Bishop and Lovett - [2010] FamCA 761

FAMILY COURT OF AUSTRALIA

BISHOP & LOVETT

[2010] FamCA 761

FAMILY LAW – PROPERTY – Superannuation – Just and equitable – Interim orders made in February 2001 by consent – Where proceedings adjourned pursuant to s 79(5) of the Family Law Act 1975 (Cth) – Consideration of Gabel & Yardley (2008) FLC 93-386 and the distinction between “interim” and “partial” orders – Where part of the husband’s superannuation interest commuted – Splittable payment order

Family Law Act 1975 (Cth) ss 75(2), 79(4), 79(5)
Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) s 5(1)
Family Law (Superannuation) Regulations 2001

C & C (2005) FLC 93-220
Gabel & Yardley [2007] FamCA 1322
Gabel & Yardley (2008) FLC 93-386
Steinbrenner & Steinbrenner [2008] FamCAFC 193
West & Green (1993) FLC 92-395

APPLICANT:

Ms Bishop

RESPONDENT:

Mr Lovett

FILE NUMBER:

CAF

513

1999

DATE DELIVERED:

1 September 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

6 & 7 March 2008

Written submissions filed by both parties on 17 April 2008
Written submissions of the husband filed 29 April 2008
Written submissions of the wife filed 1 May 2008
Written submissions of the wife filed 9 December 2009
Written submissions of the husband filed 14 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G. Howard & Mr S. Bourke

SOLICITOR FOR THE APPLICANT:

Farrar Gesini & Dunn

COUNSEL FOR THE RESPONDENT:

Ms A. Tonkin

SOLICITOR FOR THE RESPONDENT:

Mazengarb Barralet Family Lawyers

Orders

That in accordance with section 90MT(1)(b) of the Family Law Act 1975 (Cth), whenever a splittable payment within the meaning of section 90ME of the Family Law Act 1975 (Cth) becomes payable to or on behalf of the husabnd (born … 1957, member number …) from his interest in the Defence Force Retirement and Death Benefits Scheme (the DFRDB), the wife (born … 1959) is entitled to be paid by the trustee of the DFRDB 25 per cent of the splittable payment and that there be a corresponding reduction in the amount the husband would be entitled to receive but for these orders.
The operative time for order 1 be 28 days after the service of these orders on the trustee of the DFRDB.
That the trustee of the DFRDB, in accordance with the obligations set out under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001, do all such acts and things and sign all such documents as may be necessarily to calculate the entitlements of, and make payment to, the wife in accordance with these orders.
That these orders are binding upon the executors, administrators, beneficiaries heirs and assigns of the parties.
The wife indemnify and keep indemnified the husband in respect of any liability owed to Mr Ian Gillespie-Jones (solicitor) by the wife or by the wife and the husband.
(a) In relation to the husband’s mother’s ring, the chaise lounge, the Russian chess set and the Lladro figurines in the possession of the wife, the parties will choose…

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 Bishop and Lovett

Details

AGLC: Bishop and Lovett [2010] FamCA 761
Case: [2010] FamCA 761
Decision Date: 1 September 2010

CaseChat Overview and Summary

In the matter of Bishop and Lovett, heard in the Federal Circuit and Family Court of Australia, the parties sought final property settlement orders. The dispute concerned the division of the husband's superannuation interests in the Defence Force Retirement and Death Benefits Scheme (DFRDB) and the distribution of various chattels.

The court was required to determine the extent to which the wife was entitled to a share of the husband's DFRDB splittable payments and how specific items of personal property should be divided between the parties. The court also needed to make orders to facilitate the practical implementation of the superannuation division and address the ownership of all other assets.

Applying sections 90MT(1)(b) and 90ME of the *Family Law Act 1975* (Cth), the court ordered that the wife be entitled to 25 per cent of any splittable payment from the husband's DFRDB interest, with a corresponding reduction in the husband's entitlement. The operative time for this order was set at 28 days after service on the DFRDB trustee, who was directed to take all necessary steps to effect the payment. The court also ordered a method for dividing specific chattels by lot and declared each party to be the owner of all other property in their possession.

Orders

Orders of the court

That in accordance with section 90MT(1)(b) of the Family Law Act 1975 (Cth), whenever a splittable payment within the meaning of section 90ME of the Family Law Act 1975 (Cth) becomes payable to or on behalf of the husabnd (born … 1957, member number …) from his interest in the Defence Force Retirement and Death Benefits Scheme (the DFRDB), the wife (born … 1959) is entitled to be paid by the trustee of the DFRDB 25 per cent of the splittable payment and that there be a corresponding reduction in the amount the husband would be entitled to receive but for these orders.

The operative time for order 1 be 28 days after the service of these orders on the trustee of the DFRDB.

That the trustee of the DFRDB, in accordance with the obligations set out under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001, do all such acts and things and sign all such documents as may be necessarily to calculate the entitlements of, and make payment to, the wife in accordance with these orders.

That these orders are binding upon the executors, administrators, beneficiaries heirs and assigns of the parties.

The wife indemnify and keep indemnified the husband in respect of any liability owed to Mr Ian Gillespie-Jones (solicitor) by the wife or by the wife and the husband.

(a) In relation to the husband’s mother’s ring, the chaise lounge, the Russian chess set and the Lladro figurines in the possession of the wife, the parties will choose by lot which of them will have first pick; and that party will choose one of the four chattels (or collection of chattels) referred to above; the other party will then choose another of the items; the first chooser another of the items until all the chattels are exhausted.

(b) The parties will confer and agree about how the husband will collect the items from the wife. If the parties choose to have the wife send them to the husband, he will pay for the cost of transport and associated costs such as insurance (if any).

Each party is declared to be the owner both at law and in equity of all other property in possession of such party at the date of these orders, including any superannuation interest other than as specified in these orders.

All extant applications, save as to the question of costs, are discharged.

The matter is removed from the pending cases inventory.

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.