TAFFNER & TAFFNER (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAFFNER & TAFFNER (No.2)

[2020] FCCA 2328

Catchwords:
FAMILY LAW – Orders.

Applicant:

MR TAFFNER

Respondent:

MS TAFFNER

File Number:

BRC 1861 of 2019

Judgment of:

Judge Jarrett

Hearing date:

12 November 2019

Date of Last Submission:

12 November 2019

Delivered at:

Brisbane

Delivered on:

21 August 2020

REPRESENTATION

Solicitors for the Applicant:

Macpherson Family Law

Solicitors for the Respondent:

Rosen Lawyers

ORDERS

THE COURT ORDERS THAT:

Within ninety (90) days:
(a)the husband shall do all necessary things and execute all necessary documents to transfer to the wife (as Ms Taffner) all his right, title and interest in the property F Street, Suburb G in the State of Queensland being more particularly described as Lot ... on RP ... Title Reference ...;
(b)contemporaneous with order 1(a) hereof, the husband and the wife shall procure the release of the husband and the wife from the mortgage secured over F Street, Suburb G to the National Australia Bank Limited being mortgage number ... provided however if the mortgage cannot be released then the property referred to in order 1(d) shall be sold in accordance with order 8 hereof;
(c)the husband and the wife do all necessary things and execute all necessary documents to procure the release of the husband from mortgage number ... in respect of the property K Street, Suburb G in the State of Queensland being more particularly described as Lot ... on GTP ... Title Reference ...; and
(d)the husband and the wife shall do all necessary things and execute all necessary documents to procure the release of the wife from mortgage number ... to the National Australia Bank Limited in respect of the property H Street, Suburb J in the State of Queensland being more particularly described as Lot ... on RP ... Title Reference ....
The wife be entitled to retain for her sole use absolutely:
(a)F Street, Suburb G;
(b)K Street, Suburb G;
(c)Motor Vehicle 1;
(d)Acc No. ending ...16;
(e)Acc No. ending ...08;
(f)Acc No. ending ...93;
(g)Acc No. ending ...32;
(h)Acc No. ending ...53;
(i)Acc No. ending ...56;
(j)M shares;
(k)N shares;
(l)jewellery;
(m)half (according to value) of the available wine collection;
(n)furniture and chattels at the H Street, Suburb J property;
(o)furniture and chattels at the F Street, Suburb G property; and
(p)Super Fund O.
The wife is solely responsible for the liability on K Street, Suburb G Acc No: ...28.
The husband be entitled to retain for his sole use absolutely:
(a)H Street, Suburb J;
(b)Motor Vehicle 2;
(c)Acc No. ending ...34;
(d)Acc No. ending ...70;
(e)Acc No. ending ...65;
(f)Acc No. ending ...41;
(g)L shares;
(h)jewellery;
(i)furniture and chattels;
(j)half (according to value) of the available wine collection;
(k)his Super Fund P;
(l)balance of the Super Fund Q; and
(m)those available items as listed in Annexure C to the husband’s case outline with the condition that the wife make the items available for a courtier to collect at the husband’s expense.
The husband is solely responsible for the liabilities on H Street, Suburb J Acc No: ...83; Acc No: ...78; Acc No: ...30.
Within ninety (90) days of the date of these orders, the joint bank accounts of the parties namely, account numbers ending in ...87, ...19, ...74, ...43 and ...82, shall be closed and the net proceeds be paid to the husband.
In the event that the wife is unable to procure the release of the husband from the mortgage referred to in order 1(c) then that property (K Street, Suburb G) is then to be sold by private treaty as follows:
(a)the real estate agent shall be agreed between the parties by the solicitor for the wife providing a panel of three (3) real estate agents to the solicitor for the husband within seven (7) days of the date of these orders and the husband selecting an agent within a further period of seven (7) days;
(b)the listing price shall be as agreed between the parties and if the parties are unable to agree then as determined by the real estate agent;
(c)in the event that the said home not be sold and settlement take place by the two (2) months from the date of this order, then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and the applicant and the respondent shall pay all moneys necessary to procure a sale by public auction of the home upon the following terms:
(i)the auctioneer shall be agreed between the parties and failing agreement such auctioneer as nominated by the real estate agent;
(ii)the auction shall take place within one (1) month after the deadline date for the sale by private treaty;
(iii)the reserve price shall be agreed between the parties and failing agreement be as proposed by the auctioneer;
(iv)the applicant and the respondent shall pay and be responsible for payment of auction expenses payable before the home is auctioned;
(d)in the event the home is not sold by auction or by private negotiation within fourteen (14) days after the said auction then the applicant and the respondent do all acts and sign all necessary documents and the applicant and the respondent shall pay all moneys as necessary to procure a second auction within a further four (4) weeks of that date otherwise upon the same terms and conditions as applied to the first auction;
(e)upon completion of the sale, the proceeds of the sale or auction be applied as follows:
(i)first, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the home;
(ii)second, to discharge the mortgage and any other encumbrances affecting the real property;
(iii)third, to discharge any liability in relation to Capital Gains Tax; and
(iv)such net proceeds after the payment of all the said expenses above, shall be dispersed as follows:
(1)100% of such net proceeds shall be paid to the respondent.
In the event the husband is unable to procure the release from the mortgage referred to in order 1(d) then that property (H Street, Suburb J) is then to be sold by private treaty as follows:
(a)the real estate agent shall be agreed between the parties by the solicitor for the applicant providing a panel of three (3) real estate agents to the solicitor for the respondent within seven (7) days and the respondent selecting and agent within a further period of seven (7) days;
