TUTT & TUTT

In Tutt & Tutt, heard before Judge Phipps, the applicant wife, Ms Tutt, and the respondent husband, Mr Tutt, sought a division of their property following a 33-year marriage and subsequent separation. The parties, who immigrated to Australia and established a construction and development business, did not agree on the distribution of their assets after the business was wound up and some properties sold. The primary disputes concerned how post-separation income and contributions should be treated and whether the property division should be equal or adjusted in favour of the wife.

The court was required to determine the legal issues surrounding the division of property, specifically addressing how money received and used by each party after separation should be accounted for. A key question was whether the division of property should be equal, given the parties agreed their contributions until separation were equal, or if an adjustment in favour of the wife was warranted. This adjustment was sought by the wife based on her post-separation contributions in winding up the business and caring for their younger child, as well as the husband's receipt of a United Kingdom pension.

Judge Phipps reasoned that the parties' contributions until separation were equal. The court considered the various assets and liabilities, including trust funds, real estate, vehicles, shares, and a karaoke machine. The husband's United Kingdom pension was deemed a financial resource under s.75(2) of the Family Law Act 1975 (Cth), rather than divisible property, due to limitations on splitting orders and the husband's inability to receive a lump sum, with its value assessed at approximately $310,000 for the wife's calculation. The court also noted that small amounts of cashed-in superannuation would not be taken into account.

The court ordered that the amounts held in trust by Falcone & Adams and Duffy Simon be paid to the husband. The wife was to receive certain real properties, with a payment of $303,753.68 to be made to the husband by 30 May 2015, or alternatively, one of the properties was to be sold with proceeds applied first to sale costs, then to discharge encumbrances, then to satisfy the outstanding payment with interest, and finally, any balance to the wife. The husband was to retain his Peugeot vehicle and specific shares, while the wife was to retain her Mercedes and Jaguar vehicles and a karaoke machine. Each party was to be solely entitled to their superannuation and other property, excluding any amounts needed to enforce orders.