FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Senga & Senga [2024] FedCFamC2F 403
File number(s): PAC 6296 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 3 April 2024 Catchwords: FAMILY LAW – PROPERTY – Just and equitable orders made. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Lotta & Lotta [2017] FamCA 50
Weir & Weir [1992] FamCA 69; (1993) 16 FLR 154
Division: Division 2 Family Law Number of paragraphs: 118 Date of hearing: 7 – 8 March 2024 Place: Parramatta Counsel for the Applicant: Ms Hamilton Solicitor for the Applicant: Family Focus Legal Pty Ltd Solicitor for the Respondent: Marsdens Law Group ORDERS
PAC 6296 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SENGA
Applicant
AND: MS SENGA
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
3 APRIL 2024
THE COURT ORDERS THAT:
1.The net sale proceeds of the property located at B Street, Suburb C, NSW, and the net sale proceeds of the property located at D Street, Suburb E, QLD, currently held in the controlled monies account operated by Family Focus Legal, be forthwith distributed to the parties as follows:
(a)$118,013 to the husband, and
(b)$596,279 to the wife.
2.Within 14 days of the date of these Orders, the parties do all things and sign all documents necessary to close the joint Commonwealth Bank of Australia account (ending #...73) with the funds remaining in that account to be retained by the wife.
3.Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of Mr Senga (DOB: 1974) in Super Fund 1 with Member ID … (“the husband’s superannuation fund”), the trustee shall pay to Ms Senga (DOB: 1974) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $81,793 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these Orders.
4.Order 3 has effect from the operative time and the operative time for the Order is the fourth business day from the date of service of these Orders upon the trustee of the husband’s superannuation fund.
5.Order 3 binds the trustee of the husband’s superannuation fund.
6.As between the husband and the wife, and subject to the above Orders, the husband shall retain all interest in and entitlement to:
(a)1 F Street in Country G;
(b)2 F Street in Country G;
(c)3 F Street in Country G;
(d)Motor Vehicle 1;
(e)Motor Vehicle 2;
(f)All personal property now in his possession or control.
(g)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name.
(h)All interests in life insurance policies and superannuation funds standing in his sole name.
7.As between the husband and the wife, and subject to the above Orders, the wife shall retain all interest in and entitlement to:
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CaseChat Overview and Summary
Judge Newbrun examined the evidence and submissions from both parties, applying the principles of the Family Law Act 1975 (Cth). The court considered factors such as the contributions of each party to the acquisition and maintenance of the property, the needs of both parties, and the just and equitable outcome. The judge found that the distribution of the net sale proceeds of the properties and the bank account should be unequal, awarding a larger share to the wife. Additionally, the court ordered that a specific amount be paid from the husband's superannuation fund to the wife, effective from a specified date. The court also determined the ownership of various assets and liabilities, with each party retaining certain properties, vehicles, and personal effects, and each indemnifying the other for existing liabilities.
As a result of the court's decision, the net sale proceeds of the properties and the bank account were to be distributed unequally between the parties. The husband's superannuation fund was directed to make payments to the wife. Each party retained specific assets and was responsible for certain liabilities. The orders included provisions for the execution of necessary documents and the appointment of the Registrar to enforce the orders if either party failed to comply. The final orders reflected the court's determination of a just and equitable outcome considering the circumstances of the case.
Orders
Orders of the court
PAC 6296 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR SENGA
Applicant
AND:
MS SENGA
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
3 APRIL 2024
THE COURT ORDERS THAT:
1. The net sale proceeds of the property located at B Street, Suburb C, NSW, and the net sale proceeds of the property located at D Street, Suburb E, QLD, currently held in the controlled monies account operated by Family Focus Legal, be forthwith distributed to the parties as follows:
(a) $118,013 to the husband, and
(b) $596,279 to the wife.
2. Within 14 days of the date of these Orders, the parties do all things and sign all documents necessary to close the joint Commonwealth Bank of Australia account (ending #...73) with the funds remaining in that account to be retained by the wife.
3. Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of Mr Senga (DOB: 1974) in Super Fund 1 with Member ID … (“the husband’s superannuation fund”), the trustee shall pay to Ms Senga (DOB: 1974) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $81,793 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these Orders.
4. Order 3 has effect from the operative time and the operative time for the Order is the fourth business day from the date of service of these Orders upon the trustee of the husband’s superannuation fund.
5. Order 3 binds the trustee of the husband’s superannuation fund.
6. As between the husband and the wife, and subject to the above Orders, the husband shall retain all interest in and entitlement to:
(a) 1 F Street in Country G;
(b) 2 F Street in Country G;
(c) 3 F Street in Country G;
(d) Motor Vehicle 1;
(e) Motor Vehicle 2;
(f) All personal property now in his possession or control.
(g) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name.
(h) All interests in life insurance policies and superannuation funds standing in his sole name.
7. As between the husband and the wife, and subject to the above Orders, the wife shall retain all interest in and entitlement to:
(a) All personal property now in her possession or control.
(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name.
(c) All interests in life insurance policies and superannuation funds standing in her sole name.
8. Subject to the above Orders, the husband shall retain, and indemnify and keep indemnified, the wife in relation to all liabilities currently standing in his name or control.
9. Subject to the above Orders, the wife shall retain, and indemnify and keep indemnified, the husband in relation to all liabilities currently standing in her name or control.
10. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
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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