Blackwell & Blackwell - [2022] FedCFamC2F 66

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Blackwell & Blackwell [2022] FedCFamC2F 66

File number(s): BRC 4886 of 2021

Judgment of: JUDGE MIDDLETON

Date of judgment: 28 January 2022

Catchwords: FAMILY LAW – PROPERTY – Interim hearing, whether the superannuation fund is deemed to be a financial resource when adjusting the parties property pool.

Legislation: Family Law Act 1975 (Cth), ss.79, 90XC, 90XD, 90XS

Cases cited: Burge and Burge [2015] FamCA 178
Campbell v Superannuation Complaints Tribunal [2016] FCA 808
Goudarzi & Bagheri(No 2) [2017] FamCAFC 190
Hickey v Hickey [2003] FamCA 395
Norbis v Norbis [1986] HCA 17
Semperton & Semperton [2012] FamCAFC 132
Surridge and Surridge [2015] FamCA 493

Division: Division 2 Family Law

Number of paragraphs: 22

Date of last submission/s: 20 December 2021

Date of hearing: 22 November 2021

Place: Maroochydore

Counsel for the Applicant: Mr Selfridge

Solicitor for the Applicant: Mcduff & Guilfoyle Lawyers

Counsel for the Respondent: Ms Cullen

Solicitor for the Respondent: Law Essentials Hervey Bay
ORDERS

BRC 4886 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BLACKWELL

Applicant

AND:
MR BLACKWELL

Respondent

ORDER MADE BY:

JUDGE MIDDLETON

DATE OF ORDER:

28 JANUARY 2022

THE COURT ORDERS THAT:
1.The Respondent’s application seeking a declaration that the superannuation interest of the Respondent be deemed a financial resource or in the alternative, that his superannuation interest be categorised as a separate pool is dismissed.
2.The Applicant’s costs of and incidental to this application are reserved

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Blackwell & Blackwell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MIDDLETON
INTRODUCTION

These reasons relate to a discrete issue regarding the treatment of the Respondent husband’s superannuation entitlement. The Respondent seeks an order that his “defined benefit pension interest” be deemed a financial resource or in the alternative, that his interest be considered as a separate pool when determining the alteration of property interests pursuant to section 79. The Applicant wife seeks that the husband’s application for the declarations be dismissed.
The Respondent husband is a member of the C Super Fund. His superannuation entitlements are now being paid by way of a permanent disability pension.
The matter has proceeded by way of written submissions and the material relied upon…

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 Blackwell & Blackwell

Details

AGLC: Blackwell & