Wylie and Russo

Case [2015] FCCA 3257


FEDERAL CIRCUIT COURT OF AUSTRALIA

WYLIE & RUSSO [2015] FCCA 3257
Catchwords:
FAMILY LAW – De facto property division – date of separation – defined benefit superannuation scheme in payment phase – no splitting order sought – treatment of superannuation benefit.

Legislation:

Family Law Act 1975, ss.4, 4AA, 75, 79, 90SF & 90SM.

Moby v Schulter [2010] FamCA 748
Jonah v White [2011] FamCA 221
Jacob v Lawrence [2013] FamCA 188
Sinclair v Whittaker [2013] FamCAFC 129
Cadman v Hallett (2014) 52 Fam LR 149
Aitken v Deakin [2010] FMCAfam 35
Stanford (2012) FLC 93-518
Watson v Ling (2013) 49 Fam LR 303
Bevan v Bevan (2013) 279 FLR 1
Vass v Vass [2015] FamCAFC 51
Semperton v Semperton (2012) 47 Fam LR 626
B v B [2005] FamCA 1034
PJM v STM (2005) FLC 93-242
Hayton v Bendle (2010) 43 Fam LR 602
Craig v Rowlands (2013) 49 Fam LR 136
T v T (2006) 35 Fam LR 181
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Applicant: MR WYLIE
Respondent: MS RUSSO
File Number: ADC 1715 of 2014
Judgment of: Judge Cole
Hearing dates: 14 & 15 July 2015 and 13 August 2015
Date of Last Submission: 13 August 2015
Delivered at: Adelaide
Delivered on: 11 December 2015

REPRESENTATION

Solicitor for the Applicant: Ms D Morosini
Solicitors for the Applicant: Di Morosini & Co
Counsel for the Respondent: Mr J Bowler
Solicitors for the Respondent: Lee & Partners

ORDERS

  1. That the applicant pay to the respondent the sum of ONE HUNDRED AND THREE THOUSAND DOLLARS ($103,000.00) within thirty (30) days of the date of this Order.

  2. That the applicant forthwith transfer to the respondent:

    (a)his interest in the property situated at Property A; and

    (b)his interest in the burial plot.

  3. That the respondent indemnify the applicant and keep him indemnified in respect of all outgoings on the said assets referred to in paragraph 2 hereof.

  4. That any interest the applicant may have in:

    (a)the property situated at Property C;

    (b)the property situated at Property P;

    (c)the property situated at Property T;

    (d)the respondent’s savings; and

    (e)the respondent’s superannuation benefit with (omitted) Super and (omitted) Super;

    vest in the respondent absolutely with the respondent to indemnify the applicant and keep him indemnified in respect of all associated outgoings and liabilities thereafter.

  5. That any interest the respondent may have in:

    (a)the property situated at Property R;

    (b)the Mercedes-Benz in the applicant’s possession;

    (c)the applicant’s share portfolio;

    (d)the applicant’s savings; and

    (e)the applicant’s (omitted) superannuation benefit;

    vest in the applicant absolutely with the applicant to indemnify the respondent and keep her indemnified in respect of all associated outgoings and liabilities thereafter.

  6. That each party otherwise retain the property in their possession and indemnify the other in respect of any liabilities arising therefrom.

  7. That the proceedings be otherwise dismissed.

  8. That there be liberty to apply as to consequential orders.

IT IS NOTED that publication of this judgment under the pseudonym Wylie & Russo is approved…

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Details
AGLC
Wylie and Russo [2015] FCCA 3257
Case
[2015] FCCA 3257
Decision Date

CaseChat Overview and Summary

In this matter before Judge Cole, the applicant and respondent were involved in a dispute concerning the division of property. The specific nature of the dispute, such as whether it arose from a marriage or de facto relationship, is not detailed, but the court's orders indicate a comprehensive division of various assets and liabilities between the parties.

The court was required to determine how to equitably distribute a range of assets, including real estate at multiple properties (Property A, C, P, T, and R), a motor vehicle, savings, superannuation benefits, and a burial plot. The orders also address the allocation of liabilities and outgoings associated with these assets, as well as the indemnification of each party by the other in respect of specific liabilities.

Judge Cole ordered a significant transfer of assets and liabilities. The applicant was ordered to pay a sum of money to the respondent and transfer his interests in Property A and a burial plot, with the respondent indemnifying the applicant for associated outgoings. Conversely, the respondent was to receive absolute vesting of the applicant's interests in Property C, Property P, Property T, savings, and superannuation, with the respondent assuming all associated liabilities. The respondent's interests in Property R, a Mercedes-Benz, savings, and superannuation were to vest absolutely in the applicant, who would then indemnify the respondent for related outgoings. Each party was to retain other property in their possession, with mutual indemnification for liabilities. The proceedings were otherwise dismissed, with liberty to apply for consequential orders.

Orders

Orders of the court

1.

That the applicant pay to the respondent the sum of ONE HUNDRED AND THREE THOUSAND DOLLARS ($103,000.00) within thirty (30) days of the date of this Order.

2.

That the applicant forthwith transfer to the respondent:

(a) his interest in the property situated at Property A; and

(b) his interest in the burial plot.

3.

That the respondent indemnify the applicant and keep him indemnified in respect of all outgoings on the said assets referred to in paragraph 2 hereof.

4.

That any interest the applicant may have in:

(a) the property situated at Property C;

(b) the property situated at Property P;

(c) the property situated at Property T;

(d) the respondent’s savings; and

(e) the respondent’s superannuation benefit with (omitted) Super and (omitted) Super;

vest in the respondent absolutely with the respondent to indemnify the applicant and keep him indemnified in respect of all associated outgoings and liabilities thereafter.

5.

That any interest the respondent may have in:

(a) the property situated at Property R;

(b) the Mercedes-Benz in the applicant’s possession;

(c) the applicant’s share portfolio;

(d) the applicant’s savings; and

(e) the applicant’s (omitted) superannuation benefit;

vest in the applicant absolutely with the applicant to indemnify the respondent and keep her indemnified in respect of all associated outgoings and liabilities thereafter.

6.

That each party otherwise retain the property in their possession and indemnify the other in respect of any liabilities arising therefrom.

7.

That the proceedings be otherwise dismissed.

8.

That there be liberty to apply as to consequential orders.

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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