FAMILY COURT OF AUSTRALIA
| STOIAN & FIENING | [2014] FamCA 482 |
| FAMILY LAW – PROPERTY – Final – Short relationship – Where there is a significant disparity of capital contributions – How to reflect such a disparity in property settlement orders where substantial capital has been lost – Where there have been substantial withdrawals from a self-managed superannuation fund in breach of the Superannuation Industry (Supervision) Act 1993 (Cth) – Whether the evidence of the husband is unreliable |
| Family Law Act 1975 (Cth) Superannuation Industry (Supervision) Act 1993 (Cth) |
| Biltoft & Biltoft (1995) FLC 92-614 Chorn & Hopkins (2004) FLC 93-204 Ferraro & Ferraro (1993) FLC 92-335 Hickey & Hickey (2003) FLC 93-143 Kowaliw & Kowaliw (1981) FLC 91-092 Lee Steere & Lee Steere (1985) FLC 91-626 Malpass & Mayson (2000) FLC 93-061 Pastrikos & Pastrikos (1980) FLC 90-897 Polonius & York [2010] FamCAFC 288 Re Bailey & Bailey (1990) FLC 92-117 Stanford v Stanford (2012) 247 CLR 108 Waters & Jurek (1995) FLC 92-635 |
| APPLICANT: | Ms Stoian |
| RESPONDENT: | Mr Fiening |
| FILE NUMBER: | BRC | 8141 | of | 2011 |
| DATE DELIVERED: | 7 July 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 4 and 5 March 2013 and 28 January 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirk QC |
| SOLICITOR FOR THE APPLICANT: | Keating Kehn Solicitors |
| SOLICITOR FOR THE RESPONDENT: | Ms Bulyk |
Orders
IT IS ORDERED THAT:
B Street, Suburb R
Within twenty-one (21) days of the date of these Orders the husband shall notify the wife, by her solicitors in writing, as to whether:
(a) he elects to retain the property at B Street, Suburb R and take a transfer of the wife’s interest in exchange for a cash payment to the wife of $268,718.40 on the terms as provided for in Order 2 of these Orders; or
(b) he elects that the property be sold.
If the husband makes the election provided for in Order 1(a) then within forty-five (45) days of the date of these Orders the husband shall:
(a) re-finance the existing mortgage debt to ANZ Bank Limited secured over the property into his own name solely and indemnify the wife and keep her indemnified with respect to the existing mortgage debt and mortgage security; and
(b) pay by bank cheque to the trust account of the solicitors for the wife the sum of $268,718.40 in exchange for a duly executed transfer of the wife’s interest in the property in his favour.
If the husband fails to make any election within the time prescribed; or makes the election provided for in Order 1(b) or, having made the election provided for in Order 1(a), fails to discharge any of his obligations under Order 2; then the following Orders for sale of the property shall immediately take effect.
Subject to Orders 1 to 3 hereof the husband and wife forthwith do all acts and things and sign all documents necessary to effect a sale of the B Street property in the following manner:
(a) the property shall…
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- Case
- [2014] FamCA 482
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were how to divide the matrimonial home, specifically whether the husband would retain it or if it should be sold, and the terms of such sale or retention. Additionally, the court had to determine the distribution of superannuation entitlements, including the allocation of penalties imposed by the Australian Taxation Office, and the division of interests in various companies and trusts. The court also addressed the allocation of liabilities and the dismissal of an application for spousal maintenance.
Kent J ordered that the husband elect within twenty-one days whether to retain the property at B Street, Suburb R, by paying the wife $268,718.40 and refinancing the mortgage, or to have the property sold. If the husband failed to elect or to comply with the terms of retention, the property was to be sold by private treaty, with specific listing and sale price parameters, or by public auction if not sold within three months. The proceeds of sale were to be distributed in a defined order, with specific provisions for the division of net proceeds between the parties based on a formula. The wife was to retain her interest in the Stoian Superannuation Fund, with specific orders for the application of funds to extinguish liabilities and the allocation of ATO penalties, and the husband was to transfer his shareholdings in M Pty Ltd and G Pty Ltd to the wife, who would then be solely responsible for liabilities associated with these entities and other specified assets and liabilities. The wife's application for spousal maintenance was dismissed.
