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Amos & Louis

Amos & Louis

Case [2022] FedCFamC2F 1074 29 August 2022

Property Settlement

Superannuation Splitting

Adjustment of Property Interests

Contributions

Costs

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Amos & Louis [2022] FedCFamC2F 1074

File number: PAC 1584 of 2020

Judgment of: JUDGE MURDOCH

Date of judgment: 29 August 2022

Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Where the wife seeks significant notional add backs to the property pool – Where such add backs are rejected – Where it is just and equitable to make an adjustment – Where the husband was hurt on duty and medically discharged from the Employer O – Where the husband is currently receiving his superannuation entitlements as a defined benefit pension and seeks that such benefits be excluded from the asset pool – Where the husband commuted part of his superannuation entitlements in breach of an injunctive Order – Where a two-pool approach is appropriate – Consideration of the adjustment to be made – Where the wife has been and continues to be the primary carer for the children – Where an adjustment is made in favour of the wife for future needs.

Legislation:
Family Law Act 1975 (Cth) Pt VIIIB, ss 4, 75, 79

Federal Circuit and Family Court of Australia Act2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 11.1

Family Law (Superannuation) Regulations 2001 (Cth) reg 43A

Cases cited:
Aleksovski v Aleksovski [1996] FamCA 111

NHC v RCH (2004) FLC 93-204; [2004] FamCA 633

C v C (2005) FLC 93-220; [2005] FamCA 429

Edgehill & Edgehill [2007] FamCA 1102

Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57

Gollings & Scott (2007) FLC 93-319; [2007] FamCA 397

Griffiths v Kerkemeyer [1977] HCA 45

Horrigan & Horrigan [2020] FamCAFC 25

Jones v Skinner (1835) 5 LJ Ch 87

Kowaliw and Kowaliw (1981) FLC 91-092

Norbis v Norbis (1986) FLC 91-712; [1986] HCA 17

AJO & GRO (2005) FLC 93-218; [2005] FamCA 195

Perrett and Perrett (1990) FLC 92-101

Perrin & Perrin (No 2) [2018] FamCAFC 122

Schmidt & Schmidt [2009] FamCA 1386

Stanford & Stanford (2012) FLC 93-518; [2012] HCA 52

Surridge & Surridge (2017) 57 Fam LR 267; [2017] FamCAFC 10

T & T (2006) FLC 93-263; [2006] FamCA 207

Townsend & Townsend (1995) 92-569

Trevi & Trevi [2018] FamCAFC 173

Weir & Weir (1993) FLC 92-338

Division: Division 2 Family Law

Number of paragraphs: 213

Date of hearing: 16, 17, 18 May 2022

Place: Parramatta

Counsel for the Applicant: Ms Stenmark SC

Solicitor for the Applicant: Thornton Storgato Law Pty Ltd

Solicitor for the Respondent: Mr Brown

Table of Corrections

13 April 2023 Paragraph numbering of 86 and 87 which appeared twice has now been amended so that the paragraph numbers are in the correct ascending order and the paragraph numbering on the coversheet and in the certification has been amended accordingly.

ORDERS

PAC 1584 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS AMOS

Applicant

AND:
MR LOUIS

Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

29 AUGUST 2022

THE COURT ORDERS BY CONSENT…

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 Amos & Louis

Details

AGLC: Amos & Louis [2022] FedCFamC2F 1074
Case: [2022] FedCFamC2F 1074
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Amos and Louis were involved in a property settlement dispute following the breakdown of their marriage. The wife sought significant notional add backs to the property pool, which were rejected by the court. However, the court found it just and equitable to make an adjustment in the wife's favour. The husband, who was medically discharged from his employer, was receiving his superannuation entitlements as a defined benefit pension and sought to exclude these benefits from the asset pool. The husband had also commuted part of his superannuation entitlements in breach of an injunctive order. The court considered a two-pool approach appropriate and made an adjustment in favour of the wife for her future needs, as she had been the primary carer for the children. The final orders included the establishment of a bank account for the benefit of the child, transfer of specific properties and shareholdings, payment of a cash sum, and declaration of ownership of certain items.

Orders