BARNARD & WELSBY - [2020] FCCA 1721

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARNARD & WELSBY

[2020] FCCA 1721

Catchwords:
FAMILY LAW – Property – final orders – where modest asset pool – where principal assets are parties’ superannuation and pension entitlements – where just and equitable to make a property order – where assessment of contributions in favour of wife – where adjustment made for service of joint debt.

FAMILY LAW – Spousal maintenance – final orders sought – where wife demonstrates a need – where husband asserts inability to pay – where Court finds husband has ability to pay – where duration of payments capped at four years – where parties seek coverage of health insurance for the wife on husband’s family plan – where order made providing for husband to be responsible for costs incurred for wife’s health expenditure where health insurer may exclude wife from family health insurance plan.

FAMILY LAW – Costs – where costs of bifurcated property and spousal maintenance sought by wife – where Court declines to decide the costs application as proceedings with final parenting orders still on foot.

Legislation:

Child Support (Assessment) Act 1989 (Cth) ss.116, 145

Family Law Act 1975 (Cth), ss.62G, 72, 74, 75, 79, 79A, 90XT, 106A, 117

Federal Circuit Court Rules 2001 (Cth) r 25A.07

Cases cited:

In the Marriage of Harris (1991) 104 FLR 458
In the Marriage of Bevan (1993) 120 FLR 283
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395
Stanford & Stanford (2012) 247 CLR 108
Dickons & Dickons [2012] FamCAFC 154
Fields & Smith [2015] FamCAFC 57
Hall & Hall (2016) 257 CLR 490
Grier & Malphas (2017) 55 Fam LR 107
Holland & Holland [2017] FamCAFC 266
Fontana & Fontana [2018] FamCAFC 63
Jabour & Jabour [2019] FamCAFC 78

Applicant:

MR BARNARD

Respondent:

MS WELSBY

File Number:

SYC 8110 of 2016

Judgment of:

Judge Morley

Hearing date:

15 July 2019

Date of Last Submission:

15 July 2019

Delivered at:

Sydney

Delivered on:

1 July 2020

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

That in relation to the property settlement proceedings between MR BARNARD born in 1974 (‘the Husband’) and MS WELSBY born in 1979 (‘the Wife’), the Court makes an order under section 79 of the Family Law Act 1975 (Cth) as follows:
(a)That a base amount of $59,893.40 is allocated, as required by section 90XT(4) of the Family Law Act 1975 (Cth), to the Wife out of the Husband’s interest in the Super Fund B superannuation fund.
(b)That, in accordance with paragraph 90XT(1)(a) of the Family Law Act 1975 (Cth):
(i)The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(ii)The Husband’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to payments out of the Husband’s interest in the Super Fund B superannuation fund, is correspondingly reduced.
(c)The trustee of the Super Fund B 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 BARNARD & WELSBY

Details

AGLC: BARNARD & WELSBY [2020] FCCA 1721
Case: [2020] FCCA 1721
Decision Date: 1 July 2020

CaseChat Overview and Summary

In the Family Court of Australia, Judge Morley considered property settlement and spousal maintenance proceedings between Mr Barnard and Ms Welsby. The dispute involved a modest asset pool, with the principal assets being the parties' superannuation and pension entitlements. The wife sought final property orders and spousal maintenance, while the husband asserted an inability to pay maintenance. The court also noted that final parenting orders were still pending.

The court was required to determine whether it was just and equitable to make a property order, and if so, how the parties' assets, particularly their superannuation interests, should be divided. Additionally, the court had to assess the wife's demonstrated need for spousal maintenance against the husband's asserted inability to pay, and consider the duration and terms of any spousal maintenance order. The parties also sought orders regarding health insurance coverage for the wife.

Judge Morley found it just and equitable to make a property order, assessing contributions in favour of the wife and making an adjustment for the service of a joint debt. The court ordered a specific base amount to be allocated from the husband's superannuation fund to the wife, with the trustee directed to facilitate the calculation and payment of this entitlement. Regarding spousal maintenance, the court found the husband had the ability to pay, ordering weekly payments capped at four years, with an annual CPI variation. The court also ordered the husband to maintain health insurance for the wife on his family plan and to be responsible for any unrecoverable health expenditure costs if the wife was excluded from benefits due to their relationship status. The application for costs was declined, pending the finalisation of parenting orders.

Orders

Orders of the court

That in relation to the property settlement proceedings between MR BARNARD born in 1974 (‘the Husband’) and MS WELSBY born in 1979 (‘the Wife’), the Court makes an order under section 79 of the Family Law Act 1975 (Cth) as follows:

(a) That a base amount of $59,893.40 is allocated, as required by section 90XT(4) of the Family Law Act 1975 (Cth), to the Wife out of the Husband’s interest in the Super Fund B superannuation fund.

(b) That, in accordance with paragraph 90XT(1)(a) of the Family Law Act 1975 (Cth):

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

(ii) The Husband’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to payments out of the Husband’s interest in the Super Fund B superannuation fund, is correspondingly reduced.

(c) The trustee of the Super Fund B superannuation fund (‘the trustee’) shall do all such acts and things and sign all such documents as may be necessary to:

(i) Calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth), the entitlement created for the Wife by order (1)(a) herein; and

(ii) Pay the entitlement whenever the trustee makes a splittable payment out of the Husband’s interest in the Super Fund B superannuation fund.

(d) That this order has effect from the operative time and the operative time is no later than four weeks from the date of these orders being made.

(e) That, after service of the payment split notice pursuant to regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), the Wife shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to regulation 7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in the Wife’s name in the Super Fund B superannuation fund.

(f) That the Husband is otherwise the sole owner in law and in equity as between himself and the Wife of:

(i) The Motor Vehicle 1 with registration number ...;

(ii) All personal property now in his possession or control;

(iii) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his own name; and

(iv) All furniture, furnishings and effects presently situate in his property.

(g) That the Wife is the sole owner in law and in equity as between herself and the Husband of:

(i) The Motor Vehicle 2 with registration number ...;

(ii) Her right, title, and interest to benefits as a member of the Employer C Pension Scheme;

(iii) All personal property now in her possession or control;

(iv) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name; and

(v) All furniture, furnishings and effects presently situate in her residence.

That the Court make an order under section 74 of the Family Law Act 1975 (Cth) for the Husband pay to the Wife or as the Wife directs in writing from time to time spousal maintenance as follows:

(a) $127 per week, the first payment to be made on or before seven days after the date of this order, and continuing weekly thereafter for four years;

(b) That the spousal maintenance payable by the Husband to the Wife pursuant to order (2)(a) herein is to vary on 1 July each year commencing in 2021 by multiplying the amount payable by the percentage change (if any) in the Consumer Price Index for All Groups Sydney for the previous financial year as prescribed by the Australian Bureau of Statistics;

(c) That by way of further spousal maintenance, the Husband maintain health insurance cover for the Wife in his family health insurance cover at the level to which she was covered in the Husband’s health insurance family cover, as at 15 July 2019;

(d) That if as a consequence of the Wife being maintained as a member of the Husband’s health insurance membership, but not entitled to benefits by reason of the circumstance of their present relationship, then the Husband be responsible for payment of any costs incurred by the Wife in relation to health expenditure for herself that is unrecoverable from the Husband’s private health insurance.

That the parenting proceedings in this matter are stood over to 27 November 2020.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.