Orders
Orders of the court
IT IS ORDERED THAT:
B Street, Suburb R
1. Within twenty-one (21) days of the date of these Orders the husband shall notify the wife, by her solicitors in writing, as to whether:
(a) he elects to retain the property at B Street, Suburb R and take a transfer of the wife’s interest in exchange for a cash payment to the wife of $268,718.40 on the terms as provided for in Order 2 of these Orders; or
(b) he elects that the property be sold.
2. If the husband makes the election provided for in Order 1(a) then within forty-five (45) days of the date of these Orders the husband shall:
(a) re-finance the existing mortgage debt to ANZ Bank Limited secured over the property into his own name solely and indemnify the wife and keep her indemnified with respect to the existing mortgage debt and mortgage security; and
(b) pay by bank cheque to the trust account of the solicitors for the wife the sum of $268,718.40 in exchange for a duly executed transfer of the wife’s interest in the property in his favour.
3. If the husband fails to make any election within the time prescribed; or makes the election provided for in Order 1(b) or, having made the election provided for in Order 1(a), fails to discharge any of his obligations under Order 2; then the following Orders for sale of the property shall immediately take effect.
4. Subject to Orders 1 to 3 hereof the husband and wife forthwith do all acts and things and sign all documents necessary to effect a sale of the B Street property in the following manner:
(a) the property shall forthwith be listed for sale by private treaty with such real estate agent/agents as nominated by the wife;
(b) unless otherwise agreed in writing by the parties the listing price shall be $1 million;
(c) the husband shall be responsible for the initial payment of reasonable advertising expenses as recommended by the selling agent with this amount to be reimbursed to the husband on settlement of the sale; and
(d) unless otherwise agreed in writing by the parties the parties shall accept any offer to purchase the property for $950,000 or above.
5. In the event the B Street property has not sold within three (3) months of the date of listing, then the husband and wife shall do all such acts and things, and sign all documents necessary to procure a sale of the B Street property by public auction upon the following terms and conditions:
(a) the auctioneer shall be as determined by the wife;
(b) the reserve price shall be as nominated by the wife; and
(c) the husband shall be responsible for the initial payment of the auction expenses, with this amount to be reimbursed to the husband on settlement of the sale.
6. Pending the sale of the B Street property the husband shall:
(a) pay and indemnify the wife in relation to all mortgage payments to ANZ Bank Limited as and when they fall due; and
(b) pay and indemnify the wife in relation to all rates, water, and insurance payments with respect to the property as and when they fall due.
7. Pending the sale of the B Street property, the husband shall, after readying it for sale, make the B Street property available for inspection by prospective purchasers at all reasonable times and on reasonable notice from the selling agent, and will cooperate with the selling agent and make a key to the B Street property available to such agent/agents.
8. Pending the sale of the B Street property the husband shall do all acts and things reasonably required to maintain the property and shall ensure that vacant possession of the property is given in accordance with the contract of sale of the property.
9. Upon the sale of the B Street property, the sale proceeds shall be paid in the following order and manner:
(a) payment of any outstanding rates or water charges;
(b) payment of the amount required to discharge the mortgage in favour of ANZ Bank Limited;
(c) agent’s commission and auctioneer’s fees (if any);
(d) legal costs of the sale;
(e) any government duties and charges;
(f) in reimbursement of the husband’s payment of the advertising and auction costs (if any); and
(g) the net proceeds remaining (“the net proceeds”) as provided for in Orders 10 or 11 as the case requires.
10. If the amount of the net proceeds exceeds the amount of $285,156 then the husband is to receive the sum of $16,546.32 plus 12 per cent of any excess by which the amount the net proceeds exceeds the amount of $285,156, with the wife to receive the balance.
11. If the amount of the net proceeds is less than the amount of $285,156, then the husband shall receive (or pay to the wife as the case requires) the amount calculated as ($16,546.32 less x where x equals 12 per cent of the difference between $285,156 and the amount of the net proceeds of sale) and the wife shall receive the balance.
Funds in Trust
12. The wife shall receive or retain for her sole benefit, and the husband shall relinquish to the wife, all money held in the trust account of the wife’s solicitors sourced from the proceeds of sale of the property known as Property A.
The Stoian Superannuation Fund (“the Fund”)
13. The wife shall apply such amount out of the payment she receives from the husband, or from the sale proceeds of the B Street property, (whichever applies under these Orders) to the Fund so as to extinguish the liability of the parties or either of them for any withdrawals or loans from the Fund to the parties or either of them.
14. Both parties shall otherwise do all acts and things, including the execution of any documents, as recommended by the accountant for the Fund to eliminate or minimise any penalties being imposed upon the Fund by the Australian Taxation Office.
