FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOTOLOS & TOTOLOS | [2011] FMCAfam 355 |
| FAMILY LAW – Property – net asset pool of over $2,000,000.00 – 18 year marriage – husband found to have made greater initial contribution – wife found to have greater needs pursuant to section 75(2) – ordered 55:45 division of the parties’ realisable assets in favour of the wife, together with an order equalising the parties’ respective superannuation entitlements. |
| Administration and Probate Act 1958, s.51 Family Law Act 1975, ss.75, 79 |
| M & M [1998] FamCA 42 C & C [1998] FamCA 143 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 Re NHC and RCH (2004) FLC 93-204 AJO v GRO (2005) FLC 93-218 M and M [2006] FamCA 913 |
| Applicant: | MS TOTOLOS |
| Respondent: | MR TOTOLOS |
| File Number: | MLC 9788 of 2009 |
| Judgment of: | Bender FM |
| Hearing dates: | 13, 14 & 15 April 2011 |
| Date of Last Submission: | 15 April 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 28 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wood |
| Solicitors for the Applicant: | Robinson Gill |
| Counsel for the Respondent: | Ms Stoikovska |
| Solicitors for the Respondent: | William J Keough |
ORDERS
The wife forthwith do all such acts and things and sign all such documents as may be required to transfer to the husband, at the expense of the husband, all of her right, title and interest in the real property situate at and known as Property W being the whole of the land more particularly described in Certificate of Title Volume [omitted] (“Property W”).
The wife forthwith do all things necessary, at her expense, to provide the husband with a withdrawal of the caveat numbered [omitted] currently registered by her solicitors over Property W.
The husband indemnify the wife against all apportionable rates, taxes and outgoings of or with respect to Property W of whatsoever nature and kind.
The husband forthwith do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his right, title and interest in the real property situate at and known as Property M being the whole of the land more particularly described in Certificate of Title Volume [omitted] (“Property M”).
The wife indemnify the husband against all apportionable rates, taxes and outgoings of or with respect to Property M of whatsoever nature and kind.
Subject to order 7 herein, the husband pay to the wife the sum of $446,528.00 (“the payment”) on or before 26 August 2011 (“the date”).
On or before 25 July 2011 the husband shall notify the wife in writing whether he is able to comply with order 6 herein.
In the event that the husband notifies the wife pursuant to order 7 herein that he is able to comply with order 6 herein and the whole of the payment has not been made by the date then the husband sign all documents and do all things necessary to transfer to…
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- Case
- [2011] FMCAfam 355
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation and application of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001. The court needed to determine the appropriate division of the couple's property, including real estate and superannuation, and to make orders for the payment of debts and liabilities. The court also had to consider the implications of the couple's joint tenancy and the need to sever any joint interests in their property.
The court reasoned that the division of the couple's property should be equitable, taking into account their respective contributions to the relationship and their future needs. The court ordered the transfer of specific real properties between the parties, with provisions for the payment of rates, taxes, and outgoings. Additionally, the court allocated a base amount from the husband's superannuation to the wife, with further provisions for the calculation and payment of entitlements from the husband's superannuation fund. The court also made orders for the payment of debts, the severance of joint tenancy, and the indemnification of the parties against certain liabilities.
The final orders included the transfer of specific properties, the payment of debts, the allocation of superannuation interests, and the indemnification of the parties against certain liabilities. The court appointed a Registrar to enforce the orders in the event of non-compliance and provided for the severance of joint tenancy and the exclusion of each party to their respective property.
Orders
Orders of the court
1.
The wife forthwith do all such acts and things and sign all such documents as may be required to transfer to the husband, at the expense of the husband, all of her right, title and interest in the real property situate at and known as Property W being the whole of the land more particularly described in Certificate of Title Volume [omitted] (“Property W”).
2.
The wife forthwith do all things necessary, at her expense, to provide the husband with a withdrawal of the caveat numbered [omitted] currently registered by her solicitors over Property W.
3.
The husband indemnify the wife against all apportionable rates, taxes and outgoings of or with respect to Property W of whatsoever nature and kind.
4.
