FEDERAL CIRCUIT COURT OF AUSTRALIA
| SACHAR & SACHAR | [2017] FCCA 3116 |
| Catchwords: FAMILY LAW – Property settlement proceeding – short marriage – very few assets in Australia – applicant incurs significant legal costs – whether to be allowed in favour of the applicant or to be added back as notional asset in favour of respondent – applicant’s superannuation accumulates significantly post separation – whether to be excluded in part from asset pool – parties to assume personal responsibilities for own liabilities – orders made for lump sum payment so as to adjust property interests in small asset pool. |
| Legislation: Evidence Act 1995 (Cth), ss.140, 144 Family Law Act 1975 (Cth), ss.75, 79, 90MZD, 117 |
| Cases cited: Beklar & Beklar [2013] FamCA 327 Browne v Green (1999) FLC 92-873 C & C [1998] FamCA 143 NHC & RCH [2004] FLC 93-204 Companhia de Mocambique v British South Africa Co [1892] 2 QB 358 British South Africa Co v Companhia de Mocambique [1893] AC 602 Damiani & Damiani [2012] FamCA 535 Moti v The Queen (2011) 245 CLR 456 Norbis v Norbis (1986) 161 CLR 513 Omacini & Omacini(2005) FLC 93-218 Parrott v Public Trustee of NSW(1993) 17 Fam LR 785 Rankin & Rankin [2017] FamCAFC 29 Stanford v Stanford (2012) 247 CLR 108 Talacko v Bennett [2017] HCA 15 Tobey & Rezek [2017] FamCAFC 84 |
| Applicant: | MR SACHAR |
| Respondent: | MS SACHAR |
| File Number: | MLC 2118 of 2015 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 26 May 2017 |
| Date of Last Submission: | 26 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 14 December 2017 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
THE COURT ORDERS THAT
The property settlement proceeding is adjourned for further hearing at 10.00am on 14 February 2018 for the making of orders in accordance with these reasons for judgement.
Direct that a Registrar of the Court cause to be served on the trustee of the (omitted) Super Fund, a copy of the proposed order attached hereto and marked Annexure A in order that procedural fairness may be accorded to that trustee concerning orders respecting the interests of the applicant (member number (omitted)) in that Fund.
Direct that by 4.00pm on 8 February 2018, the parties file and serve an affidavit providing evidence of any response by the trustee…
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- Sachar and Sachar [2017] FCCA 3116
- Case
- [2017] FCCA 3116
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the appropriate orders for the division of property, including specific bank accounts and the applicant's superannuation interest in the (omitted) Super Fund. Crucially, the court needed to ensure procedural fairness was accorded to the trustee of the superannuation fund and to make orders that would be binding on the trustee, in accordance with the Family Law Act 1975 and associated regulations. The court also had to consider interim measures to preserve the value of certain assets pending the finalisation of the property settlement.
The court applied principles of the Family Law Act 1975, particularly sections relating to property settlement and superannuation splitting, including sections 90MZD, 90MT(1), and 90MD, and the Family Law (Superannuation) Regulations 2001. The reasoning involved establishing a base amount for the respondent's superannuation entitlement and directing the trustee to make payments accordingly. The court also imposed restraints on the applicant to prevent him from drawing down from specified bank accounts or taking actions that would render his superannuation payments non-splittable, thereby ensuring the integrity of the proposed superannuation split.
The court made orders that, subject to procedural fairness being afforded to the superannuation trustee, the applicant would retain certain property including his savings, boat, chattels, and superannuation, while the respondent would retain her savings, motor vehicle, chattels, and superannuation. The applicant was restrained from reducing the balance of specific bank accounts below certain thresholds and was ordered to transfer specified sums from these accounts to the respondent. Furthermore, the court ordered that the superannuation trustee pay a base amount of $16,000 to the respondent from the applicant's superannuation interest, and that the applicant be restrained from taking any action that would render his superannuation payments non-splittable. These orders were declared to finally determine the financial relations between the parties as far as practicable.
Orders
Orders of the court
1.
The property settlement proceeding is adjourned for further hearing at 10.00am on 14 February 2018 for the making of orders in accordance with these reasons for judgement.
2.
Direct that a Registrar of the Court cause to be served on the trustee of the (omitted) Super Fund, a copy of the proposed order attached hereto and marked Annexure A in order that procedural fairness may be accorded to that trustee concerning orders respecting the interests of the applicant (member number (omitted)) in that Fund.
3.
Direct that by 4.00pm on 8 February 2018, the parties file and serve an affidavit providing evidence of any response by the trustee whether it consents (or does not object) to orders being made in terms of the proposed order attached hereto and marked Annexure A.
4.
