FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ungur & Inaba [2021] FedCFamC2F 65
File number(s): SYC 1757 of 2019 Judgment of: JUDGE MORLEY Date of judgment: 17 September 2021 Catchwords: FAMILY LAW – property – application for property orders pursuant to section 79 of the Family Law Act 1975 (Cth) – where both parties seek property adjustment orders – where Court finds it is just and equitable to make an order pursuant to section 79 – Court makes adjustment pursuant to section 79(4)
FAMILY LAW – property – addbacks – asserted addbacks for funds spent by Applicant from redundancy payment – asserted addbacks for funds spent by Respondent in drawing down mortgage and offset accounts – asserted addbacks for legal fees – Court accepts addbacks for Applicant’s redundancy payment and legal fees only
Legislation: Evidence Act 1995 (Cth), s 50
Family Law Act 1975 (Cth), ss 75, 79, 79A, 117, 117B
Cases cited: AJO v GRO (2005) 191 FLR 317
Bevan & Bevan (2013) 279 FLR 1
Dickons & Dickons [2012] FamCAFC 154
Fields & Smith [2015] FamCAFC 57
Fontana & Fontana [2018] FamCAFC 63
Grier & Malphas (2017) 55 Fam LR 107
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
In the Marriage of Harris (1991) 104 FLR 458
Jabour & Jabour [2019] FamCAFC 78
Keskin & Keskin and Anor [2019] FamCAFC 236
Masoud & Masoud [2016] FamCAFC 24
Shan & Prasad [2018] FamCAFC 12
Stanford & Stanford (2012) 247 CLR 108
Talbot & Talbot [2015] FamCAFC 132
Toft & Royce [2013] FamCA 372
Trevi & Trevi [2018] FamCAFC 173
Vass & Vass [2015] FamCAFC 51
Watson & Ling [2013] FamCA 57Division: Division 2 Family Law Number of paragraphs: 250 Date of last submissions: 5 June 2020 Date of hearing: 7 and 8 May 2020 and 5 June 2020 Place: Sydney Counsel for the Applicant Mr Blackah Solicitor for the Applicant Marsdens Law Group Counsel for the Respondent Dr Sayers Solicitor for the Respondent Cornerstone Law Offices ORDERS
SYC 1757 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN:
MR UNGUR
Applicant
AND: MS INABA
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
17 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.That pursuant to section 79 of the Family Law Act 1975 (Cth):
(a)That within two months of the date of this order the wife pay to the husband the sum of $118,245.50.
(b)That in the event that the wife does not pay to the husband the sum referred to in paragraph (a) herein within two months from the date of this order then the wife shall sign all documents and instruments and do all things necessary to list for sale the property at B Road, Suburb C in the State of Queensland (“the property”) at a listing price agreed upon between the parties, with a real estate agent agreed upon between them and shall proceed to a sale of the property at a sale price agreed upon…
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- Ungur & Inaba [2021] FedCFamC2F 65
- Case
- [2021] FedCFamC2F 65
- Decision Date
CaseChat Overview and Summary
The court found that it was just and equitable to make an order pursuant to section 79(4) of the Family Law Act 1975 (Cth). In determining the appropriate adjustment, the court accepted addbacks for funds spent by Mr Ungur from his redundancy payment and for legal fees incurred by both parties. However, the court rejected the addback for funds spent by Ms Inaba in drawing down her mortgage and offset accounts. The court allocated a base amount of $11,787 to Mr Ungur from Ms Inaba's superannuation interest and ordered that he be paid an amount calculated according to the Family Law (Superannuation) Regulations 2001 when a splittable payment becomes payable in respect of Ms Inaba's superannuation interest. The court also made specific orders regarding the ownership of personal property and financial assets for both parties.
The final orders of the court required Ms Inaba to pay Mr Ungur $118,245.50 within two months or, failing that, to list and sell the property at B Road, Suburb C, Queensland, and apply the proceeds in a specified manner. If the property did not sell by private sale within five months, it was to be listed for public auction, with costs shared between the parties. If the property did not sell by auction, it was to be resubmitted for sale by private treaty and public auction at six-monthly intervals until sold. The court also appointed specific individuals to resolve disputes regarding real estate agents, listing prices, and reserve prices, with costs shared between the parties. The orders further allocated specific personal property and financial assets to each party and provided for the enforcement of the orders by the Registrars of the Court in the event of non-compliance.
