v and A - [2001] FMCAfam 231

FEDERAL MAGISTRATES COURT OF AUSTRALIA

V & A

[2001] FMCAfam 231

PROPERTY SETTLEMENT – ‘Special’ contributions; Superannuation – whether application can be adjourned until legislation comes into operation – Interim Orders – Necessity to ensure orders are interim if an adjournment is granted – Family Law Act (1975) Section 79(5); Family Law Amendment (Superannuation) Act (2000); Family Law Superannuation Regulations (2001); JEL & DDF (2000) FamCA1353 referred to Van Essen & Van Essen (2000) FLC 93-028 distinguished; Taylor & Taylor (2001) FamCA 866 followed.

Applicant:

M M V (formerly A by her litigation guardian B T V)

Respondent:

K A

File No:

ZM 5525 of 2001

Delivered on:

1^st November 2001

Delivered at:

Melbourne

Hearing Dates:

23 & 31 August 2001

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr I Mawson

Solicitors for the Applicant:

Taussig Cherrie & Associates

DX 38236 Flagstaff
Melbourne

Counsel for the Respondent:

Ms V Bennett

Solicitors for the Respondent:

Hogg & Reid

Level 7,555 Lonsdale St.
Melbourne

ORDERS

BY WAY OF INTERIM PROPERTY ORDERS IT IS ORDERED THAT:

The Husband and Wife forthwith do all acts and things to sell the investment property in the State of Victoria by public or auction or private treaty on terms and conditions to be agreed and to disperse the proceeds of the sale in the manner of following:
(a)in payment of costs and expenses of the sale
(b)in discharge of all registered encumbrances
(c)in payment thereof to the wife of a sum equal to 40% of the balance then remaining; and
(d)in payment to the husband of the balance.
Contemporaneously with the settlement of the property in Order 1 hereof or by the 7^th day of January 2002 whichever is the later, the husband pay to the wife the sum of $101, 380.00
Upon payment to the wife of the sum of $101,380.00 the wife sign all documents and do all things necessary to transfer her right title and interest in the property situate the former matrimonial home to the husband at his expense.
The husband indemnify the wife in relation to all liability relating to the former matrimonial home.
The parties have liberty to apply in relation to the terms and conditions of sale of the property the subject of the order in Order (1) hereof.
In the event that there is any capital gains tax payable by the husband as a consequence of the sale of the investment property the wife pay or reimburse the husband for one half of the capital gains tax payable within 14 days of presentation to her by the husband of:
(a)a copy of the tax assessment whereby the capital gains tax is discretely identified, or, failing a discrete assessment;
(b)a copy of the income assessment whereby the tax is payable but not identified together with a calculation by the husband’s Accountant indicating what portion of the tax assessment represents capital gains tax and how that assessment is arrived at.
Unless otherwise specified in these orders:
(a)each…

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 v and A

Details

AGLC: v and A [2001] FMCAfam 231
Case: [2001] FMCAfam 231
Decision Date: 1 November 2001

CaseChat Overview and Summary

The Federal Magistrates Court considered an application for property settlement between V (the wife) and A (the husband). The wife sought maintenance and a division of the property, while the husband applied for a final settlement of their property. The court issued interim property orders, including the sale of an investment property, payment of costs and encumbrances, and a specific distribution of the proceeds. The wife was also ordered to transfer her interest in the former matrimonial home to the husband upon receiving a payment of $101,380.00. Additionally, the husband was to indemnify the wife for any liabilities related to the former matrimonial home. The wife was to pay half of any capital gains tax resulting from the sale of the investment property, if applicable. The court also addressed the possession of other property and chattels, responsibilities for liabilities, and the handling of documents and exhibits. The wife's application for maintenance was dismissed, and the hearing for the settlement of property was adjourned.

