Adair and Adair - [2016] FCCA 364

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAIR & ADAIR

[2016] FCCA 364

Catchwords:
FAMILY LAW − Division of property when husband bankrupt − whether superannuation should be valued at date of separation or of hearing − whether the proceeds of sale of boat by husband after separation should be added back.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79, 90MT(1)(a), 90MT(4)

Family Law (Superannuation) Regulations 2001 (Cth), rr.12, 13, 14F
Superannuation Industry (Supervision) Regulations 1994 (Cth), rr.7A.03, 7A.05, 7A.11

Cases cited:

Miller & Miller [2009] FamCAFC 121 at [71-72]

Applicant:

MS ADAIR

Respondent:

MR ADAIR

File Number:

DGC 1098 of 2013

Judgment of:

Judge Phipps

Hearing date:

13 July 2015

Date of Last Submission:

13 July 2015

Delivered at:

Dandenong

Delivered on:

26 February 2016

REPRESENTATION

Counsel for the Applicant:

Ms Mccreadie

Solicitors for the Applicant:

Quintessential Lawyers

The Respondent:

Appearing on their own behalf

ORDERS

That the court allocate pursuant to s.90MT(4) of the Family Law Act 1975 (Cth) a base amount of the whole of (omitted) - Personal Super Plan (“the fund”) to the applicant wife out of the respondent husband’s interest in the fund.
That this Order is binding on the Trustee.
That pursuant to s.90MT(1)(a) of the Family Law Act 1975 (Cth), wherever a splittable payment becomes payable in respect of the interest held by the respondent husband in the fund:
(a)The applicant wife is entitled to be paid, and the Trustee of the fund shall pay her, an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the “base amount” of the whole of the fund;
(b)There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders;
(c)That these Order have effect from the operative time;
(d)The operative time is the beginning of the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee;
(e)That the respondent husband is hereby restrained by himself, his servants, or agents from executing and/or giving to the Trustee of the fund, a binding death nomination in favour of any person, doing any act or thing, which would render any part , or payment, from superannuation interest in the fund a “non splittable payment” within the meaning of the r.12 or 13 of the Family Law (Superannuation) Regulations 2001 (Cth) such as would defeat the applicant’s entitlement pursuant to this Order;
(f)That the applicant, the respondent and the Trustee of the fund have liberty to apply in relation to the implementation of the Orders insofar as they relate to superannuation;
(g)That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), the applicant shall do all such things and sign all such acts and things and sign all such documents as may be necessary, included but not limited to, exercising her request pursuant to r.7A.05 of the Superannuation Industry (Supervision) Regulations 1994

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 Adair and Adair

Details

AGLC: Adair and Adair [2016] FCCA 364
Case: [2016] FCCA 364
Decision Date: 26 February 2016

CaseChat Overview and Summary

In the matter of *Adair and Adair*, heard before Judge Phipps, the dispute concerned the division of superannuation interests between a husband and wife. The applicant wife sought an allocation of the whole of the respondent husband's interest in a specific superannuation fund.

The court was required to determine how to allocate the respondent husband's superannuation interest to the applicant wife. This involved considering the provisions of the *Family Law Act 1975* (Cth) and the associated *Family Law (Superannuation) Regulations 2001* (Cth) and *Superannuation Industry (Supervision) Regulations 1994* (Cth) concerning splittable and non-splittable payments from superannuation funds.

Judge Phipps ordered that the whole of the respondent husband's interest in the specified superannuation fund be allocated to the applicant wife. The court further ordered that this allocation was binding on the Trustee of the fund. The orders detailed the mechanism for payment, specifying that splittable payments would be made to the applicant wife in accordance with the relevant regulations, with a corresponding reduction in the husband's entitlement. The court also imposed restrictions on the husband to prevent him from taking actions that would render any part of his superannuation interest a non-splittable payment, thereby defeating the wife's entitlement. The orders also provided for the operative time of the split, liberty to apply for implementation, and the necessary steps for the applicant to establish a new interest in her name within the fund.

Orders

Orders of the court

That the court allocate pursuant to s.90MT(4) of the Family Law Act 1975 (Cth) a base amount of the whole of (omitted) - Personal Super Plan (“the fund”) to the applicant wife out of the respondent husband’s interest in the fund.

That this Order is binding on the Trustee.

That pursuant to s.90MT(1)(a) of the Family Law Act 1975 (Cth), wherever a splittable payment becomes payable in respect of the interest held by the respondent husband in the fund:

(a) The applicant wife is entitled to be paid, and the Trustee of the fund shall pay her, an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the “base amount” of the whole of the fund;

(b) There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders;

(d) The operative time is the beginning of the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee;

(e) That the respondent husband is hereby restrained by himself, his servants, or agents from executing and/or giving to the Trustee of the fund, a binding death nomination in favour of any person, doing any act or thing, which would render any part , or payment, from superannuation interest in the fund a “non splittable payment” within the meaning of the r.12 or 13 of the Family Law (Superannuation) Regulations 2001 (Cth) such as would defeat the applicant’s entitlement pursuant to this Order;

(f) That the applicant, the respondent and the Trustee of the fund have liberty to apply in relation to the implementation of the Orders insofar as they relate to superannuation;

(g) That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), the applicant shall do all such things and sign all such acts and things and sign all such documents as may be necessary, included but not limited to, exercising her request pursuant to r.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in her name in the fund;

(h) That the court notes:

(i) The value of the transferrable benefits to be transferred from the respondent husbands interest to the applicant wife will be calculated by the Trustee in accordance with r.7A.11 of the Superannuation Industry (Supervision) Regulations 1994 (Cth); and

(ii) Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001 (Cth), any payments from the respondent husband’s superannuation interest in the fund made after the Trustee has created a new interest in the applicant wife’s name in the fund, as contemplated by paragraph 5 of these orders are not splittable payments.

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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