in the trial is dismissed.
21.
All extant applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A. Until such time as the wife’s interest in the X property is transferred to the husband, the interim order of 16 December 2013 remains in full force and effect.
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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