FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZEIDMAN & GODAR | [2021] FCCA 510 |
| Catchwords: FAMILY LAW – Property settlement – de facto – contributions – s.90SF(2) considerations. |
| Legislation: Family Law Act1975 (Cth), ss.79(2), 90SM, 93SF(3) |
| Stanford v Stanford (2012) 247 CLR 108 Robb & Robb (1995) FLC 92-555 |
| Applicant: | MS ZEIDMAN |
| Respondent: | MR GODAR |
| File Number: | HBC 1022 of 2018 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 17 & 19 November 2020 & 10 February 2021 |
| Date of Last Submission: | 10 February 2021 |
| Delivered at: | Launceston |
| Delivered on: | 22 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Turnbull |
| Solicitors for the Applicant: | Ogilvie Jennings |
| Counsel for the Respondent: | Mr Trezise |
| Solicitors for the Respondent: | Wallace Wilkinson & Webster |
ORDERS – AS CORRECTED pursuant to amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001
(A)(1) That the proceeds of sale of the jointly owned property at B Street, Town C in Tasmania currently held in trust on behalf of the parties jointly ($212,119.52), be released to the applicant; and
(2)Any balance funds including accrued interest over the sum of $212,119.52 held in trust on behalf of the parties be divided as to 60% to the respondent and 40% to the applicant.
(B)That the respondent shall:
(1)Within sixty (60) days of the date of these Orders pay to the applicant a lump sum of $99,215.
(2)Transfer and/or vest all his right, title and interest in the following to applicant absolutely:
(i)The Motor Vehicle 1;
(ii)All personalty and chattels in the possession of or under the control of the applicant as at the date of these Orders;
(iii)Balances of any bank accounts or like investments in the name of or to the benefit of the applicant as at the date of these Orders; and
(iv)The applicant’s superannuation policies and entitlements.
(3)Be solely responsible for and indemnify the applicant in respect of:
(i)Any and all liabilities attaching to any of the assets retained by the respondent pursuant to these Orders and if necessary to provide the applicant with a release from any mortgage secured by any assets retained by the respondent pursuant to these Orders; and
(ii)Any and all liabilities incurred by the respondent since separation in either joint names or in his name alone.
(C)That the applicant shall:
(1)Contemporaneously with the payment referred to in paragraph (A)(1) hereof, transfer and/or vest all her right, title and interest in the following to the respondent absolutely:
(i)The property situate at D Street, Town C in Tasmania registered in the name of the respondent;
(ii)The property situate at Town E, Tasmania registered in the name of the respondent;
(iii)The respondent’s Motor Vehicle 2;
(iv)The respondent’s trailer;
(v)All personalty and chattels in the…
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- ZEIDMAN & GODAR [2021] FCCA 510
- Case
- [2021] FCCA 510
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate distribution of the parties' property and financial resources, considering their respective contributions and the factors outlined in section 90SF(2) of the *Family Law Act 1975* (Cth). This included the division of proceeds from a jointly owned property, a lump sum payment, the transfer of specific assets such as motor vehicles and personal chattels, and the allocation of liabilities. A significant issue was the division of superannuation entitlements, necessitating orders made pursuant to section 90XT of the Act.
The court's reasoning, as reflected in the orders, involved a comprehensive assessment of the parties' financial positions and contributions. The orders provided for the release of a specific sum from jointly held trust funds to the applicant, with the balance to be divided between the parties. The respondent was ordered to pay a lump sum to the applicant and transfer certain assets to her, while the applicant was ordered to transfer other assets to the respondent. Both parties were to be solely responsible for liabilities attaching to the assets they retained and for liabilities incurred since separation. Specific provisions were made for the division of the respondent's superannuation, with a base amount allocated to the applicant, and the orders were declared to finally determine the financial relationship between the parties.
Orders
Orders of the court
ORDERS – AS CORRECTED pursuant to amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001
(A) (1) That the proceeds of sale of the jointly owned property at B Street, Town C in Tasmania currently held in trust on behalf of the parties jointly ($212,119.52), be released to the applicant; and
(2) Any balance funds including accrued interest over the sum of $212,119.52 held in trust on behalf of the parties be divided as to 60% to the respondent and 40% to the applicant.
(B) That the respondent shall:
(1) Within sixty (60) days of the date of these Orders pay to the applicant a lump sum of $99,215.
(2) Transfer and/or vest all his right, title and interest in the following to applicant absolutely:
(i) The Motor Vehicle 1;
(ii) All personalty and chattels in the possession of or under the control of the applicant as at the date of these Orders;
(iii) Balances of any bank accounts or like investments in the name of or to the benefit of the applicant as at the date of these Orders; and
(iv) The applicant’s superannuation policies and entitlements.
(3) Be solely responsible for and indemnify the applicant in respect of:
(i) Any and all liabilities attaching to any of the assets retained by the respondent pursuant to these Orders and if necessary to provide the applicant with a release from any mortgage secured by any assets retained by the respondent pursuant to these Orders; and
(ii) Any and all liabilities incurred by the respondent since separation in either joint names or in his name alone.
(C) That the applicant shall:
(1) Contemporaneously with the payment referred to in paragraph (A)(1) hereof, transfer and/or vest all her right, title and interest in the following to the respondent absolutely:
(i) The property situate at D Street, Town C in Tasmania registered in the name of the respondent;
(ii) The property situate at Town E, Tasmania registered in the name of the respondent;
(iii) The respondent’s Motor Vehicle 2;
(iv) The respondent’s trailer;
(v) All personalty and chattels in the possession of or under the control of the respondent as at the date of these Orders;
(vi) The balances of any bank account or like investment in the name of or to the benefit of the respondent as at the date of these Orders;
(2) That the applicant be solely responsible for and indemnify the respondent in respect of:
(i) Any and all liabilities attaching to any asset retained by the applicant pursuant to these Orders; and
(ii) Any and all liabilities incurred by the applicant since separation in either joint names or in her name alone.
(D) That paragraphs (D)(a) to (f) (inclusive) of this Order are binding on the Trustee of Super Fund F, member No ... (“the Fund”) and it is declared that this Order is made in accordance with Section 90XT(1)(a) of the Family Law Act 1975.
(a) That pursuant to Section 90XT(4) of the Family Law Act 1975 the base amount allocated to Ms Zeidman out of the interest of the Respondent in the Fund is $44,120.84 (“the base amount”).
(b) That in accordance with Section 90XT(1)(a) of the Family Law Act 1975 whenever the Trustee of the Fund makes a splittable payment from the interest of the Respondent in the Fund Ms Zeidman shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order.
(c) That this Order have effect from the operative time and the operative time is the fourth business day after the day on which the final sealed Orders are served upon the Trustee;
(d) That until the Trustees of the Fund have effected the splittable payment in favour of Ms Zeidman pursuant to Order D(a) herein the Trustee of the said Fund, the Respondent, personal representatives and any other person or persons acting on his or their behalf be and are hereby restrained from disposing of all or any amount payable to the Applicant and/or his personal representatives received by or held in trust for the benefit of him or them;
(e) That a sealed copy of these Orders be served by the solicitors for the applicant upon the Trustees of the fund within fourteen (14) days of the date of this Order;
(f) That there be liberty to apply to each party and the Trustee of the Fund in relation to the implementation of this Order affecting the applicant’s superannuation interest.
(E) That pursuant to Section 90ST of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
IT IS NOTED that publication of this judgment under the pseudonym Zeidman & Godar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
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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