BELLENGER & BELLENGER - [2015] FamCA 645

FAMILY COURT OF AUSTRALIA

BELLENGER & BELLENGER

[2015] FamCA 645

FAMILY LAW – PROPERTY – final orders – marriage of short duration with modest assets – neither party is in full time employment and both care for the only child of the relationship – whether global or asset by asset approach appropriate – where the property interests of the parties is considered globally – where the considerations in respect of the superannuation interests are considered separate to 75(2) factors – where one party had a significantly greater salary than the other – comparison of contributions.

Family Law Act 1975 (Cth) s 4, 75(2), 79

Chorn & Hopkins (2004) FLC 93-024
In the Marriage of Coghlan (2005) FLC 93-220
In the Marriage ofGoodwin (1991) FLC 92-192
McMahon & McMahon (1999) FLC 92-606
Ogilvie v Adams (1981) VR 1041
Pierce & Pierce (1999) FLC 92-844
Quinn & Quinn (1979) FLC 90-677
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Bellenger

RESPONDENT:

Ms Bellenger

FILE NUMBER:

ADC

2169

2014

DATE DELIVERED:

5 August 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

9 and 10 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

Dewar Legal

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Cares Lawyers Pty Ltd

Orders

In full and final settlement of any claim that either party may have against the other by way of settlement of property or variation of settlement of property:-
(a)That within sixty (60) days the husband do pay or cause to be paid to the Trust Account of Cares Lawyers for and on behalf of the wife the sum of SEVENTY TWO THOUSAND FOUR HUNDRED AND EIGHTY SIX DOLLARS ($72,486) (“the settlement sum”);
(b)That pending payment of the said settlement sum, the husband be restrained and an injunction is granted restraining him from encumbering, selling, disposing of or otherwise dealing with the property situate at B Street, Suburb C in the State of South Australia (“the Suburb C property”) save as may be required for the payment of the settlement sum in paragraph 1 (a) hereof;
(c)That in default of payment of the settlement sum pursuant to paragraph 1 (a) hereof and should such default continue for more than thirty (30) days THEN the Suburb C property shall forthwith be placed on the market for sale by public auction or private treaty upon such terms and conditions as the parties may agree and in default of agreement as may be ordered by this Honourable Court, with the net proceeds of sale to be applied as follows:-
(i)In payment of all costs, commission and expenses of the default sale;
(ii)To discharge any encumbrance in respect of the said Suburb C property;
(iii)In payment of the settlement sum or so much thereof as may be outstanding with default interest from the due date until the date of payment at the rate prescribed pursuant to the Family Law Rules 2004 (Cth) from time to…

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: BELLENGER & BELLENGER [2015] FamCA 645
Case: [2015] FamCA 645
Decision Date: 5 August 2015

CaseChat Overview and Summary

Berman J made orders in a property settlement dispute between a husband and wife. The core of the dispute concerned the division of property and the financial entitlements of each party.

The court was required to determine the terms of a final settlement of property, including the payment of a specific sum by the husband to the wife, the treatment of a property located in Suburb C, and the division of various assets including bank accounts, motor vehicles, and superannuation entitlements. The court also had to address the specific superannuation entitlements of the wife in the Public Service Superannuation Scheme (PSS Scheme) and the husband's corresponding entitlement under the *Family Law Act 1975* (Cth) and associated regulations.

The court ordered that the husband pay a settlement sum of $72,486 to the wife within sixty days. Pending this payment, the husband was restrained from dealing with the Suburb C property. In the event of default, the property was to be sold, with the proceeds applied first to sale costs, then to discharge encumbrances, then to the settlement sum (with default interest), and any balance to the wife. The husband was to retain his interest in the Suburb C property, subject to the settlement payment, along with his bank accounts, motor vehicle, superannuation, and personal effects. The wife was to retain her bank accounts, motor vehicle, superannuation (subject to the orders), and personal effects. Specific provisions were made for the division of the wife's PSS Scheme superannuation, entitling the husband to a calculated amount of $53,912 at the operative time, with the trustee to facilitate the payment and reduction of the wife's entitlements. Each party was to be solely responsible for their own debts. All matters were to be removed from the active pending list.