Orders
Orders of the court
SYC 1757 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR UNGUR
Applicant
AND:
MS INABA
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
17 SEPTEMBER 2021
THE COURT ORDERS THAT:
1. That pursuant to section 79 of the Family Law Act 1975 (Cth):
(a) That within two months of the date of this order the wife pay to the husband the sum of $118,245.50.
(b) That in the event that the wife does not pay to the husband the sum referred to in paragraph (a) herein within two months from the date of this order then the wife shall sign all documents and instruments and do all things necessary to list for sale the property at B Road, Suburb C in the State of Queensland (“the property”) at a listing price agreed upon between the parties, with a real estate agent agreed upon between them and shall proceed to a sale of the property at a sale price agreed upon between them and following such sale the proceeds of sale shall be applied as follows:-
(i) In adjustment of rates on settlement;
(ii) In payment of agent’s commission (if any) on sale;
(iii) In payment of legal and all other proper costs of sale;
(iv) In an amount required to discharge the mortgage registered on title;
(v) In division of the balance of the proceeds of sale between the parties in such manner in such division the wife has received 75% of the matrimonial asset pool (not including superannuation) and the husband has received 25% of the matrimonial asset pool (not including superannuation) on the basis that prior to such division of the balance of the proceeds of sale the husband has $50,585 and the wife has $107,008.
(c) That in the event that order 1(b) operates and the property does not sell by private sale within five months from the date of this order then the wife shall sign all documents and instruments and do all things necessary to list the property for sale by public auction with an auction agent agreed upon between the parties, at a reserve price agreed upon between them and shall proceed to a sale at a sale price agreed upon between them and the parties shall be responsible for all costs and expenses of the auction payable prior to the auction sale in the proportion 75% by the wife and 25% by the husband and following such sale the proceeds of sale be applied as provided in order 1(b) hereof.
(d) That in the event that order 1(c) operates and the property does not sell by public auction in accordance with order 1(c) then the property shall be resubmitted for sale by private treaty in accordance with the provisions of order 1(b) and the property shall be resubmitted for sale by public auction at six (6) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in order 1(b).
(e) That in the event that the parties are unable to reach agreement in relation to an auction agent or a real estate agent then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of Queensland or his or her nominee to determine such disputed matter or matters and the parties shall thereafter act in accordance with that determination and the parties shall be responsible for the costs and expenses of the President or his or her nominee in making such determination in the proportion 75% by the wife and 25% by the husband.
(f) That in the event that the parties are unable to reach agreement in relation to a listing price, a reserve price or a sale price whether for a sale by public auction or by private treaty then the parties shall and do hereby appoint the President for the time being of the Australian Property Institute Queensland Branch or his or her nominee to determine such disputed matter or matters and the parties shall be responsible for the costs and expenses of the President or his nominee in making such determination in the proportion 75% by the wife and 25% by the husband.
(g) That the Court allocates, pursuant to section 90XT(4) of the Family Law Act 1975 (Cth) a base amount of $11,787 to the Husband, Mr Ungur, out of the interest of the Wife, Ms Inaba, in the Employer C Superannuation Plan Number… in the Employer C Master Trust (“the fund”).
(h) That, pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of the Wife in the fund, the Husband will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using the base amount of $11,787 and that there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.
(i) That orders 1(g) and 1(h) bind the Trustee of the fund, Company C Limited, and take effect from the operative time being the fourth business day after the date of service of this order on the Trustee.
(j) That the husband is the sole owner in law and in equity as between himself and the wife of all personal property and financial assets currently in his power, possession, or control other than as specifically dealt with elsewhere in this order and including, but not limited to, the motor vehicle 1, the credit balance of his Bank D Account number ..59, and the notional addback of the sum of $42,000 of the moneys paid by him towards his legal fees for these proceedings.
(k) That the wife is the sole owner in law and in equity as between herself and the husband of all real property, personal property and financial assets currently in her power, possession or control other than as specifically dealt with elsewhere in this order and including, but not limited to, the motor vehicle 2, her shareholdings in Company E, Company C, Company F, and Company G, the credit balance in her Bank H Account number ..50, the furniture and household contents in her possession, and the notional addback of the sum of $15,000 of the moneys paid by her towards her legal fees for these proceedings.
2. That in the event that either party refuses or neglects to comply with any part of this order in relation to the execution of any deed, instrument or document, the Court appoints and authorises the Registrars of the Court to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument or document.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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