Pending the making of final orders in accordance with paragraph (1) of this Order, or further order, the applicant be and is hereby restrained whether by himself his servant or agents or however otherwise from drawing down any amount from the following accounts where to do so would reduce the balance standing to the credit of any such account:
(a) (omitted) Bank account number (omitted) – to a balance below the sum of $1,000;
(b) (omitted) Bank account number (omitted) – to a balance below the sum of $2,160; and
(c) (omitted) Bank account number (omitted) – to a balance below the sum of $1,000.
5.
Pending the making of final orders in accordance with paragraph (1) of this Order, or further order, the applicant be and is hereby restrained whether by himself, his servants, his agents or howsoever otherwise from executing, and/or giving to the trustee of the (omitted) Super Fund a binding death benefit nomination in favour of any person, or doing any other act or thing, which would render any part of, or payment from, his superannuation interest in that Fund a non-splittable payment within the meaning of regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001.
Annexure A
Proposed order to be made in property settlement proceeding, subject to compliance with s 90MZD of the Family Law Act 1975 (Cth).
THE COURT ORDERS THAT:
1.
The applicant shall retain the following property:
(a) subject to paragraph (3) of this Order, his savings;
(b) his inflatable boat and ancillary equipment;
(c) his chattels and all personal property in his possession; and
(d) subject to paragraph (5) of this Order, his superannuation.
2.
The respondent shall retain the following property:
(a) her savings;
(b) her Ford (omitted) motor vehicle;
(c) her chattels and all person property in her possession;
(d) her superannuation.
3.
Pending compliance with paragraph (5) of this order, or further order, the applicant be and is hereby restrained whether by himself his servant or agents or however otherwise from drawing down any amount from the following accounts where to do so would reduce the balance standing to the credit of any such account:
(a) (omitted) Bank account number (omitted) – to a balance below the sum of $1,000;
(b) (omitted) Bank account number (omitted) – to a balance below the sum of $2,160; and
(c) (omitted) Bank account number (omitted) – to a balance below the sum of $1,000.
4.
Paragraph (3) of this Order shall not operate so as to prevent the applicant from effecting the payments to be made pursuant to paragraph (5) of this Order.
5.
By 4.00pm on Wednesday, 22 February 2018, the applicant transfer to the respondent the sum of:
(a) $1,000 from the monies standing to the credit of his account number (omitted) with the (omitted) Bank;
(b) $2,160 from the monies standing to the credit of his account number (omitted) with the (omitted) Bank;
(c) $1,000 from the monies standing to the credit of his account number (omitted) with the (omitted) Bank.
6.
Having been afforded procedural fairness respecting the making of this Order, paragraphs (7) to (11) of this Order are binding on the trustee (“Trustee”) of the (omitted) Super Fund (“Fund”).
7.
Pursuant to sub-s 90MT(1) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the applicant (member number (omitted)) in the Fund:
(a) the Trustee shall pay the respondent, her administrators or executors, beneficiaries, heirs or assigns, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b) the Trustee shall make a corresponding reduction in the entitlement that the applicant would have had in the Fund but for the operation of this Order.
8.
The base amount allocated to the respondent out of the interest held by the applicant in the Fund is the sum of $16,000.00.
9.
Paragraph (10) of this Order has effect from the operative time within the meaning of s 90MD of the Family Law Act 1975 and that operative time is the fourth business day after which the respondent has served on the trustee:
(a) a sealed copy of this Order; and
(b) a notice under regulation 72 of the Family Law (Superannuation) Regulations 2001.
10.
The Trustee shall do all such acts and things and sign all such documents as may be necessary, such that the Trustee in accordance with the obligations set out in the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 can calculate the entitlements of, and make payments to, the respondent in accordance with paragraphs (7)-(8) of this Order.
11.
Pending completion of the superannuation split in the favour of the respondent in accordance with this Order, the applicant be and is hereby restrained whether by himself, his servants, his agents or howsoever otherwise from executing, and/or giving to the Trustee a binding death benefit nomination in favour of any person, or doing any other act or thing, which would render any part of, or payment from, his superannuation interest in the Fund not a splittable payment within the meaning of regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001.
12.
Save for the purposes of enforcing any orders made above:
(a) each party be solely entitled, to the exclusion of the other, to all and any other property in the possession of such party as at the date of this Order;
(b) subject to paragraph (7) of this Order, each party foregoes any other or further claim that they may have had as to any superannuation, compensation, insurance, employment or any other benefits belonging to, earned or receivable by the other;
(c) all insurance policies remain the sole property of the named owner;
(d) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party may be entitled pursuant to this Order, and in respect of any other liability that may be incurred in their name;
(e) any joint tenancy of the parties in any real or personal property is expressly severed.
AND THE COURT DECLARES THAT pursuant to s 81 of the Family Law Act 1975, these Orders shall as far as is practicable finally determine the financial relations between the parties.
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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