FAMILY COURT OF AUSTRALIA
| ZISKA & ZISKA | [2013] FamCA 789 |
| FAMILY LAW – PROPERTY SETTLEMENT – Where the husband and wife to a marriage of 36 years seek orders altering their interests in property under s 79 of the Family Law Act 1975 (Cth) (“the Act”) – Assessment of what constitutes the property of the parties or either of them – Consideration of whether it is just and equitable to make an order altering the parties’ interests in property in accordance with the principles expressed in Stanford v Stanford [2012] HCA 52 – Determination of the respective contributions of the parties’ by reference to the matters set out in s 79(4) of the Act – Consideration of whether an adjustment should be made to the contribution-based finding by reference to relevant matters under s 75(2) of the Act – Consideration of whether the orders to be made will produce a just and equitable result overall. |
FAMILY LAW – PROPERTY – SUPERANNUATION – Whether to include the parties’ superannuation interests in the same pool of assets as other property or in a separate pool – Where the court determined that it would consider the parties’ superannuation interests and property in the same pool
FAMILY LAW – SPOUSE MAINTENANCE – Where the wife seeks an order for spouse maintenance on a periodic basis or in the alternative as a lump sum payment of $200,000 – Where the threshold finding under s 72 was satisfied because the wife is unable to support herself adequately and the husband is able to support the wife – Consideration of how the property settlement orders to be made under s 79 will affect the wife’s need for maintenance – Discussion of the wife’s ability to generate income through the capital value of the assets she will receive following the property settlement – Assessment of the quantum of maintenance that would be “proper” in accordance with s 74 of the Act – Consideration of the form that spouse maintenance orders may take pursuant to s 80 of the Act – Where the orders made allow for the husband to elect whether to pay maintenance on a periodic or a lump sum basis.
| Family Law Act 1975 (Cth) |
| Benjamin & Bardot [2010] FamCAFC 252 |
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- AGLC
- Ziska and Ziska [2013] FamCA 789
- Case
- [2013] FamCA 789
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of each party's entitlement to the matrimonial assets and liabilities, and to make orders for the transfer of property, the discharge of liabilities, and the payment of spousal maintenance. Specific issues included the division of shares in Ziska Pty Ltd, the allocation of two properties located at Suburb B and Suburb D, the distribution of funds in a St George bank account, and the division of superannuation interests held by both parties, including the husband's interest in the State Authorities Non-contributory Superannuation Scheme. The court also had to address the husband's obligation to pay spousal maintenance to the wife, either periodically or as a lump sum.
The court made a series of orders, many of which were consented to by the parties. These orders included the transfer of the wife's shares in Ziska Pty Ltd to the husband, her resignation as a director, and her removal as a signatory on company accounts, with the husband indemnifying her for any liabilities arising from her former involvement. The husband was ordered to transfer his interest in the Suburb B property to the wife, while he was declared the sole owner of the Suburb D property. The St George bank account was to be distributed with the wife receiving 77.42 per cent. Significant orders were made regarding superannuation, including a splittable payment order from the husband's SANCS Fund to the wife, and provisions for the wife to roll over her interest in the Ziska Pty Ltd Superannuation Fund. The husband was ordered to pay spousal maintenance of $500 per week for three years, or a lump sum of $70,000 within 90 days as an alternative. The wife was declared the owner of her motor vehicle, while the husband was to take ownership of two St George accounts. Finally, the court declared that, apart from the specific orders made, each party was the legal and beneficial owner of all other property and financial entitlements in their name, and each was responsible for their own debts and liabilities. All outstanding applications were dismissed.
Orders
Orders of the court
(1) With the exception of order 7 (sub-order 15) made in the Federal Magistrates Court on 12 October 2011 all prior orders are discharged to the date they stand paid.
Orders consented to by the parties.
(2) Within fourteen (14) days of these Orders, the Wife transfer her shares in Ziska Pty Ltd (the company) to the Husband.
(3) Within fourteen (14) days of the date of the Orders the Wife resign as a Director of the company and any other position held.
(4) Within fourteen (14) days of the date of the Orders the Wife sign all documents necessary to remove herself as a signatory and authorised person to act and operate the account held by the company with St George Bank account no. … and any other documents relating to the company.
