FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sardo & Sardo [2023] FedCFamC2F 1015
File number(s): MLC 7555 of 2022 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 14 August 2023 Catchwords: FAMILY LAW – EVIDENCE – application for leave to adduce evidence from an adversarial expert as to value of former family home – application filed shortly before final hearing – application dismissed
FAMILY LAW – PROPERTY – assessment of contributions over relationship of 23 years – initial contributions – gifts from family – significant inheritance at the end of the parties’ relationship – assessment of matters relevant pursuant to section 75(2) – parties’ children (aged 14 and 19) live with the father
Legislation: Evidence Act 1995 (Cth) s. 140
Family Law Act 1975 (Cth) ss. 75, 79
Family Law Rules 2004 (Cth) r. 15.64
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r.7.02, 7.08, 7.11, 7.25, 7.26, 7.31
Cases cited: AJO & GRO (2005) FLC 93-218; [2005] FamCA 195
Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Gosper & Gosper (1987) FLC 91–818; [1987] FamCA 43
In the marriage of C & C (2005) FLC 93–220; [2005] FamCA 429
Moretto & Cosola [2022] FedCFamC1F 433
Neales & Neales (2022) FLC 94–079; [2022] FedCFamC1A 41
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Palumbo & Mandel (2019) FLC 93–929; [2019] FamCAFC 228
Perrin & Perrin (No 2) [2018] FamCAFC 122
Salmon and Ors & Salmon [2020] FamCAFC 134
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14
Division: Division 2 Family Law Number of orders: 198 Date of last submission/s: 9 May 2023 Date of hearing: 8 & 9 May 2023 Place: Melbourne Counsel for the Applicant Ms Matson Solicitor for the Applicant Hargreaves Family Lawyers Counsel for the Respondent Mr Dunlop Solicitor for the Respondent Fair Family Law ORDERS
MLC 7555 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SARDO
Applicant
AND: MR SARDO
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
14 AUGUST 2023
THE COURT ORDERS THAT:
Suburb C property
The payment
1.Subject to order 3, the husband pay to the wife the sum of $336,400 (“the payment”) within 60 days of the date of these orders (“the date”).
2.Contemporaneously with the payment
(a)The wife do all such acts and things and sign all documents as may be required to transfer to the husband at the expense of the husband (“the transfer”) all of her right title and interest in the real property situate at and known as B Street, Suburb C, in the state of Victoria, being the whole of the land better particularised in certificate of title volume … folio … (“the Suburb C property”); and
(b)The husband do all such acts and things and sign all documents as may be required to pay…
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- Sardo & Sardo [2023] FedCFamC2F 1015
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- [2023] FedCFamC2F 1015
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CaseChat Overview and Summary
The court dismissed the application to adduce expert evidence, finding that it was not in the interests of justice to allow such late evidence, particularly given the comprehensive submissions and evidence already presented by both parties. The court noted that the application was made without a satisfactory explanation for the delay, and the evidence sought would likely not have changed the outcome of the property division. The court proceeded to assess the contributions made by each party over their 23-year relationship, including initial contributions, gifts from family members, and a significant inheritance received by Ms Sardo towards the end of the relationship. The court applied section 75(2) of the Family Law Act 1975 (Cth) to determine the matters relevant to the property settlement, and considered the welfare of the parties' children, who were aged 14 and 19 and living with their father.
The court ordered that Mr Sardo pay Ms Sardo $336,400 within 60 days of the order date, subject to his election to sell the Suburb C property. If Mr Sardo elected to sell the property, he could bid at the auction, but if he was unsuccessful or chose not to bid, the property would be sold under specified conditions, with the proceeds divided between the parties. The court also detailed the division of other assets, including superannuation entitlements, personal effects, and liabilities. The orders intended to finally determine the financial relationships between the parties and avoid further proceedings between them.
Orders
Orders of the court
MLC 7555 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS SARDO
Applicant
AND:
MR SARDO
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
14 AUGUST 2023
THE COURT ORDERS THAT:
Suburb C property
The payment
1. Subject to order 3, the husband pay to the wife the sum of $336,400 (“the payment”) within 60 days of the date of these orders (“the date”).
2. Contemporaneously with the payment
(a) The wife do all such acts and things and sign all documents as may be required to transfer to the husband at the expense of the husband (“the transfer”) all of her right title and interest in the real property situate at and known as B Street, Suburb C, in the state of Victoria, being the whole of the land better particularised in certificate of title volume … folio … (“the Suburb C property”); and
(b) The husband do all such acts and things and sign all documents as may be required to pay out the joint home loan owing to Westpac Banking Corporation and discharge the mortgage (dealing …) registered against the title of the Suburb C property (“the Suburb C mortgage”).
Election to sell
3. Within 14 days of the date of these orders, the husband may elect to sell the Suburb C property (“the election”), the election to be conveyed in writing via the parties’ lawyers, in which case orders 1 and 2 be discharged.
The sale
4. Upon the election to sell the Suburb C property or in the event the whole of the payment is not made by the date, each of the husband and the wife do all such acts and things and sign all documents as may be required to sell the Suburb C property (“the sale”) upon such terms and conditions as agreed between the parties, and failing agreement:
(a) Within 14 days, the wife nominate three potential selling agents and three potential conveyancers, and the husband select the agent (“the selling agent”) and the conveyancer (“the conveyancer”) from the list provided within seven days of the wife’s nominations;
(b) If the wife fails to provide nominations in accordance with order 4(a), the husband select the selling agent and the conveyancer;
(c) If the husband fails to comply with order 4(a), the wife select the selling agent and the conveyancer from the list she has provided;
(d) The sale be by way of public auction and if passed in at auction, as otherwise recommended by the selling agent;
(e) The reserve price be as recommended by the selling agent;
(f) The husband or his nominee be at liberty to bid to purchase the Suburb C property at auction;
(g) The husband comply with all reasonable recommendations of the selling agent as to the presentation of the Suburb C property, including keeping the property clean and neat and maintaining it in good order and repair;
(h) The husband make the Suburb C property available for inspection at times reasonably requested by the selling agent; and
(i) The parties otherwise have liberty to apply in relation to the terms and conditions of the sale.
5. Upon settlement of the sale of the Suburb C property to a purchaser other than the husband or his nominee, the proceeds of sale be applied:
(a) First, to pay all costs associated with the sale including the conveyancer’s fees and disbursements and the selling agent’s costs and commission (“the sale costs”) but not the parties’ independent legal costs;
(b) Secondly, to discharge the Suburb C mortgage; and
(c) Third, to pay an amount to the wife being the dollar equivalent of “X” in the following equation:
X = [67.5% of (A + W + H)] – W
Where:
“A” is the net proceeds remaining from the sale after the payments made pursuant to each of orders 5(a) and 5(b)
“W” is the value of property retained by the wife pursuant to these orders fixed in the sum of $1,633,103
“H” is the value of property retained by the husband pursuant to these orders fixed in the sum of $29,520; and
(d) Finally, the balance then remaining to the husband.
Husband successfully bidding at auction
6. In the event:
(a) The husband makes the election to sell the Suburb C property; and
(b) The husband is the highest bidder at the conclusion of the auction; and
(c) The Suburb C property has reached the reserve price recommended by the selling agent,
the parties do all such acts and things and sign all documents as may be required to remove the Suburb C property from the market for sale and within 30 days of the date of the auction (“the second date”) the husband pay to the wife the dollar equivalent of “Y” in the following equation (“the adjusting payment”) being:
Y = [67.5% of (B - M + W + H)] – W
Where:
“B” is the husband’s successful bid at auction
“M” is the balance of the home loan(s) secured by the Suburb C mortgage at that date
“W” is the value of property retained by the wife pursuant to these orders fixed in the sum of $1,633,103
“H” is the value of property retained by the husband pursuant to these orders fixed in the sum of $29,520
and the husband be responsible for and indemnify the wife in respect of the sale costs as defined in order 5(a) as may be incurred by the parties, including in respect of the auction.
7. Contemporaneously with the adjusting payment:
(a) The wife do all such acts and things and sign all documents as may be required to transfer to the husband at the expense of the husband (“the transfer”) all of her right title and interest in the Suburb C property; and
(b) The husband do all such acts and things and sign all documents as may be required to refinance into his sole name or pay out the joint home loan owing to Westpac Banking Corporation and discharge the Suburb C mortgage.
8. In the event the husband fails to make the whole of the adjusting payment or discharge the Suburb C mortgage by the second date, each of the husband and the wife do all such acts and things and sign all documents as may be required to sell the Suburb C property in accordance with order 4, save that the husband is prohibited from bidding on the Suburb C property at auction, and the sale proceeds be divided between the parties in accordance with order 5.
Pending the transfer or sale
9. Pending the transfer or settlement of the sale of the Suburb C property:
(a) The husband have sole use and occupation of the Suburb C property;
(b) The husband and the wife each be restrained by injunction from selling, transferring, further encumbering (including by drawing against the loan(s) secured by the Suburb C mortgage) or otherwise dealing in any way with their interest in the Suburb C property without the consent in writing of the other;
(c) The parties hold their respective interests in the Suburb C property upon trust pursuant to these orders;
(d) The husband pay as and when they fall due and indemnify the wife in respect of:
(i) All home loan repayments (principal and interest) in respect of the loan(s) secured by the Suburb C mortgage;
(ii) Property and water rates;
(iii) Home insurance; and
(iv) All taxes and other outgoings with respect to the Suburb C property including but not limited to telephone, internet, gas, water and electricity.
