LEGAL REPRESENTATION
SUPERANNUATION – BACKGROUND
CHANGE IN HUSBAND’S SUPERANNUATION FUNDS
HEARING OF 15 SEPTEMBER 2004
ORDERS SOUGHT BY HUSBAND
ORDERS SOUGHT BY WIFE
WIFE’S OUTLINE OF ARGUMENT – ORDERS SOUGHT
AFFIDAVITS IN EVIDENCE
WRITTEN SUBMISSIONS
SHORT HISTORY
PREVIOUS ORDERS

STANDARD OF PROOF
OBSERVATION OF PARTIES AND WITNESSES

FAMILY LAW ACT 1975 (CTH), S.79 AND RELEVANT CASE LAW
SECTION 75(2) FACTORS
WIFE’S PROPERTY DEALINGS AFTER SEPTEMBER 1999
HUSBAND’S PROPERTY DEALINGS AFTER SEPTEMBER 1999

CHILDREN
CHILD SUPPORT
WIFE’S EMPLOYMENT
HUSBAND’S EMPLOYMENT
LONG SERVICE LEAVE – HUSBAND
Ms W
HUSBAND’S FUTURE RETIREMENT
ESS PLAN
EFFECT OF CEASING CONTRIBUTIONS TO ESSS
ESSS – A GENEROUS FUND
SUPERANNUATION – IS IT PROPERTY?
FAMILY LAW ACT – PART VIIIB – SUPERANNUATION SPLITTING ORDER
FAMILY LAW (SUPERANNUATION) REGULATIONS 2001
DETERMINATION OF SUPERANNUATION INTERESTS
SUPERANNUATION – AGREED FACTS
SUPERANNUATION – EXPERT WITNESS EVIDENCE
SUPERANNUATION – FURTHER ISSUES
FLAGGING ORDER
HUSBAND’S RETIREMENT – LUMP SUM OR PENSION
S.90MT – SPLITTING ORDER
SECTION 75(2)(f) AND (o) FACTORS
SECTION 22F(4) – ESSS LEGISLATION
WEST AND GREEN APPROACH
DETERMINATION BY COURT OF SECTION 90MT(2) ISSUES
CURRENT ASSETS AND LIABILITIES OF HUSBAND AND WIFE
ASSESSMENT OF CONTRIBUTION
ASSESSMENT OF SECTION 75(2) FACTORS
BASIS OF INTERIM SETTLEMENT ORDERS
ASSESSMENT IN PERCENTAGE TERMS
ASSESSMENT OF ORDERS SOUGHT BY HUSBAND
MONETARY EFFECT OF ORDER
FOURTH STEP

ORDERS

ISSUE

An interim property settlement was negotiated by the parties and their legal practitioners in proceedings before Smithers J. on 14 September 1999. Consent orders were pronounced. The outstanding issue of the husband’s superannuation entitlement and the alteration of such interest was then adjourned pursuant to s.79(5) of the Family Law Act 1975 (Cth) (“the Act”). That issue and the methodology, quantum, date and consequential form and orders of any splittable payment and the base amount to be allocated to the wife are now before the Court as part of the final determination of s.79 alteration of property.

LEGAL REPRESENTATION

When the proceedings commenced before me on the initial resumed hearing date of 15 September 2004 Mr Davis of counsel, then instructed by the firm Maria Barbayannis & Co represented the husband. That firm has now discontinued its appearance and the husband acts for himself but with Mr Davis continuing his appearance on a pro bono basis.
The wife appeared on her own behalf on 15 September 2004 but subsequently engaged solicitors, Richard Calley Pty and counsel, Mr Sweeney who appeared on her behalf at the further adjourned hearing on 30 and 31 March 2005.
I record that both Mr Davis and Mr Sweeney appeared as counsel and negotiated out of court the original interim property settlement and the adjournment of…

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 Bar & JMR (No. 2)

Details

AGLC: Bar & JMR (No. 2) [2005] FamCA 386
Case: [2005] FamCA 386
Decision Date: 19 May 2005

CaseChat Overview and Summary

The Family Court of Australia considered the dispute between a husband and wife concerning the division of their property, with a particular focus on the husband's superannuation entitlements. The proceedings involved determining the quantum and methodology for valuing the husband's defined benefit superannuation interest, specifically within the Emergency Services Superannuation Scheme (ESSS). The matter had been adjourned previously to allow for updated expert reports and to resolve uncertainties regarding the valuation of the husband's superannuation.

The court was required to determine the appropriate method for valuing the husband's defined benefit superannuation interest in the growth phase, considering the specific nature of the ESSS fund and its departure from typical private sector schemes. Further issues included the impact of the husband ceasing contributions to ESSS, his commencement of contributions to a second superannuation fund, and the wife's claims regarding the increase in value of the husband's superannuation upon his transfer to ESSS. The court also had to consider the various orders sought by both parties, ranging from a base amount allocated to the wife in the growth phase to a percentage split of the husband's lump sum benefit upon vesting.

Justice Young applied the principles of the *Family Law Act 1975* (Cth), particularly section 79 and its associated regulations concerning superannuation. The court considered expert evidence regarding the valuation of the husband's superannuation and the specific characteristics of the ESSS fund, noting that ESSS had not applied for a scheme-specific valuation method. The court rejected the wife's assertion that the increase in the husband's superannuation value upon transfer to ESSS was a "financial windfall," finding it was a consequence of a compromise between increased contribution value and a restricted pension option. The court also considered the husband's reasons for ceasing contributions to ESSS, including spousal maintenance obligations and advice from a financial planner. The court ultimately determined the appropriate orders for the division of the husband's superannuation interests.

Orders