(b)the listing price shall be as agreed between the parties and if the parties are unable to agree then as determined by the real estate agent;
(c)in the event that the said home not be sold and settlement take place by the two (2) months from the date of this order, then the applicant and the respondent shall make all such arrangements and do all such acts and sign all such documents and the applicant and the respondent shall pay all moneys necessary to procure a sale by public auction of the home upon the following terms:
(i)the auctioneer shall be agreed between the parties and failing agreement such auctioneer as nominated by the real estate agent;
(ii)the auction shall take place within one (1) month after the deadline date for the sale by private treaty;
(iii)the reserve price shall be agreed between the parties and failing agreement be as proposed by the auctioneer;
(iv)the applicant and the respondent shall pay and be responsible for payment of auction expenses payable before the home is auctioned;
(d)in the event the home is not sold by auction or by private negotiation within fourteen (14) days after the said auction then the applicant and the respondent do all acts and sign all necessary documents and the applicant and the respondent shall pay all moneys as necessary to procure a second auction within a further four (4) weeks of that date otherwise upon the same terms and conditions as applied to the first auction;
(e)upon completion of the sale, the proceeds of the sale or auction be applied as follows:
(i)first, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the home;
(ii)second, to discharge the mortgage and any other encumbrances affecting the real property;
(iii)third, to discharge any liability in relation to Capital Gains Tax; and
(iv)such net proceeds after the payment of all the said expenses above, shall be dispersed as follows:
(1)100% of such net proceeds shall be paid to the applicant.
Within fourteen (14) days of the date of these orders that the wife do all things necessary, at her ex sole expense to collect and remove the furniture and chattels at the H Street, Suburb J property and that the husband provide her with access for that purpose.
For the purposes of orders 2(m) and 4(m) hereof, within fourteen (14) days of the date of these orders the wife shall make available to the husband to itemised lists of the Wine collection (of approximately equal value each) and the husband shall nominate which of those to itemised lists he seeks to retain. Within a further seven (7) days thereafter, the wife shall make the wine in the list nominated by the husband available for his collection at his sole expense.
In accordance with s.90XT(4) of the Family Law Act1975 (Cth), a base amount of $18,421.43 is allocated to the wife out of the husband’s interest in the Super Fund P as at the operative time.
In accordance with s.90XT(1)(a) of the Family Law Act1975 (Cth):
(a)the wife is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)the husband’s entitlement in the Super Fund P is correspondingly reduced by the force of this order.
The trustee of the Super Fund P do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth), the entitlement awarded to the wife in order 10; and
(b)pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the Super Fund P.
Order 11 has the effect from the operative time and the operative time is four (4) business days after the service of these orders on the trustee of the Super Fund P.
Orders 14 to 19 are binding on the trustee of the Super Fund Q.
In accordance with s.90XT(4) of the Family Law Act1975 (Cth), a base amount of $122,487.25 is allocated to the wife out of the husband’s interest in the Super Fund Q, as at the operative time.
In accordance with s.90XT(1)(a) of the Family Law Act1975 (Cth):
(a)the wife is entitled to be paid, using the base amount, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)there is a corresponding reduction in the entitlement of the husband, to whom the splittable payment would have been made but for these orders.
The Trustee of the Super Fund Q do all such acts and things and sign all documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act1975 (Cth), the entitlement awarded to the wife under orders 14 and 15; and
(b)pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the Super Fund Q.
Order 16 has effect from the operative time and the operative time for these orders is four (4) business days after the service of these orders upon the trustee of the Super Fund Q.
Within the time prescribed under the governing rules of the Super Fund Q, the husband request the trustee of the Super Fund Q create a new interest, rollover or transfer the wife’s entitlement in accordance with the requirements of the trust deed.
In accordance with the Family Law (Superannuation) Regulations 2001 (Cth), any payments from the husband’s interest in the Super Fund Q made after the trustee has created a new interest in the wife’s name in the Super Fund Q are not splittable payments.
After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth), the husband shall do all such acts and things and sign all documents as may be necessary, including but not limited to exercising the husband’s request in accordance with the regulations for the transfer or rollover of the non-member spouse’s interest in the wife’s name in the Super Fund P.
In the event the husband or the wife or either of them fails, refuses or neglects to execute any document or do anything necessary to give effect to the orders above, then pursuant to s.106A of the Family Law Act1975 (Cth), the Registrar of the Federal Circuit Court of Australia shall be and is hereby appointed to execute any deed or instrument in the name of the party, and to do all acts and things necessary to give validity to the operation of the deed of instrument.
There be liberty to each party and the trustee of the Super Fund Q to apply regarding the implementation of these orders affecting the interests of the husband and the wife in the Super Fund Q.