Chattels
10. Within 30 days from the date of these orders, the husband make available for collection by an agent nominated by the wife, the following items from the Suburb C property:
(a) Table from upstairs on which a statute from the wife’s great grandmother previously sat; and
(b) Ornament that previously sat on the occasional table.
11. Contemporaneously with her agent’s attendance at the Suburb C property pursuant to order 10, and otherwise within 30 days from the date of these orders, the wife arrange for an agent nominated by her to deliver to the husband, any keys or remote controls in her possession or control for the Suburb C property, including for the garage door (if any).
Motor Vehicle 1
12. Within fourteen days of these orders, each of the husband and the wife do all such acts and things and sign all documents as may be required to transfer the Motor Vehicle 1 (registration …) to the wife, at the expense of the wife.
Assets to be retained by the wife
13. The Wife otherwise retain to the exclusion of the husband, the following assets:
(a) Her interest in the Ms Sardo Testamentary Trust and the Estate of her late father, Mr D;
(b) All funds standing in any bank account in her sole name;
(c) Her personal effects, furniture and contents in her possession;
(d) Her shareholdings;
(e) Her superannuation entitlements, subject to these orders.
14. The wife remain liable for and indemnify the husband and keep him indemnified against all personal liabilities of the wife, including but not limited to personal loans, credit cards and taxation liabilities.
Assets to be retained by the husband
15. The Husband otherwise retain to the exclusion of the wife the following assets:
(a) All funds standing in any bank account in his sole name;
(b) His personal effects, furniture and contents in his possession save for such items to be retained by the wife pursuant to order 10;
(c) His shareholdings;
(d) The Motor Vehicle 2; and
(e) His superannuation entitlements subject to these orders.
16. The husband remain liable for and indemnify the wife and keep her indemnified against all personal liabilities of the husband, including but not limited to personal loans, credit cards and taxation liabilities.
Superannuation
Split of husband’s superannuation interest
17. Orders 18 to 21 of these orders are binding on the Trustee, Super Fund 1 (“the husband’s trustee”), being the trustee of Super Fund 2 (“the husband’s fund”).
18. In accordance with paragraph section 90XT(1)(b) of the Family Law Act 1975 (Cth) (the Act):
(a) The wife (or her administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid the specified percentage out of the husband’s interest in the husband’s fund;
(b) The husband’s entitlement in the husband’s fund is correspondingly reduced by force of this order; and
(c) The percentage specified for the purposes of this order is 50%.
19. The husband’s trustee of the husband’s fund do all such acts and things and sign all documents as may be necessary to:
(a) Calculate, in accordance with the requirements of the Act and Part 6 of the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the wife in the immediately preceding clause of this order;
(b) Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the husband’s fund.
20. Order 18 has effect from the operative time and the operative time is four business days from the date of service of a sealed copy of these orders on the husband’s trustee of the husband’s fund.
21. After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the parties shall do all such things and sign all documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the rollover or transfer of the wife’s interests in the husband’s fund.
Split of wife’s superannuation interest
22. Order 23 to 26 of these orders are binding on the Trustee, Super Fund 3 (“the wife’s trustee”), being the trustee of the Super Fund 3 Trust (“the wife’s superannuation fund”).
23. In accordance with sub-section 90XT(1)(b) of the Family Law Act 1975 (Cth) (“the Act”):
(a) The husband (or his administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid the specified percentage out of the wife’s interest in the wife’s fund;
(b) The wife’s entitlement in the wife’s fund is correspondingly reduced by force of this order; and
(c) The percentage specified for the purposes of this order is 50%.
24. The wife’s trustee of the wife’s fund do all such acts and things and sign all documents as may be necessary to:
(a) Calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the husband in the immediately preceding clause of this order;
(b) Pay the entitlement whenever the trustee makes a splittable payment from the wife’s interest in the wife’s Fund.
25. Order 23 has effect from the operative time and the operative time is four business days from the date of service of a sealed copy of these orders on the wife’s trustee of the wife’s fund.
26. After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the parties shall do all such things and sign all documents as may be necessary, including but not limited to exercising the husband’s request in accordance with the SIS Regulations, for the rollover or transfer of the husband’s interests in the wife’s fund.
Other property, liabilities and superannuation
27. Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all other real and personal property (including choses-in-action) in the ownership or possession of such party as at the date of these orders;
(b) The parties forthwith do all such acts and things necessary and sign all documents as may be required to close the joint xx…23 account, with any balance remaining to be retained by the husband;
(c) Insurance policies and income protection policies remain the sole property of the owner named therein;
(d) Each party hereby foregoes any claims they may have to any superannuation benefit or other employment-based entitlements belonging to or owned by the other;
(e) 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; and
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Procedural
28. All extant applications be dismissed.
AND THE COURT NOTES THAT:
A. Pursuant to section 81 of the Act, these orders are intended to finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
B. Orders 18 and 19(a) are amended pursuant to rule 10.13(f) of the Rules with the consent of the parties following a request of the trustee of Super Fund 2.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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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