Trebiano & Trebiano

Case [2018] FamCA 344

FAMILY COURT OF AUSTRALIA

TREBIANO & TREBIANO [2018] FamCA 344
FAMILY LAW – PROPERTY – 25 year marriage where parties were 45 at time of marriage – Where both parties seek disparate orders as to adjustment – Where appropriate to make orders – Where consideration of contributions – Where wife’s Kennon argument not made out – Where contributions overall significantly favour the wife – Where consideration of relevant s 75(2) factors requiring some adjustment in favour of husband – Where consideration of applicable principles – Where orders made.
Family Law Act 1975 (Cth) ss 75(2), 79,
Bevan & Bevan [2014] FamCAFC 19
Chancellor & McCoy [2016] FamCAFC 256
Chapman & Chapman [2014] FamCAFC 91
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Kennon & Kennon (1997) FLC 92-757;[1997] Fam LR 1
Pandelis & Pandelis (2018) FLC 93-831; [2018] FamCAFC 66
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
APPLICANT: Ms Trebiano
RESPONDENT: Mr Trebiano
FILE NUMBER: PAC 1251 of 2017
DATE DELIVERED: 18 May 2018
PLACE DELIVERED: Parramatta
PLACE HEARD: Parramatta
JUDGMENT OF: Foster J
HEARING DATE: 1, 2 and 5 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney
SOLICITOR FOR THE APPLICANT: Maclarens Lawyers
COUNSEL FOR THE RESPONDENT: Mr Johnston
SOLICITOR FOR THE RESPONDENT: Brander Smith Mcknight Lawyers

Orders

  1. That the parties do all things necessary to forthwith sell the property at B Street, Suburb C for the best price reasonably obtainable and on sale after payment of agent’s commission, selling costs and contract adjustments divide the proceeds of sale as to 55 per cent plus $32,981.00 to the Wife and the balance then remaining to the Husband.

  2. That pending sale the husband pay as they fall due and payable outgoings including council and water rates, insurances and services and maintain the property in good order and condition having regard to the condition of the property as at the date of Single Expert valuation.

  3. Liberty to apply as to the implementation or enforcement of the previous order.

  4. That the Husband and Wife do all things necessary to cause D Pty Ltd as trustee of the Trebiano Pension Fund to comply with the following:

    (a)That a base amount sum as is necessary to cause the Wife to have a total superannuation entitlement equal to 80 per cent of the net value of the Trebiano Pension Fund is allocated, as required by s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”), to the Wife out of the Husband’s interest in the Trebiano Pension Fund.

    (b)That, in accordance with s 90MT(1)(c) of the Act:

    (i)the Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Superannuation Regulations”); and

    (ii)the Husband’s entitlement in the Trebiano Pension Fund is correspondingly reduced.

    (c)That D Pty Ltd the trustee of the Trebiano Pension Fund shall do all acts…

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AGLC
Trebiano & Trebiano [2018] FamCA 344
Case
[2018] FamCA 344
Decision Date

CaseChat Overview and Summary

This matter concerned the division of property and superannuation interests between a husband and wife. The court was required to make orders regarding the sale of a jointly owned property and the division of its proceeds, as well as the allocation of a significant superannuation entitlement held within the Trebiano Pension Fund.

The primary legal issues before the court were how to achieve a just and equitable division of the parties' assets, specifically addressing the distribution of proceeds from the sale of their matrimonial home and the complex reallocation of superannuation interests. This included determining the appropriate method for calculating and transferring a portion of the husband's superannuation to the wife, and ensuring compliance with the relevant provisions of the *Family Law Act 1975* (Cth) and associated regulations.

Foster J ordered the sale of the parties' property at B Street, Suburb C, with the proceeds to be divided 55 per cent plus $32,981.00 to the wife and the balance to the husband. Pending sale, the husband was to meet all outgoings and maintain the property. Crucially, the court also made detailed orders concerning the Trebiano Pension Fund, directing the trustee, D Pty Ltd, to allocate a base amount to the wife to ensure she received 80 per cent of the fund's net value. These orders mandated the calculation and transfer of the wife's entitlement in accordance with the *Family Law (Superannuation) Regulations 2001* (Cth), with corresponding reductions to the husband's interest. The husband was also ordered to facilitate the transfer of his interests in D Pty Ltd to the wife. Liberty to apply was granted for the implementation or enforcement of these orders.

Orders

Orders of the court

1.

That the parties do all things necessary to forthwith sell the property at B Street, Suburb C for the best price reasonably obtainable and on sale after payment of agent’s commission, selling costs and contract adjustments divide the proceeds of sale as to 55 per cent plus $32,981.00 to the Wife and the balance then remaining to the Husband.

2.

That pending sale the husband pay as they fall due and payable outgoings including council and water rates, insurances and services and maintain the property in good order and condition having regard to the condition of the property as at the date of Single Expert valuation.

3.

Liberty to apply as to the implementation or enforcement of the previous order.

4.

That the Husband and Wife do all things necessary to cause D Pty Ltd as trustee of the Trebiano Pension Fund to comply with the following:

(a) That a base amount sum as is necessary to cause the Wife to have a total superannuation entitlement equal to 80 per cent of the net value of the Trebiano Pension Fund is allocated, as required by s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”), to the Wife out of the Husband’s interest in the Trebiano Pension Fund.

(b) That, in accordance with s 90MT(1)(c) of the Act:

(i) the Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Superannuation Regulations”); and

(ii) the Husband’s entitlement in the Trebiano Pension Fund is correspondingly reduced.

(c) That D Pty Ltd the trustee of the Trebiano Pension Fund shall do all acts and things and sign all such documents as may be necessary to:

(i) calculate, in accordance with the requirements of the Act and the Superannuation Regulations, the entitlement created for Wife in Order 3(a); and

(ii) transfer the entitlement to the Wife’s member benefit entitlement in the Trebiano Pension Fund and correspondingly reduce the entitlement of the Husband.

(d) That this order have effect from the operative time being the date of this order.

(e) That the Husband shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising the request pursuant to r 7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the Superannuation Industry Regulations”) for the rollover or transfer of the Husband’s transferable benefits either in specie or in cash out of the Trebiano Pension Fund to a complying fund of the Husband’s choosing in accordance with r 7A.12 of the Superannuation Industry Regulations.

5.

Liberty to apply as to implementation or enforcement of the previous order.

6.

That concurrently with the Husband’s compliance with Order 3(e) above, the husband shall do all things necessary and sign all necessary documents to transfer to the wife or her nominee all his interest and shareholding in D Pty Ltd and resign from any office held by him in the said company.

7.

That any application for costs be by way of written submissions filed and served within 28 days from this date with any submissions in response to be filed and served within a further 14 days and judgment thereafter be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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