BALZANO & BALZANO - [2014] FCCA 615

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALZANO & BALZANO

[2014] FCCA 615

Catchwords:
FAMILY LAW – Property – parties were married nearly 40 years and are now both retired and have health issues – husband has [E] superannuation pension and seeks that this entitlement be dealt with separately to the parties other assets and that he retain his superannuation in its entirety – wife seeks that the husband’s superannuation be included in the asset pool and there be an equal division of the parties’ assets to include a splitting order in relation to the husband’s superannuation – held: as the husband’s superannuation can be commuted to a known lump sum that it be included in the parties’ total assets – held: given the parties long marriage and their age it is just and equitable that there be an equal division of the parties assets, such assets to include the husband’s superannuation at its known lump sum value.

Legislation:

Family Law Act 1975, ss.79, 75(2)

C v C (2005) FLC 93-220
Craig v Rowlands [2013] FamCAFC 45

T v T (2006) FLC 93-263
Treloar v Treloar (No 2) [2007] FamCA 1127
Edwards v Edwards [2009] FamCAFC 139
Guthrie v Rushton [2009] FamCA 1144
Winn v Winn [2011] FamCA 501
Craig v Rowlands [2013] FamCAFC 45

Pierce v Pierce (1999) FLC 92-844
Kardos v Sarbutt (2006) 34 Fam LR550
Williams v Williams [2007] FamCA 313

Applicant:

MR BALZANO

Respondent:

MS BALZANO

File Number:

MLC 190 of 2013

Judgment of:

Judge Bender

Hearing date:

29 January 2014

Date of Last Submission:

29 January 2014

Delivered at:

Melbourne

Delivered on:

3 April 2014

REPRESENTATION

Counsel for the Applicant:

Ms Tulloch

Solicitors for the Applicant:

JA Middlemis

Counsel for the Respondent:

Ms Howe

Solicitors for the Respondent:

Heinz & Partners

THE COURT ORDERS THAT:

The matter be adjourned to 5 May 2014 at 9.30am for mention.
On or before the 17 April 2014 the husband shall advise the wife’s solicitors in writing the manner in which he proposes the wife receive an equal share of the parties’ assets.
In the event the husband fails to comply with order 2 herein or the parties are unable to agree as to the manner in which an equal division of the parties assets is to be effected on the adjourned date the Court shall make such orders it considers necessary to give effect to the decision delivered this day.

AND THE COURTS NOTES THAT:

A.The Court having determined that the parties’ assets, including the husband’s superannuation be divided equally between the parties and that in order for the husband to retain the former matrimonial home and all other assets in his control or possession including his superannuation, the husband shall pay the wife the sum of $263,789.50, the matter is adjourned to enable the husband to determine the manner in which such payment is to be made to the wife and the percentage split of his superannuation required to achieve such division and to afford the husband’s superannuation…

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 BALZANO & BALZANO

Details

AGLC: BALZANO & BALZANO [2014] FCCA 615
Case: [2014] FCCA 615
Decision Date: 3 April 2014

CaseChat Overview and Summary

In the matter of *Balzano & Balzano*, Judge Bender considered a dispute between a husband and wife, married for nearly 40 years and both retired with health issues. The central disagreement concerned the husband's [E] superannuation pension. The husband sought to have this entitlement treated separately and retained by him in its entirety, while the wife contended that the superannuation should be included in the asset pool for an equal division of all marital assets, including a splitting order for the superannuation.

The court was required to determine whether the husband's superannuation, which could be commuted to a known lump sum, should be included in the parties' total assets for division. Furthermore, the court had to decide whether, given the long duration of the marriage and the parties' ages, an equal division of all assets, including the husband's superannuation, was just and equitable.

Judge Bender reasoned that because the husband's superannuation could be converted into a definite lump sum, it was appropriate to include it within the overall asset pool. The court found that, in light of the parties' long marriage and their retired status with health concerns, an equal division of all assets was just and equitable. This equal division was to encompass the husband's superannuation valued at its known lump sum amount.

The court ordered that the matter be adjourned to allow the husband to propose a method for the wife to receive her equal share of the assets. Specifically, the husband was to advise the wife's solicitors in writing on how he proposed the wife receive her equal share, and in the event of non-compliance or disagreement, the court would make necessary orders. The court noted that the husband would need to pay the wife $263,789.50 to achieve an equal division, allowing him to retain the former matrimonial home and other assets, including his superannuation. This payment arrangement and the required superannuation split were to be finalised, with procedural fairness afforded to the superannuation fund.

Orders

Orders of the court

1. The matter be adjourned to 5 May 2014 at 9.30am for mention.

2. On or before the 17 April 2014 the husband shall advise the wife’s solicitors in writing the manner in which he proposes the wife receive an equal share of the parties’ assets.

3. In the event the husband fails to comply with order 2 herein or the parties are unable to agree as to the manner in which an equal division of the parties assets is to be effected on the adjourned date the Court shall make such orders it considers necessary to give effect to the decision delivered this day.

AND THE COURTS NOTES THAT:

A. The Court having determined that the parties’ assets, including the husband’s superannuation be divided equally between the parties and that in order for the husband to retain the former matrimonial home and all other assets in his control or possession including his superannuation, the husband shall pay the wife the sum of $263,789.50, the matter is adjourned to enable the husband to determine the manner in which such payment is to be made to the wife and the percentage split of his superannuation required to achieve such division and to afford the husband’s superannuation fund procedural fairness.

B. In the event the parties are able to provide the Chambers of Judge Bender with an agreed minute and proof of procedural fairness prior to the adjourned date, orders will be made in Chambers and the adjourned date vacated.

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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