The husband forthwith do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his right, title and interest in the real property situate at and known as Property M being the whole of the land more particularly described in Certificate of Title Volume [omitted] (“Property M”).
5.
The wife indemnify the husband against all apportionable rates, taxes and outgoings of or with respect to Property M of whatsoever nature and kind.
6.
Subject to order 7 herein, the husband pay to the wife the sum of $446,528.00 (“the payment”) on or before 26 August 2011 (“the date”).
7.
On or before 25 July 2011 the husband shall notify the wife in writing whether he is able to comply with order 6 herein.
8.
In the event that the husband notifies the wife pursuant to order 7 herein that he is able to comply with order 6 herein and the whole of the payment has not been made by the date then the husband sign all documents and do all things necessary to transfer to the wife the real property at Property C being the land more particularly described in Certificate of Title Volume [omitted] (“Property C”) to be held on trust for sale (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a) firstly to pay all costs, commissions and expenses of (the said trust transfer and) the sale;
(b) secondly to pay any encumbrance affecting Property C;
(c) thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the date to the wife; and
(d) fourthly the balance to the husband.
9.
In the event that the husband notifies the wife pursuant to order 7 herein that he us unable to comply with order 6 herein then the husband shall do all things necessary to forthwith place Property C upon the market for sale (“the alternate sale”) and upon completion of the alternate sale, the proceeds of the alternate sale be applied:
(a) firstly to pay all costs, commissions and expenses of the alternate sale;
(b) secondly to pay any encumbrance affecting Property C;
(c) thirdly 55 per cent of the net proceeds of the alternate sale, plus an additional $82,510.50, to the wife; and
(d) fourthly the balance to the husband.
10.
Both parties have liberty to apply in respect to the terms of the sale or the alternate sale.
11.
Pending the payment, completion of the sale or completion of the alternate sale:
(a) the husband have the sole right to occupy Property C and during such right of occupation the husband pay all rates and taxes and like apportionable outgoings of Property C as they fall due;
(b) the parties hold their respective interests in Property C upon trust pursuant to these orders;
(c) neither party encumber Property C without the consent in writing of the other party; and
(d) the husband and wife be equally responsible for payment of the mortgage to the Westpac Banking Corporation (“the mortgage”) registered over Property M and over the property registered in the wife’s name at Property H being the land more particularly described in Certificate of Title Volume [omitted] (“Property H”).
12.
Upon payment, completion of the sale or completion of the alternate sale, the wife shall indemnify the husband against all payments and liability pursuant to the mortgage and shall do all things necessary to refinance the mortgage so that the husband has no liability in respect to the mortgage.
13.
In the event the husband or the wife refuses or neglects to comply with any provision of this order:
(a) a Registrar of the Federal Magistrates Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these orders; and
(b) the defaulting party is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this order and providing his/her damages; and
(c) for the purpose of this order, an affidavit setting out the defaulting party’s failure to comply with the orders shall be sufficient evidence of neglect and default.
14.
Paragraphs 15 to 18 inclusive of these orders are binding on the Trustee of the [T] Super Personal Fund (“the Fund”).
15.
Pursuant to section 90MT(4) of the Family Law Act 1975, the amount of $238,447.50 be allocated as the base amount to the wife out of the interest of the husband (Member [number omitted]) in the Fund.
16.
Pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever the Trustee of the Fund makes a splittable payment out of the husband’s interest in the Fund, the Trustee shall:
(a) pay to the wife the entitlement calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001; and
(b) make a corresponding reduction in the entitlement that the husband would otherwise have had in the Fund but for these orders.
17.
The operative time for the splitting of the Fund shall be four business days after the Trustee of the Fund has been served with a copy of this order.
18.
The Trustee do all such acts and things and sign all necessary documents to fulfil any obligation set out in the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 so that the wife’s entitlement can be calculated and paid to her in accordance with these orders.
19.
Unless otherwise specified in these orders and save for the purposes 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 superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in Property M and Property H being deemed to be in the possession of the wife and the furniture, personal possessions, and like chattels in Property W and Property C being deemed to be in the possession of the husband);
(b) insurance policies remain the sole property of the owner named thereon;
(c) 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
(d) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
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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