Bayles and McCann - [2016] FCCA 2865

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAYLES & MCCANN

[2016] FCCA 2865

Catchwords:
FAMILY LAW – Property – 9 year de facto relationship – one child of the parties – 3.5 years since separation – two pool approach to superannuation and non-superannuation assets.

Legislation:

Family Law Act 1975 (Cth), ss.90SF(3) and 90SM

Cases cited:

Bevan & Bevan [2013] FamCAFC 116

Cabbell & Cabbell [2009] FamCAFC 205

C & C (2000) FLC 93 - 220

G & G [2000] FamCA 1075

Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143

In the Marriage of Burke (1981) FLC 91-055

Kowalski and Kowalski (1993) FLC 92-342

Mehmet & Mehmet [1986] FamCA 24

Norman & Norman [2010] FamCAFC 66

AJO & GRO [2005] FamCA 195

Pierce & Pierce (1999) FLC 92-844

Peters & Jensen [2013] FamCA 816

Stanford & Stanford [2012] HCA 52

Tomasetti & Tomasetti [2000] FamCA 314

Townsend & Townsend (1995) FLC 92-569

Williams & Williams [2007] FamCA 313
Watson & Ling [2013] FamCA 57
W & W [2005] FamCA 430

Applicant:

MS BAYLES

Respondent:

MR MCCANN

File Number:

SYC 666 of 2014

Judgment of:

Judge Sexton

Hearing dates:

1 and 2 August 2016

Date of Last Submission:

2 August 2016

Delivered at:

Sydney

Delivered on:

7 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr J. Millar

Solicitors for the Applicant:

Sharon Moss Legal

Counsel for the Respondent:

Mr N. Jackson

Solicitors for the Respondent:

Hughes & Taylor

THE COURT ORDERS THAT:

Within 7 days, the parties do all things and execute all documents to cause the monies presently held in the Controlled Monies Account by the Applicant’s solicitors with (omitted) Bank in account number (omitted) be paid to the Applicant Wife.
Within 28 days the Respondent Husband pay to the Applicant Wife the sum of $432,866.50 by way of property settlement.
Pursuant to s.90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of Mr McCann’s interest in (omitted) Superannuation Fund, Ms Bayles shall be entitled to be paid an amount calculated in accordance with the Regulations, using a base amount, at the date of these orders, in the sum of $156,312, and that there be a corresponding reduction to the entitlement Mr McCann would have had in the (omitted) Superannuation Fund but for this Order.
The Trustee of the (omitted) Superannuation Fund do all such things and sign all such documents as may be necessary to calculate in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001, the entitlement for Ms Bayles created by Order 3 above and pay the entitlement whenever the trustee makes a splittable payment out of the interest of Mr McCann in the said superannuation fund.
Orders 3 and 4 have effect from the operative time being four days after service of a copy of these Orders upon the trustee.
Having been accorded procedural fairness, Orders 3, 4 and 5 are binding on the trustee of the said superannuation fund.

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 Bayles and McCann

Details

AGLC: Bayles and McCann [2016] FCCA 2865
Case: [2016] FCCA 2865
Decision Date: 7 November 2016

CaseChat Overview and Summary

In this matter before Judge Sexton, the Applicant Wife, Ms Bayles, and the Respondent Husband, Mr McCann, sought final property settlement orders. The dispute concerned the division of their matrimonial assets and liabilities, including a controlled monies account and Mr McCann's superannuation interests.

The court was required to determine how the parties' property and superannuation entitlements should be divided. Specifically, the court needed to address the distribution of funds held in a controlled monies account, the payment of a lump sum by way of property settlement, and the division of Mr McCann's superannuation interests in a manner compliant with the Family Law Act 1975. The court also had to consider the enforceability of its orders against the superannuation fund trustee.

Judge Sexton ordered that the monies in the controlled monies account be paid to the Applicant Wife within seven days. The Respondent Husband was ordered to pay the Applicant Wife a sum of $432,866.50 within 28 days as property settlement. Crucially, pursuant to s.90MT(1)(a) of the Family Law Act 1975, Ms Bayles was declared entitled to a splittable payment from Mr McCann's superannuation fund, calculated with a base amount of $156,312, resulting in a corresponding reduction of Mr McCann's entitlement. The trustee of the superannuation fund was directed to facilitate this calculation and payment. The court further ordered that these superannuation orders would bind the trustee, having been accorded procedural fairness, and would take effect four days after service of the orders on the trustee. Each party was otherwise entitled to retain property in their name, and each was to be solely liable for their own debts, indemnifying the other. Finally, the Registrar of the Federal Circuit Court was appointed to execute any necessary documents if a party failed to do so within seven days of request, with the costs to be borne by the defaulting party.

Orders

Orders of the court

Within 7 days, the parties do all things and execute all documents to cause the monies presently held in the Controlled Monies Account by the Applicant’s solicitors with (omitted) Bank in account number (omitted) be paid to the Applicant Wife.

Within 28 days the Respondent Husband pay to the Applicant Wife the sum of $432,866.50 by way of property settlement.

Pursuant to s.90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of Mr McCann’s interest in (omitted) Superannuation Fund, Ms Bayles shall be entitled to be paid an amount calculated in accordance with the Regulations, using a base amount, at the date of these orders, in the sum of $156,312, and that there be a corresponding reduction to the entitlement Mr McCann would have had in the (omitted) Superannuation Fund but for this Order.

The Trustee of the (omitted) Superannuation Fund do all such things and sign all such documents as may be necessary to calculate in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001, the entitlement for Ms Bayles created by Order 3 above and pay the entitlement whenever the trustee makes a splittable payment out of the interest of Mr McCann in the said superannuation fund.

Orders 3 and 4 have effect from the operative time being four days after service of a copy of these Orders upon the trustee.

Having been accorded procedural fairness, Orders 3, 4 and 5 are binding on the trustee of the said superannuation fund.

Except as otherwise provided by these Orders, each of the Applicant and the Respondent is entitled to retain as against the other all items of property and superannuation entitlements presently standing in the name of or in the possession of that party.

Each party otherwise be solely liable for debts in that party’s name and indemnify and keep indemnified the other party in relation to those debts.

That in the event that either party fails to execute any Deed or Instrument necessary to give effect to these Orders within seven (7) days of being requested to do so, the Registrar of the Federal Circuit Court be appointed pursuant to Section 106A of the Family Law Act to execute such Deed or Instrument in the name of such party and do all acts and things as may be necessary to give validity to the operation of the Deed or Instrument. The cost of compliance shall be paid by the party at fault.

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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