IT IS NOTED that publication of this judgment under the pseudonym Taffner & Taffner (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1861 of 2019

MR TAFFNER

Applicant

And

MS TAFFNER

Respondent

REASONS FOR JUDGMENT

On 11 May, 2020 I delivered reasons for judgment in parenting and property proceedings between these parties. I made parenting orders on that day. As for the property proceedings, I determined that I could not make property orders because of the way in which the parties had prepared and presented their cases. Specifically, I said,
75.    A number of observations are necessary about the above assets liabilities and financial resources. First, remarkably no balance sheet was tendered during the course of the trial. Neither did counsel address me on the assets, liabilities and financial resources as I should find them in terms. There were some submissions about add backs but generally no submissions were made about the assets, liabilities and financial resources of the parties. I was left to work it out from the parties’ jumbled material as best as I could.
76.    Insofar as the parties’ real property is concerned, there is no contest about values. Nor does there seem to be any contest about the liabilities that are secured over those real properties. I have constructed the above table using the affidavits of evidence in chief of both Mr and Ms Taffner each of which contains their own table of assets, liabilities and financial resources for which they contend.
…
78.    … Mr Taffner is the registered proprietor of the H Street, Suburb J property and so the legal owner of it. On the evidence, Ms Taffner has contributed to its acquisition and conservation. Its acquisition was financed using “a joint line of credit secured over [Ms Taffner’s] townhouse” being the K Street, Suburb G property, as well as the property at R Street, Suburb G property of which the parties were joint owners. The property at R Street, Suburb G was also subject to a security registered over the title to the K Street, Suburb G property. In her financial statement filed 5 November, 2019 Ms Taffner asserts to have an equal liability for the mortgage of the H Street, Suburb J property with the applicant. She asserts the property “was purchase solely in [Mr Taffner’s name] for tax purposes”. Given the way the parties have approached the case and ultimately the outcomes contended for by each of them, it is unnecessary to make a particular finding about the nature or extent of the equitable interest acquired by Ms Taffner in the H Street, Suburb J property.
…
132. No submissions were made to me about the form of order that should be made aware property adjustment the forms of order and proposed by the parties in the case outline is a not self-explanatory. Both presuppose that the H Street, Suburb J property should be sold, but it is unclear why that needs to happen. The husband’s interest in the wife’s residence should be transferred to her. It does not appear that that property is encumbered although it may be cross collateralised against the H Street, Suburb J property – it is not clear from the evidence.
133. If that property is unencumbered and it was transferred to the wife then she would have net property of $1,194,343. She would require a further $140,157 to make up her entitlement something which would be achieved by superannuation splitting order.
134. In the circumstances, it seems to me it appropriate to seek that the parties agree on the terms of orders to give effect to these reasons and bring those terms into court within the next 21 days. In the event that the parties are unable to reach agreement about the form of order within the 21 day period, each party may provide to the court the form of order for which that party contends together with submissions in support of that form of order and the matter can be determined on the papers.
The parties have now furnished the orders for which they each contend. There is broad agreement about them, but dispute about the incidental or consequential orders that need to be made. Sadly, it is apparent that there was no attempt made by the parties or either of their solicitors to reach agreement about the orders. They have simply sent to my chambers the orders for which they contend and then, without any direction to permit them to do so, they have made submissions on the form of order for which their client contends.
I have considered those submissions. I prefer those of the wife. The husband’s submissions suffer significantly because they misstate and mischaracterise my reasons in many respects. They assert that I made findings about matters where no finding was made. For example, what I said in paragraph 132 of my reasons (set out above) is said to be a finding that:
… the mortgage liabilities are “stand alone” mortgages and that there was no clear evidence of any cross collateralisation.
I made no such findings.
I prefer generally the orders proposed by the wife. They provide for a “clean break” and give greater effect to my reasons than do those proposed by the husband.
However, the superannuation splitting orders suggested by the husband have attracted the wife’s agreement and I will make those. I do not intend to make the orders sought by the wife about an audit of chattels and other items. Such an order was not the subject of any argument.
I make orders as set out at the commencement hereof.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 21 August 2020

Associate:

Date: 21 August 2020

[2020] FCCA 2328

21 August 2020

Key Legal Topics

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Family Law

Civil Procedure

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Jurisdiction

Statutory Construction