Orders

Orders of the court

In full and final settlement of any claim that either party may have against the other by way of settlement of property or variation of settlement of property:-

(a) That within sixty (60) days the husband do pay or cause to be paid to the Trust Account of Cares Lawyers for and on behalf of the wife the sum of SEVENTY TWO THOUSAND FOUR HUNDRED AND EIGHTY SIX DOLLARS ($72,486) (“the settlement sum”);

(b) That pending payment of the said settlement sum, the husband be restrained and an injunction is granted restraining him from encumbering, selling, disposing of or otherwise dealing with the property situate at B Street, Suburb C in the State of South Australia (“the Suburb C property”) save as may be required for the payment of the settlement sum in paragraph 1 (a) hereof;

(c) That in default of payment of the settlement sum pursuant to paragraph 1 (a) hereof and should such default continue for more than thirty (30) days THEN the Suburb C property shall forthwith be placed on the market for sale by public auction or private treaty upon such terms and conditions as the parties may agree and in default of agreement as may be ordered by this Honourable Court, with the net proceeds of sale to be applied as follows:-

(i) In payment of all costs, commission and expenses of the default sale;

(ii) To discharge any encumbrance in respect of the said Suburb C property;

(iii) In payment of the settlement sum or so much thereof as may be outstanding with default interest from the due date until the date of payment at the rate prescribed pursuant to the Family Law Rules 2004 (Cth) from time to time;

(iv) The balance if any to the wife.

(d) The husband shall retain to the exclusion of the wife the following:-

(i) Subject to the payment of the settlement sum in paragraph 1 (a) hereof, his interest in the Suburb C property;

(ii) Funds standing to his credit in bank accounts;

(iii) His motor vehicle;

(iv) His superannuation entitlements;

(v) Any personalty, furniture and effects currently in his possession.

(e) Subject to these orders the wife shall retain to the exclusion of the husband the following:-

(i) Funds standing to her credit in bank accounts;

(ii) Her motor vehicle;

(iii) Her superannuation entitlements subject to these orders;

(iv) Any personalty, furniture and effects currently in her possession.

(f) That pursuant to section 90MT (1) (a) of the Family Law Act 1975 (Cth) whenever a splittable payment is payable in respect of the superannuation interest of the wife in the Public Service Superannuation Scheme (PSS Scheme):-

(i) (A) The husband is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 (Cth) using a base amount in the sum of FIFTY THREE THOUSAND NINE HUNDRED AND TWELVE DOLLARS ($53,912) at the operative time; and

(B) The trustee or trustees make a corresponding reduction in the entitlements the wife would have had in the said PSS Scheme but for these orders.

(ii) That the operative time for the purpose of these orders is four (4) business days following the service of these orders on the trustee.

(iii) That the trustee of the PSS Scheme shall do all such acts and things and sign all such documents as may be necessary so that the trustee, in accordance with the obligations set out under the Family Law Act 1975 (Cth) and that the Family Law (Superannuation) Regulations 2001 (Cth) can calculate the entitlement of and make payment to the husband in accordance with these orders.

(iv) That upon receipt by the husband of a payment split notice when issued by the trustee pursuant to Regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), the husband may exercise his election pursuant to Regulation 7A.06 of the said Regulations to request the trustee to roll over or transfer the transferable benefit as defined by Regulation 1.03(1) to another fund of the husband’s choosing.

(v) That following the action taken by the trustee of the PSS Scheme as contemplated in Regulation 14F (2) (b), the provisions of Regulation 14 of the said Regulations will make any splittable payments, following the action by the trustees, non-splittable.

(g) That each party shall be liable for their own separate debts and obligations to the exclusion and exoneration of the other party.

That all matters be removed from the active pending list of cases.

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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