Astley and Astley - [2015] FCCA 3554

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASTLEY & ASTLEY

[2015] FCCA 3554

Catchwords:
FAMILY LAW – Property proceedings.

Legislation:

Family Law Act1975 ss.75, 79

Cases cited:
Omacini & Omacini (2005) FLC 93-218
Kowaliw (1981) FLC 91-092
Bevan & Bevan (2013) FLC 93-545
Bevan & Bevan [2013] FamCAFC 116
Vass & Vass [2015] FamCAFC 51
Stanford & Stanford (2012) 293 ALR 1970
Hickey & Hickey (2003) FLC 93-143
Russell & Russell (1999) FamCA 1875, (1999) FLC 92-877
McLusky & McLusky [2014] FamCA 93
Todd & Todd [2014] FamCA 101
Adamson & Adamson (2014) FCCA 73
Whinton & Whinton and Ors (2014) FamCA 102

Applicant:

MR ASTLEY

Respondent:

MS ASTLEY

File Number:

NCC 755 of 2011

Judgment of:

Judge Myers

Hearing dates:

11 February 2014, 24 September 2014, 25 September 2014, 26 September 2014 & 13 February 2015

Date of Last Submission:

12 May 2015

Delivered at:

Newcastle

Delivered on:

17 November 2015

REPRESENTATION

Solicitors for the Applicant:

Cunningham & Adam

Solicitors for the Respondent:

Rowlandson & Co Solicitors

THE COURT ORDERS THAT:

All previous orders of the court in respect of property be discharged.
Within 42 days the wife do all acts and things and sign all documents necessary to transfer to the husband her right title and interest in the property situated at and known as Property R.
Simultaneous with the transfer of the wife’s interest in the Property R property to the husband the husband pay to the wife the sum of $195,333.00 and do all acts and things and sign all documents necessary to refinance the loan with (omitted) secured by way of first registered mortgage over the said Property R property so as to remove the wife as borrower or guarantor in respect of the said loan.
The wife do all acts and things and sign all documents necessary so as to resign as appointor or beneficiary of either of the Astley Family Trust or Astley Family Trust No. 2 including resigning as director of corporate entity that is trustee of the said trusts.
Within 14 days the husband cause to be delivered to the wife the (omitted) Camper Trailer and Catamaran as she directs and transfer to the wife all of the husbands interest in the Toyota Land Cruiser Motor Vehicle registration number (omitted).
A base amount of $61,196.00 is allocated as required by s.90MT(4) of the Family Law Act 1975 to the respondent out of the applicant’s interest in the (omitted) Super Fund, Member No. (omitted) (“the Fund”).
6.1Orders 6 to 9 of these orders are binding on the trustee of the Fund;
6.2In accordance with paragraph 90MT(1)(A) Family Law Act 1975:
6.2.1The respondent is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
6.2.2The applicant’s entitlement and the entitlement of such other person to whom a splittable payment may be made to payments out of the applicant’s interest in the Fund is correspondingly reduced.
The trustee of the Fund (“the trustee”)…

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 Astley and Astley

Details

AGLC: Astley and Astley [2015] FCCA 3554
Case: [2015] FCCA 3554
Decision Date: 17 November 2015

CaseChat Overview and Summary

This matter concerned property adjustment orders made by Judge Myers in the Federal Circuit Court of Australia. The proceedings involved the parties, identified as the applicant and the respondent, in a dispute concerning the division of their marital assets and liabilities.

The court was required to determine the appropriate distribution of various assets, including real property, a motor vehicle, a camper trailer, a catamaran, and interests in a superannuation fund. The orders also addressed the parties' respective interests in family trusts and the refinancing of a loan secured against a property.

Judge Myers reasoned that the orders were necessary to achieve a just and equitable division of the parties' property interests. The court applied principles of property adjustment under the *Family Law Act 1975*, including specific provisions relating to superannuation splitting under s.90MT and related regulations. The orders provided for the transfer of property, payment of a sum of money, and the division of superannuation entitlements, with provisions for enforcement by a registrar if a party failed to comply.

Orders

Orders of the court

All previous orders of the court in respect of property be discharged.

Within 42 days the wife do all acts and things and sign all documents necessary to transfer to the husband her right title and interest in the property situated at and known as Property R.

Simultaneous with the transfer of the wife’s interest in the Property R property to the husband the husband pay to the wife the sum of $195,333.00 and do all acts and things and sign all documents necessary to refinance the loan with (omitted) secured by way of first registered mortgage over the said Property R property so as to remove the wife as borrower or guarantor in respect of the said loan.

The wife do all acts and things and sign all documents necessary so as to resign as appointor or beneficiary of either of the Astley Family Trust or Astley Family Trust No. 2 including resigning as director of corporate entity that is trustee of the said trusts.

Within 14 days the husband cause to be delivered to the wife the (omitted) Camper Trailer and Catamaran as she directs and transfer to the wife all of the husbands interest in the Toyota Land Cruiser Motor Vehicle registration number (omitted).

A base amount of $61,196.00 is allocated as required by s.90MT(4) of the Family Law Act 1975 to the respondent out of the applicant’s interest in the (omitted) Super Fund, Member No. (omitted) (“the Fund”).

6.1 Orders 6 to 9 of these orders are binding on the trustee of the Fund;

6.2 In accordance with paragraph 90MT(1)(A) Family Law Act 1975:

6.2.1 The respondent is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

6.2.2 The applicant’s entitlement and the entitlement of such other person to whom a splittable payment may be made to payments out of the applicant’s interest in the Fund is correspondingly reduced.

The trustee of the Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

7.1 Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement for the respondent created by Order 6 of these orders; and

7.2 Pay the entitlement whenever the trustee makes a splittable payment out of the applicant’s interest in the Fund.

These orders have effect from the operative time and the operative time is four (4) business days after service of these orders on the trustee.

After service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 the respondent do all such things and sign all such documents as may be necessary including but not limited to exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the applicant’s interest in the Fund to a fund of the respondent’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

10.

Otherwise as provided for in these orders each party be declared to be the sole beneficial owner of all monies in bank accounts, motor vehicles, shares in public or private companies, chattels, superannuation insurance policies, furniture and furnishings and the like that stand in that parties name or that are in that parties possession as at the date of these orders.

11.

Pursuant to section 106A of the Family Law Act 1975 should either party neglect or refuse to sign any deed, document, instrument or real property transfer necessary to give effect to these orders within seven (7) days of a written request to do so a registrar of the Federal Circuit Court of Australia, Newcastle Registry is appointed to execute such deed, document, instrument or real property transfer.

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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