FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Berfield & Berfield (No 2) [2024] FedCFamC1F 573
File number(s): SYC 482 of 2021 Judgment of: HARPER J Date of judgment: 28 August 2024 Catchwords: FAMILY LAW – PROPERTY – Where the husband and the wife seek orders for property adjustment – Assessment of contributions – Where the husband sought add backs in the amount of $410,000 – 3 per cent adjustment in favour of the wife, pursuant to s 79(4)(e) of the Family Law Act 1975 (Cth) (“the Act”) – Final division of 65/35 per cent in favour of the husband – Where superannuation interests are split equally.
FAMILY LAW – PROPERTY – Where the husband’s siblings have been joined as the Second and Third Respondents – Where the husband and the siblings hold equal shares in a property as tenants in common – Planned subdivision of property - Where the husband brought the property to the relationship – Where the husband and the wife made equal contributions to construction of matrimonial home on the property – Where the wife claims equitable relief against the husband and the siblings – Where the wife claims a beneficial interest in property pursuant to constructive trust – Where the wife makes alternative claim for equitable compensation – Whether the wife has established grounds for imposition of a Baumgartner or common intention constructive trust – Consideration of the principles in Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137 – Whether the wife has established the parties were engaged in a joint endeavour that failed for no attributable blame – Whether the wife established it was unconscionable for the respondents to retain the benefit from the money contributed by the spouse parties where not intended they would if the joint endeavour failed – Where the expenditure on the property was attributable to a personal relationship between the spouse parties and not to a joint endeavour between all parties – Where it was not established there was detrimental reliance on the common intentions of the parties as to ownership of the property –Where the wife’s claim to equitable relief is rejected.
FAMILY LAW – JURISDICTION – Jurisdiction to grant equitable relief against strangers to a marriage – The Court as one of law and equity, pursuant to s 9(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – The Court as a statutory court with powers in the Act to make orders affecting third party interests that mirror equitable relief – Whether the wife’s claim for equitable relief falls within a single justiciable controversy whereby the spousal matrimonial cause constitutes the substantial aspect – Where the equitable claim is not severable from the matrimonial cause – Whether the wife’s claim to equitable relief has an appropriate nexus to the spousal matrimonial cause and/or is itself a separate matrimonial cause under paragraph (f) of the definition in s 4 of the Act – Where determination of…
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- Berfield & Berfield (No 2) [2024] FedCFamC1F 573
- Case
- [2024] FedCFamC1F 573
- Decision Date
CaseChat Overview and Summary
The court found that the wife's claim for equitable relief against the siblings was rejected as it was not established that the parties were engaged in a joint endeavour that failed for no attributable blame, nor was there detrimental reliance on the common intentions of the parties regarding ownership of the property. The expenditure on the property was attributable to a personal relationship between the spouse parties and not a joint endeavour involving all parties. Consequently, the court dismissed the wife's claim for equitable relief against the siblings.
In terms of the division of property, the court assessed the contributions of the parties and found that the husband made a greater financial contribution during the marriage, although the wife also contributed financially. The court allocated a base amount of $207,713 to the wife from the husband's interest in Superannuation Fund 1, entitling her to a corresponding payment whenever a splittable payment becomes payable. The court ordered the husband to pay the wife $396,352 within 60 days. The court also dismissed the wife's application against the siblings, concluding that a just and equitable result could be achieved between the spouse parties without impinging on the siblings' property interests.
The court’s final orders included the payment by the husband to the wife, the allocation of a base amount from the husband’s superannuation interest, and the dismissal of the wife’s application against the siblings. The court granted liberty to apply regarding the implementation of these orders and noted that no order would be made as to costs unless an application was filed within 28 days of the date of the orders.
Orders
Orders of the court
SYC 482 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS B BERFIELD
Applicant
AND:
MR C BERFIELD
First Respondent
MR D BERFIELD
Second Respondent
MS E BERFIELD
Third Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
28 AUGUST 2024
THE COURT ORDERS THAT:
1. Within 60 days the First Respondent Husband (“husband”) pay to the Applicant Wife (“wife”) the sum of $396,352.
Superannuation
2. Within 21 days of the date of these orders, the husband shall file and serve an affidavit demonstrating that the Trustee of Superannuation Fund 1 (“Trustee”) has been afforded procedural fairness for the purposes of Orders 4, 5 and 6.
3. A base amount of $207,713 (“base amount”) is allocated as required by s 90XT(4) of the Family Law Act 1975 (Cth) (“the Act”) to the wife out of the husband's interest in Superannuation Fund 1.
4. Pursuant to s 90XT(l)(a) of the Act, whenever a splittable payment becomes payable in respect of the interest of the husband in Superannuation Fund 1 the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“Superannuation Regulations”) using the base amount and that there be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have become payable but for this Order.