15. The husband shall be responsible for and indemnify the wife and keep her indemnified to the extent of 12 per cent of, any penalty imposed by the Australian Taxation Office with respect to the Fund attributable to the withdrawals/loans referred to in the affidavit of the single expert Mr H filed in these proceedings.
16. The wife shall be responsible for and indemnify the husband and keep him indemnified to the extent of 88 per cent of, any penalty imposed by the Australian Taxation Office with respect to the Fund attributable to the withdrawals/loans referred to in the affidavit of the single expert Mr H filed in these proceedings.
17. The wife shall otherwise retain free from all claims by the husband her entitlement in and to the Fund.
18. Pursuant to s 90MT(1)(A) of the Family Law Act 1975 (Cth), wherever a splittable payment becomes payable in respect of the husband’s interest in the Fund the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations being 100 per cent of the splittable payment and there shall be a corresponding reduction to the entitlement to the husband to whom the splittable payment would have been made but for this Order.
19. These Orders have effect from the operative time and the operative time is four (4) business days after service of these Orders on the Trustee of the Fund.
20. The Trustee, the husband and the wife, in accordance with the obligations set out under the Family Law Act 1975 (Cth), the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act and Regulations 1994 shall do all such acts and things, and sign all such documents as may be necessary to calculate the entitlement of, and make payment to, the wife in accordance with the provisions herein.
21. There be liberty to apply to each party and the Trustee of the Fund in relation to the implementation of the Orders concerning the Fund.
22. The wife serve the Fund with a sealed copy of these Orders as soon as practicable.
Companies
23. The wife retain free from all claims by the husband her interest in the following entities:
(a) M Pty Ltd;
(b) The Fiening Trust; and
(c) G Pty Ltd.
24. Within fourteen (14) days of the date of these Orders, the husband shall:
(a) transfer all of his shareholding in M Pty Ltd to the wife;
(b) resign as a director of M Pty Ltd; and
(c) transfer all of his shareholding in G Pty Ltd to the wife.
25. Save for any liability otherwise specifically dealt with in these Orders, the wife be solely responsible for and meet payment of all liabilities in the wife’s name, in the name of M Pty Ltd, the Fiening Trust and G Pty Ltd and the wife shall indemnify and keep indemnified the husband from any liability howsoever arising thereunder.
Other Property
26. The wife retain free from all claims by the husband her interest to and in the following:
(a) any funds standing to credit in any account in her sole name;
(b) the BMW motor vehicle, registered number …; and
(c) the personal property, furniture and effects in her possession.
27. The husband retain free from all claims by the wife his interest in the following:
(a) his entitlement with Australian Super;
(b) his entitlement with BT Lifetime Super;
(c) any motor vehicle in his possession;
(d) the Triumph motor bike;
(e) any funds standing to credit in any account in his sole name; and
(f) the personal property, furniture and effects in his possession.
Liabilities
28. Save for any liabilities specifically dealt with in these Orders, the wife be solely responsible for and meet payments of all liabilities in the wife’s name, and the wife further indemnify and keep indemnified the husband from any liability however arising thereunder.
29. Save for any liabilities specifically dealt with in these Orders, the husband be solely responsible for and meet payments of all liabilities in the husband’s name, and the husband further indemnify and keep indemnified the wife from any liability howsoever arising thereunder.
Miscellaneous
30. Each party sign all necessary documents and do all necessary things in order to give effect to the terms of these Orders and that in the event either party refuses or neglects to so comply, the Registrar of the Family Court of Australia at Brisbane is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all Deeds and documents in the name of either party and do all acts and things necessary to give effect to these Orders.
31. It shall be sufficient evidence of a default in signing a necessary document or instrument, as referred to above, when the party requiring it to be executed forwards the same to the other party, or the solicitors who act for the other party in the making of these Orders, and within fourteen (14) days hereof the same is not properly executed and returned to the party requiring its execution by the other party.
32. The wife’s application for spousal maintenance be dismissed.
33. The parties have liberty to apply for the making of further Orders to give effect to these Orders.
34. All outstanding applications be removed from the pending cases list.
AND IT IS FURTHER ORDERED THAT:
Referral of Papers
35. The Acting Principal Registrar is hereby authorised and requested to provide to the Commonwealth Attorney-General’s Department; the Australian Federal Police; and the Queensland Police Service a copy of these Reasons and the affidavit of Mr C filed 20 August 2012.
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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