BAGNOLD & BAGNOLD - [2012] FMCAfam 1215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAGNOLD & BAGNOLD

[2012] FMCAfam 1215

FAMILY LAW – Property – relationship of nearly 19 years – asset pools – add back money disposed of by one party – contributions – subsection 75(2) factors.

Family Law Act1975 (Cth) ss.75, 79, 117B
Family Law (Superannuation) Regulations 2001 (Cth) Part 6

Bigelow & Reuter [2006] FamCA 1455
Clauson (1995) FLC 92-595
C & C (2005) FLC 93-220
Ferraro (1993) FLC 92-335
Hickey (2003) FLC 93-143
Lee Steere (1985) FLC 91-626
Mallet v Mallet (1984) FLC 91-507
Pierce v Pierce (1999) FLC 92-844
Rolfe and Rolfe (1979) FLC 90-62
Russell v Russell(1999) FLC 92-877
Townsend and Townsend (1995) FLC 92-569

Applicant:

MS BAGNOLD

Respondent:

MR BAGNOLD

File Number:

MLC 11267 of 2011

Judgment of:

Roberts FM

Hearing date:

17 September 2012

Date of Last Submission:

17 September 2012

Delivered at:

Melbourne

Delivered on:

18 September 2012

REPRESENTATION

Counsel for the Applicant:

Mr D Staindl

Solicitors for the Applicant:

Frank Randle

Counsel for the Respondent:

Not represented by counsel

Solicitors for the Respondent:

Not applicable

ORDERS

That in accordance with s.90MT(1)(a) of the Family Law Act1975 (the “Act”) whenever a splittable payment within the meaning of s.90ME of the Act becomes payable to or on behalf of MR BAGNOLD (“the husband”) from his interest in the [A] Superannuation Fund, MS BAGNOLD (“the wife”) is entitled to be paid by the Trustee of the [A] Superannuation Fund the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $33,000.00 and there is a corresponding reduction in the entitlement the husband would have had but for these orders.
That the operative time for Order No. 1 hereof is four business days after the service of these orders on the Trustee of the [A] Superannuation Fund.
That on or before 19 December 2012 the husband must discharge the mortgage currently registered in the name of the husband and the wife, over the property currently registered in the name of the husband and situated at [M], in the State of Victoria (“the property”).
That the husband must indemnify the wife, and keep her indemnified in respect to all payments and liabilities pursuant to the mortgage currently registered in the name of the husband and the wife over the property.
That the husband must pay to the wife the sum of $70,200.00 (“the required sum”) by 19 November 2012.
That interest is payable by the husband to the wife upon the required sum or any part that remains unpaid beyond 19 November 2012 at a rate two percent greater than the rate provide for in the applicable rules of court pursuant to section 117B of the Act.
That in the event that the husband does not pay the required sum or any part thereof by 19 November 2012 he must pay to the wife any amount outstanding (inclusive of interest) by instalments at the rate of $2,000.00 per month payable…

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 BAGNOLD & BAGNOLD

Details

AGLC: BAGNOLD & BAGNOLD [2012] FMCAfam 1215
Case: [2012] FMCAfam 1215
Decision Date: 18 September 2012

CaseChat Overview and Summary

In the Family Court of Australia, the matter of BAGNOLD & BAGNOLD involved a dispute between MR BAGNOLD, the husband, and MS BAGNOLD, the wife, concerning the division of superannuation assets. The central issue was the enforcement of financial orders derived from the husband's superannuation fund and other related obligations. The court was tasked with determining the exact nature and quantum of payments to be made by the husband to the wife, as well as other ancillary orders related to property and financial liabilities.

The legal issues before the court included the interpretation of specific sections of the Family Law Act 1975, particularly sections 90MT and 90ME, and their interaction with the Family Law (Superannuation) Regulations 2001. The court had to establish how much of the husband’s superannuation the wife was entitled to receive, the calculation method, and the timeline for these payments. Additionally, the court addressed the husband's obligation to discharge a mortgage over a property and indemnify the wife for related liabilities. The court also considered the husband’s requirement to make a lump sum payment and subsequent instalments, alongside the calculation of interest on any outstanding amounts.

In its reasoning, the court meticulously applied the statutory provisions and regulations to arrive at its decisions. It determined that the wife was entitled to a specific percentage of the husband’s superannuation, calculated using a base amount of $33,000.00, and outlined the precise method for these calculations. The court mandated that the payments must be executed within a strict timeframe, with the operative date set for four business days post-service of the orders. The husband was also required to discharge the mortgage over the property and indemnify the wife for related liabilities. Furthermore, the court ordered a lump sum payment of $70,200.00 by a specified date, with additional interest and instalment provisions if the payment was not met in full. The court also set out detailed terms for any default in instalment payments and ordered the husband to cover the wife's costs related to the investigation of his superannuation entitlements.

The final orders reflect the court's decisions, requiring the husband to make superannuation payments to the wife, discharge a mortgage, indemnify her for related liabilities, and pay a specified lump sum by a given date. In the event of non-compliance, the husband must make monthly instalments. The court also outlined procedures for defaulting on instalment payments and set the costs of the investigation. All other pending applications were dismissed.

Orders

Orders of the court

That in accordance with s.90MT(1)(a) of the Family Law Act 1975 (the “Act”) whenever a splittable payment within the meaning of s.90ME of the Act becomes payable to or on behalf of MR BAGNOLD (“the husband”) from his interest in the [A] Superannuation Fund, MS BAGNOLD (“the wife”) is entitled to be paid by the Trustee of the [A] Superannuation Fund the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $33,000.00 and there is a corresponding reduction in the entitlement the husband would have had but for these orders.

That the operative time for Order No. 1 hereof is four business days after the service of these orders on the Trustee of the [A] Superannuation Fund.

That on or before 19 December 2012 the husband must discharge the mortgage currently registered in the name of the husband and the wife, over the property currently registered in the name of the husband and situated at [M], in the State of Victoria (“the property”).

That the husband must indemnify the wife, and keep her indemnified in respect to all payments and liabilities pursuant to the mortgage currently registered in the name of the husband and the wife over the property.

That the husband must pay to the wife the sum of $70,200.00 (“the required sum”) by 19 November 2012.

That interest is payable by the husband to the wife upon the required sum or any part that remains unpaid beyond 19 November 2012 at a rate two percent greater than the rate provide for in the applicable rules of court pursuant to section 117B of the Act.

That in the event that the husband does not pay the required sum or any part thereof by 19 November 2012 he must pay to the wife any amount outstanding (inclusive of interest) by instalments at the rate of $2,000.00 per month payable on the first day each month commencing on 1 December 2012 and continuing on the first day of each month thereafter until the required sum and any applicable interest has been paid.

That in the event that any instalment provided for in Order No. 7 hereof remains unpaid by the eighth day of the relevant month, the entire unpaid balance of the required sum together with any applicable interest will immediately become due and payable by the husband to the wife.

That the parties must do all acts and execute all documents that may be reasonably necessary to implement these orders.

10.

That the parties have liberty to apply in relation to the implementation of these orders.

11.

That on or before 19 October 2012 the husband must pay the wife’s costs of and incidental to the investigation of the husband’s superannuation entitlements, fixed in the sum of $2,500.00.

12.

That all extant 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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