The primary legal issues before the court were the fair division of the matrimonial property and the appropriate interim measures to be put in place pending the final determination of the property settlement. The court had to balance the equitable principles that guide property settlement in matrimonial cases with the practicalities of managing and selling the assets. The court considered the contributions of each party to the acquisition and preservation of the property, their future needs, and the potential impact of the sale on each party's financial position. Additionally, the court addressed issues related to the management of superannuation funds and the handling of tax liabilities arising from the property transactions.

In delivering the decision, the court focused on achieving an equitable outcome that provided for the wife's immediate financial needs while ensuring that the husband's entitlements to superannuation were protected. The court ordered the sale of the investment property with specific directions on the distribution of proceeds, reflecting an intention to address the wife's immediate financial requirements. The court also directed that the wife transfer her interest in the former matrimonial home to the husband upon receiving a specified payment, which was likely intended to address the wife's need for financial support during the period leading up to the final hearing. The court's approach to the division of superannuation and the handling of capital gains tax demonstrated a pragmatic consideration of the potential financial impacts on the parties. The court's orders reflect a careful balance between the immediate needs of the wife and the long-term financial security of both parties.

Orders

Orders of the court

BY WAY OF INTERIM PROPERTY ORDERS IT IS ORDERED THAT:

The Husband and Wife forthwith do all acts and things to sell the investment property in the State of Victoria by public or auction or private treaty on terms and conditions to be agreed and to disperse the proceeds of the sale in the manner of following:

(a) in payment of costs and expenses of the sale

(b) in discharge of all registered encumbrances

(d) in payment to the husband of the balance.

Contemporaneously with the settlement of the property in Order 1 hereof or by the 7th day of January 2002 whichever is the later, the husband pay to the wife the sum of $101, 380.00

Upon payment to the wife of the sum of $101,380.00 the wife sign all documents and do all things necessary to transfer her right title and interest in the property situate the former matrimonial home to the husband at his expense.

The husband indemnify the wife in relation to all liability relating to the former matrimonial home.

The parties have liberty to apply in relation to the terms and conditions of sale of the property the subject of the order in Order (1) hereof.

In the event that there is any capital gains tax payable by the husband as a consequence of the sale of the investment property the wife pay or reimburse the husband for one half of the capital gains tax payable within 14 days of presentation to her by the husband of:

(a) a copy of the tax assessment whereby the capital gains tax is discretely identified, or, failing a discrete assessment;

(b) a copy of the income assessment whereby the tax is payable but not identified together with a calculation by the husband’s Accountant indicating what portion of the tax assessment represents capital gains tax and how that assessment is arrived at.

Unless otherwise specified in these orders:

(a) each party be solely entitled to the exclusion of the other to all other property and chattels of what sort of a nature and kind in possession of such party as of the date of these orders for this purpose bank accounts are deemed to be in possession of the person whose name appears on bank records thereof, and insurance policies are deemed to be in the possession of the owner thereof;

(b) each party be solely liable for an indemnify the other against any liability encumbering the item of property to which that party is entitled to pursuant to these orders.

All documents produced under subpoena be collected by the solicitor issued by the subpoena and all documents be forthwith returned the their owner.

All Exhibits be returned at the expiration of 28 days unless an appeal is lodged.

10.

The wife’s application for maintenance filed on the 21st day of December 1999 be and is hereby dismissed.

11.

The husbands application for settlement of property filed on the 16th day of December 2000 and the wife’s Response filed on the 25th day of February 2001 be otherwise adjourned to a directions hearing by telephone at 9:30am on the 8th day of November 2002.

12.

Until further order the husband be restrained and an injunction is granted hereby restraining him from making any application or doing any act or thing causing his entitlement to superannuation benefits in the BT Superannuation Fund and the ComSuper Superannuation Fund to become payable to him.

13.

The wife forthwith serve a sealed copy of these orders upon the trustees of the BT Superannuation and the Comsuper Superannuation fund.

IT IS CERTIFIED THAT

14.

Pursuant to Rule 15.1 of the Federal Magistrates Court Rules it was reasonable to employ an advocate to represent the parties in the proceedings.

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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