Trevi and Trevi - [2017] FamCA 321

FAMILY COURT OF AUSTRALIA

TREVI & TREVI

[2017] FamCA 321

FAMILY LAW – PROPERTY – final property orders – just and equitable – long marriage of 19 years – contributions during the marriage – where the wife has been the primary carer of the children during the marriage – where the husband made significant financial contributions – where the properties were improved during the course of the marriage – where contributions are assessed as equal – where adjustments made for s 75(2) factors – where the wife is to receive 60 percent of the property pool.

FAMILY LAW – SPOUSAL MAINTENANCE – where the wife seeks spousal maintenance – where the application for spousal maintenance is dismissed.

FAMILY LAW – CHILD SUPPORT – where the wife seeks a departure order for periodic and non-periodic child support – where those applications are dismissed.

Child Support (Assessment) Act 1989 (Cth), ss 116(1)(b), 117, 118, 124, 125
Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 74(1), 75(2), 75(2)(o), 79, 79(2), 79(4), 117
Family Law Rules 2004 (Cth)

Babbit & Babbit (2011) 252 FLR 1

Bevan & Bevan (2013) FLC 93-545
Bolger & Headon (2014) FLC 93-575
Calder v Calder [2016] FamCAFC 36
Challen & Challen [2007] FamCA 1292
Charles & Charles [2017] FamCAFC 3
Chorn and Hopkins [2004] FLC 93-204
Ferraro & Ferraro (1992) Fam LR 1
Fields v Smith (2015) FLC 93-638
Grier & Malphas [2016] FamCAFC 84

Gyselman & Gyselman (1992) FLC 92-279
Hallinan & Witynski (1999) FLC 98-009
Hides & Hatton (1997) FLC 92-75

Mallet v Mallet (1984) 13 CLR 605
Marsh & Marsh (2014) FLC 93-576
Omacini & Omacini (2005) FLC 93-218
Stanford v Stanford (2012) 247 CLR 108
Vass & Vass [2015] FamCAFC 51

APPLICANT:

Ms Trevi

RESPONDENT:

Mr Trevi

FILE NUMBER:

MLC

8475

2014

DATE DELIVERED:

18 May 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

30 November 2015, 1, 2, 3 & 4 December 2015,
23, 24, 25, 26, 27 & 30 May 2016, 26 August 2016, 26 October 2016

Husband’s submission filed 15 June 2016
Wife’s submission in response filed 9 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B. Geddes Q.C. and Mr Nehmy

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr T. North S.C. and Ms M. Smallwood

SOLICITOR FOR THE RESPONDENT:

N Lawyers

Orders

THE COURT ORDERS THAT

The husband pay to the wife $1,931,152 on or before 4.00 pm on 18 August 2017.
The husband and wife do all such acts and things and sign all such documents to give effect to these orders, including but not limited to the signing of trustee minutes, rollover requests and related documents, as may be necessary to rollover or transfer the entitlement of the wife in the Trevi Family Superannuation Fund to another complying superannuation fund of the wife's choosing and that for this purpose:
(a)The wife provide to the husband details of her nominated complying superannuation fund within 14…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trevi and Trevi

Details

AGLC: Trevi and Trevi [2017] FamCA 321
Case: [2017] FamCA 321
Decision Date: 18 May 2017

CaseChat Overview and Summary

This matter concerned orders made by Thornton J in the Family Court of Australia, resolving financial and property disputes between a husband and wife. The primary dispute involved the division of the parties' assets, including superannuation interests and real property, and the wife's applications for spousal maintenance and departure orders.

The court was required to determine the appropriate distribution of the parties' property, including the wife's entitlement in the Trevi Family Superannuation Fund and the proceeds from the sale of the Suburb D property. Additionally, the court had to consider the wife's applications for spousal maintenance and departure orders, as well as the husband's application for costs.

Thornton J made detailed orders for the division of property. The husband was ordered to pay a significant sum to the wife and to facilitate the rollover of her superannuation entitlement. The Suburb D property was to be sold, with the proceeds distributed with a 60% share to the wife and 40% to the husband after sale costs. The parties were to retain other property in their possession, with specific provisions for joint bank accounts and superannuation benefits. The wife was also ordered to resign from her trustee positions in the Trevi Family Trust and Trevi Investment Trust. The wife's applications for spousal maintenance and departure orders, along with the husband's application for costs of a previous hearing, were dismissed. All other extant applications were also dismissed, and the matter was removed from the list.

Orders

Orders of the court

THE COURT ORDERS THAT

The husband pay to the wife $1,931,152 on or before 4.00 pm on 18 August 2017.

The husband and wife do all such acts and things and sign all such documents to give effect to these orders, including but not limited to the signing of trustee minutes, rollover requests and related documents, as may be necessary to rollover or transfer the entitlement of the wife in the Trevi Family Superannuation Fund to another complying superannuation fund of the wife's choosing and that for this purpose:

(a) The wife provide to the husband details of her nominated complying superannuation fund within 14 days of the date of these orders;

(b) The rollover or transfer be completed within 28 days of the date of these orders; and

(c) The value of the entitlement of the wife in the Trevi Family Superannuation Fund be calculated as at the date of these orders.

In the event that the property at C Street, Suburb D in Queensland (“the Suburb D property”) has not sold as at the date of these orders then the Interim Orders made 27 May 2016 be discharged and:

BY CONSENT IT IS ORDERED THAT

(a) The parties do all acts and things and sign all documents necessary to sell the Suburb D property and the property be sold forthwith.

THE COURT FURTHER ORDERS THAT

(b) For the purposes of the sale of the Suburb D property, the property be sold by an agent, at a price and upon terms to be agreed between the parties and failing agreement, to be nominated by the President of the Real Estate Institute of Queensland and upon completion of the sale, the proceeds be applied as follows:

(i) To pay the costs, commissions and expenses of the sale; and

(ii) The balance thereafter to be distributed as follows:

A. 60 percent to the wife; and

B. 40 percent to the husband.

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 other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the real properties to be received or retained by either party being deemed to be in the possession of that party);

(b) Monies standing to the credit of the parties in any joint bank account are to become the property of the husband;

(d) Insurance policies remain the sole property of the named owner;

(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders; and

(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

The wife sign all documents, within 14 days of receipt from the husband, and do all things necessary to resign from her position as trustee of and, subject to the terms of this order, release or forfeit any other interest she has in:

(a) The Trevi Family Trust; and

(b) The Trevi Investment Trust.

The wife’s applications for spousal maintenance, departure orders and non-periodic child support be dismissed.

The husband’s application for costs of the hearing on 13 February 2015 be dismissed.

All extant applications be otherwise dismissed and the matter be removed from the list of pending cases.

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.