Bar and JMR - [2004] FamCA 859

[2004] FamCA 859

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE

DGF 1371 of 1998

IN THE MARRIAGE OF:

B.A.R

(Husband)
and

J.M.R

(Wife)

EX TEMPORE JUDGMENT DELIVERED BY

THE HONOURABLE JUSTICE YOUNG

Date of Hearing: 15 September 2004
Date of Judgment: 15 September 2004

Appearances: Mr Davis of counsel for the applicant husband
The respondent wife on her own behalf

The matter of R file 1371 of 1998, comes before me in the defended list of cases at Melbourne for a two‑day hearing. For the purposes of these proceedings it was agreed that the husband would be applicant, although strictly in the wider section 79 proceedings that were previously before the court the wife was then applicant. Counsel appears for the husband. The wife appears to present her own case to the court.
The specific issue in this case is as to the accuracy and applicability of Schedule 2 of the Family Law (Superannuation) Regulations 2001 in the valuing of a defined benefit interest in the growth phase. Many public sector funds have now made applications for scheme specific methods of such a valuation differing from that currently provided for within Schedule 2. Such a valuation, in accordance with current Regulations would likely produce an unjust outcome in the particular financial circumstances of this case and the way in which the issue has arisen during trial. I will now consider these matters in some detail in this extempore judgment given the orders which I have foreshadowed.
The initial application before the court is that of 23 April 2004 filed on behalf of the husband where he sought a property settlement pursuant to section 79 of the Family Law Act 1975. He submitted in respect of his current superannuation that a base amount be allocated to the wife and he was content for a separate superannuation fund then to be established by and under her sole control. The critical issue was as to the quantum to be allocated to that fund and to form the basis of a splittable payment to be made from the husband's superannuation. The husband proposed a sum of $36,000. Otherwise and in reference to that application there were various other orders concluding the property settlement before the court and notations, one of which was that the parties should acknowledge and agree that the wife, pursuant to previous orders made by Smithers J on 14 September 1999, received an additional sum of $44,800 which should be offset against the wife's claim presently before the court in relation to superannuation.
Subsequently, Counsel opened the case for the husband and he amended the dollar figure to be the splittable payment to the wife by reducing that sum to a sum of $30,667. The approach taken by counsel for the husband on instructions from his client was to have regard to the formula determined by this court West v Green (1993) FLC 92-395, a case which effectively apportioned the years of marriage as against years of 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.

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Details

AGLC: Bar and JMR [2004] FamCA 859
Case: [2004] FamCA 859
Decision Date: 15 September 2004

CaseChat Overview and Summary

The Family Court of Australia, in a matter concerning property settlement under section 79 of the Family Law Act 1975, heard an application by the husband (applicant) against the wife (respondent). The central dispute revolved around the accurate valuation of the husband's defined benefit superannuation interest in its growth phase, with the wife appearing on her own behalf and counsel representing the husband. The proceedings were brought to a halt during the hearing to allow for further consideration of the valuation methodology.

The court was required to determine the just and equitable alteration of property interests between the parties, with a particular focus on the valuation of the husband's defined benefit superannuation. This involved assessing the applicability and accuracy of Schedule 2 of the Family Law (Superannuation) Regulations 2001, which prescribes a method for such valuations, and considering whether this method produced a fair outcome in the specific circumstances of the case, especially given potential issues with public sector funds. The court also had to consider the impact of a previous consent order made in 1999, which adjourned the determination of superannuation interests.

Justice Young reasoned that while the Family Law (Superannuation) Regulations 2001 are binding, the expert evidence presented, particularly from Mr W, indicated significant difficulties and potential inaccuracies in applying Schedule 2 to public sector defined benefit funds in the growth phase. The court noted that the Attorney-General's Department and the Family Court itself had acknowledged these limitations, with various public sector funds, including the Emergency Services Superannuation Scheme (ESSS), having lodged applications for scheme-specific valuation methodologies. Given these concerns about the accuracy and fairness of the current valuation method, and the wife's application for an adjournment pending a more appropriate valuation, the court determined that it could not proceed to a final determination without further evidence.

Consequently, the court ordered that the further hearing of all extant applications be adjourned, with the matter to remain part-heard before Justice Young and not to be relisted before 1 May 2005, unless an earlier date was determined by the Court upon application. The parties were directed to obtain an updated expert report from Mr W regarding the valuation of the husband's superannuation entitlement at a time when he considered it appropriate to do so. Additionally, the wife was ordered to pay the husband $300, representing 50% of Mr W's agreed fee for his past reports.

Orders