Baxter and Brown and Anor - [2012] FamCA 100

FAMILY COURT OF AUSTRALIA

BAXTER & BROWN AND ANOR

[2012] FamCA 100

FAMILY LAW - PROPERTY - Settlement in relation to marriage - Third party – Unconscionable conduct – Guarantee – Right to set aside – Wife in position of volunteer – Solicitor’s conduct – Superannuation splitting order

Family Law Act 1975 (Cth), s 75(2), s 79(1), s 79(2), s 79(4), s 90AE, s 90MT(1)(a), s 90MT(4)
Trade Practices Act 1974 (Cth)

Barclays Bank Pty Ltd v Thomson [1997] 4 All ER 816
Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Ferraro and Ferraro (1993) FLC 92-335
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
McNamara v Commonwealth Trading Bank (1984) 37 SASR
Lee Steere and Lee Steere (1985) FLC 91-626
Ribchenkov and Suncorp-Metway Limited (2000) 175 ALR 650; [2000] FCA 835
State Bank v Sullivan [1997] NSWSC 596
Yerkey v Jones (1939) 63 CLR 649

APPLICANT:

Ms Baxter

1st RESPONDENT:

Mr Brown

2nd RESPONDENT:

Westpac Banking Corporation

FILE NUMBER:

HBC

1056

2009

DATE DELIVERED:

2 March 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Launceston and Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

13 & 14 July (Launceston) and 11 August 2011 (Sydney)

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ayliffe

SOLICITOR FOR THE APPLICANT:

Dobson Mitchell & Allport

FOR THE 1ST RESPONDENT:

Mr Brown in person

COUNSEL FOR THE 2ND RESPONDENT:

Mr Procter SC

SOLICITOR FOR THE 2ND RESPONDENT:

Murdoch Clarke

Orders

That the claim made by the Wife against Westpac Banking Corporation be dismissed.
The Court allocates as required by Section 90MT(4) of the Act a base amount of $220,000.00 to the Wife, Ms Baxter, out of the interest of the Husband, Mr Brown, in the R Superannuation Scheme Member No. … (“the R account”).
Pursuant to Section 90MT(1)(a) of the Act, whenever the Trustee of the R account makes a splittable payment under the Husband’s interest in the R account, the Trustee will:
(a)pay to the Wife or her legal personal representatives, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)make a corresponding reduction to the entitlement to the person to whom the splittable payment would have been made but for this Order.
Paragraph 2 of this Order has effect from the operative time and the operative time is the expiration of four (4) business days from the service of a certified copy of this Order on the Trustee of the R Account.
Unless otherwise specified in this Order:-
(a)each party will be solely entitled to the exclusion of the other to all property in the possession of that party as at this date;
(b)each party will be solely liable for and indemnify the other against any liability encumbering any form of property to which that party is entitled pursuant to this Order;
(c)each party will remain solely liable for their respective debts.
That all…

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 Baxter and Brown and Anor

Details

AGLC: Baxter and Brown and Anor [2012] FamCA 100
Case: [2012] FamCA 100
Decision Date: 2 March 2012

CaseChat Overview and Summary

In *Baxter and Brown and Anor*, heard by Johnston J, the dispute concerned the division of property between a husband and wife, with a superannuation fund, Westpac Banking Corporation, also involved. The wife sought orders against Westpac, which were ultimately dismissed. The primary focus of the court's determination was the allocation of a portion of the husband's superannuation interest to the wife.

The central legal issues before the court were the appropriate method for allocating a portion of the husband's superannuation interest to the wife, and the specific terms of the order to be made to effect this allocation under the relevant legislation. The court was also required to consider and dismiss the wife's claim against Westpac.

Johnston J applied the principles of the *Family Law Act 1975* (Cth), specifically section 90MT, to determine the division of the superannuation asset. The court ordered that a base amount of $220,000.00 be allocated to the wife from the husband's interest in the R Superannuation Scheme. This allocation was to be effected by the Trustee of the R account making splittable payments to the wife whenever such payments would otherwise be made to the husband, with a corresponding reduction to the husband's entitlement. The court also made standard orders regarding the parties' respective entitlements to other property and liabilities.

Orders

Orders of the court

That the claim made by the Wife against Westpac Banking Corporation be dismissed.

The Court allocates as required by Section 90MT(4) of the Act a base amount of $220,000.00 to the Wife, Ms Baxter, out of the interest of the Husband, Mr Brown, in the R Superannuation Scheme Member No. … (“the R account”).

Pursuant to Section 90MT(1)(a) of the Act, whenever the Trustee of the R account makes a splittable payment under the Husband’s interest in the R account, the Trustee will:

(a) pay to the Wife or her legal personal representatives, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

(b) make a corresponding reduction to the entitlement to the person to whom the splittable payment would have been made but for this Order.

Paragraph 2 of this Order has effect from the operative time and the operative time is the expiration of four (4) business days from the service of a certified copy of this Order on the Trustee of the R Account.

Unless otherwise specified in this Order:-

(a) each party will be solely entitled to the exclusion of the other to all property in the possession of that party as at this date;

(b) each party will be solely liable for and indemnify the other against any liability encumbering any form of property to which that party is entitled pursuant to this Order;

That all exhibits be released.

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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