5. The Trustee shall do all such acts and things and sign all such documents as may be necessary to:
(a) calculate, in accordance with the requirements of the Act and the Superannuation Regulations, the entitlement awarded to the wife in accordance with Order 4; and
(b) pay the entitlement whenever the Trustee makes a splittable payment from the husband’s superannuation interest in Superannuation Fund 1.
6. Order 5 has effect from the operative time, and the operative time for the purposes of this order is 5 business days after the date of service upon the Trustee of a certified sealed copy of these orders.
7. Within twenty-eight (28) days of receipt of these orders, the wife shall serve a certified copy of these orders upon the Trustee, and provide to the Trustee, full particulars as to her name, current postal address, date of birth and, other such particulars as may be required of her by the Trustee.
8. The wife and husband shall forthwith do all such acts and things and sign all such documents as may be required to effect a splittable payment and roll-over of the husband’s entitlements in accordance with these orders into such superannuation fund elected by the wife.
9. The Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the wife’s entitlements created by these orders into such superannuation fund as elected by the wife.
10. The husband shall forthwith authorise the Trustee to communicate with the wife or any person authorised by her in writing to answer any reasonable enquiries as may be made to her in relation to his entitlement in the Fund and provide the wife or her authorised representative, a copy of any notice of any application or request by him which seeks release of the entitlement in the Fund insofar as such release effects the wife’s entitlements under these orders.
Other orders
11. Unless otherwise specified in these orders, the husband and the wife shall retain all interest in and entitlement to:
(a) all personal property now in their possession, custody or control;
(b) all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in their sole name;
(c) all interests in life insurance policies and superannuation funds standing in their sole name.
12. Each of the wife and the husband shall retain all liabilities including but not limited to debts, loans and credit cards currently held in their sole name, and indemnify the other in respect of any such liability, whether past, present or future.
13. That unless otherwise specified in these orders, and except for the purpose of enforcing the payment of any money due under these or any subsequent orders:
(a) each party shall be solely entitled to the exclusion of the other in both law and in equity to all property (including choses-in-action) in the possession of such party as at the date of this agreement;
(b) each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
14. That in the event the amount referred to in Order 1 above or any portion thereof remains outstanding after the due date for payment, the husband shall pay interest to the wife at the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) from the due date until payment is made in full.
15. The wife’s application against the Second and Third Respondents be dismissed.
16. Save and except as provided by these orders, all extant applications and responses be otherwise dismissed.
17. The wife, the husband and the Trustee are granted liberty to apply on seven days' notice regarding the implementation of these orders.
18. Any application seeking an award of costs is to be filed and served with an affidavit in support within 28 days of the date of these orders, and in the event no application is filed within the time specified, there shall be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I am satisfied that on balance the husband made a greater financial contribution during the marriage, although the wife contributed financially as well.Financial contributions post-separation By reason of the compensation payment used and received by the wife she made a greater financial contribution after separation. The husband has been receiving the rent from the tenant of the dwelling since separation.(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage I also take account of the wife’s non-financial contributions in planning the former matrimonial home and dealing with tradesmen and subcontractors for its construction.(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent I find that both spouse parties made parenting and homemaker contributions during the marriage, but the wife made the greater contributions in this regard.(d) the effect of any proposed order upon the earning capacity of either party to the marriage; The orders will not have an effect upon the earning capacity of either party.ASSESSMENT OF CONTRIBUTIONS Overall, I assess the contributions of the parties 68 per cent in the husband’s favour and 32 per cent to the wife. I now turn to s 79(4)(e) and the s 75(2) factors.SECTION 75(2) ADJUSTMENT By reason of s 79(4)(e), the Act requires me to take into account the matters referred to in s 75(2) of the Act, so far as they are relevant, when considering what orders should be made in these proceedings. As disclosed in the arguments of the parties, the following matters are relevant.(a) the age and state of health of each of the parties The wife is 49 years of age. The husband is almost 60 years of age. Both spouse parties have health problems. The wife has residual pain from her accident. The husband has anxiety and depression.(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment I have already described the assets of the parties. The wife is presently unemployed. She proposes to apply for a disability support pension, but was not in receipt of such a pension at the date of trial. The husband earned $65,003 for the financial year ended June 2023. Since about August 2020 the husband has received $200 per week for the rent of the older dwelling on Suburb G. He will have to account to the siblings for this rent in part. The husband holds superannuation with Superannuation Fund 1 with an agreed value of $432,642. The wife holds superannuation with Superannuation Fund 2 valued at $17,217.(d) commitments of each of the parties that are necessary to enable the party to support:(i) himself or herself; and(ii) a child or another person that the party has a duty to maintain; The husband presently cares for two adult children who live with him. They do not contribute to household expenses. He pays for their health insurance.(m) if either party is cohabiting with another person-the financial circumstances relating to the cohabitation