(5) The husband indemnify the Wife for her liability in the loan accounts with the company and any other liability she has to the company and any other liability arising in her as a result of her shareholding or office holding in the company.
Orders made at the determination of the court
Suburb B property
(6) Within fourteen (14) days the Husband sign all documents presented to him by or on behalf of the wife as may be necessary to transfer to the Wife the whole of his right title and interest in the property situated at and known as C Street, Suburb B, NSW being the whole of the land contained in Certificate of Title folio identifier … (“Suburb B Property”).
Suburb D Property
(7) The Husband is declared to be solely and absolutely entitled, to the exclusion of the wife, to the property at E Street, Suburb D in the state of New South Wales subject to the Husband’s NAB loan secured on that property.
(8) The parties are to cause the balance of the St George Account … account and any interest accrued thereon, to be distributed so that the wife receives 77.42 per cent of same and the husband receives the balance.
Superannuation
(9) In accordance with s90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable to or on behalf of the Husband, Mr Ziska, from his interest in State Authorities Non-contributory Superannuation Scheme (“the SANCS Fund”) the Wife, Ms Ziska, is entitled to be paid by the Trustee of the Fund the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $173,429 there being a corresponding reduction in the entitlement the Husband, Mr Ziska, would have had in the said Superannuation Fund but for these Orders.
(10) Order (9) herein binds the Trustee of the Fund and the Order takes effect from the operative time being the seventh business day after the date of service of these Orders on the Trustee.
(11) The Wife is to retain all of her right title an interest in her existing member's account in the Ziska Pty Ltd Superannuation Fund (Ziska Superannuation Fund) and the Husband is to call all necessary meetings of the trustee of the Ziska Superannuation Fund and cause the trustee to pass all such resolutions and do all acts as are necessary by law to facilitate the rollover or transfer of the Wife’s existing interest in the Ziska Superannuation Fund to another complying fund, nominated by the Wife, as soon as practicable.
(12) The Wife is to nominate to the Husband within 28 days the name of a complying superannuation fund into which she requires her entitlement in the Ziska Superannuation Fund to be rolled into pursuant to order (11) hereof.
(13) In the event that either the Husband or Wife refuses or neglects to execute any document, deed or instrument required to give effect to these orders within fourteen (14) days after service of the document upon him or her, the Registrar of the Court is appointed and is empowered and authorized to execute any such document, deed or instrument in his or her name and to do all acts necessary to give validity and effect to such document, deed or instrument.
Spouse Maintenance.
(14) Subject to the order following immediately hereunder, the Husband is to pay spouse maintenance to the Wife in the sum of $500 per week until the expiration of three (3) years from the date hereof.
(15) As an alternative to the payment of periodic spouse maintenance, as provided for in the previous order, the Husband may, at his option, pay to the Wife within 90 days from the date hereof the sum of $70,000 as lump sum spouse maintenance. Until such payment is made the Husband is to meet the periodic maintenance order specified above.
Wife’s Motor Vehicle
(16) The Wife is declared to be the legal and beneficial owner of the … motor vehicle Registration No. ....
(17) The Husband is to be the owner of St George joint account … (being the account of Ziska) and St George Freedom account ... The Wife is to forthwith sign all documents presented to her by the Husband as will effect transfer of those two accounts to his name solely or alternately close the accounts (should he so desire) and pay the funds therein to the Husband.
(18) Other than as provided in these Orders and as between the parties, the Husband and Wife each be declared to be the legal and beneficial owners of all other property and all other financial entitlements (not hereinbefore provided for) in their names, possession or under their control or to which each party is presently legally or beneficially entitled including furniture and furnishings, monies in bank accounts, real estate, motor vehicles, shares, superannuation entitlements and insurance policies.
(19) Other than as provided in these Orders, and as between the parties, the Husband and Wife each be responsible for payment of all debts and liabilities standing in their name and indemnify the other in respect thereof.
(20) The payments made to the Wife pursuant to the orders of 17 April 2012 providing for her withdrawal of $800 per week from the St George account number … are designated as to one half as spouse maintenance from the Husband to the Wife. Further the requirement in those orders for the Husband to pay to the Wife $2000 is designated as spouse maintenance.
(21) All outstanding applications are otherwise dismissed.
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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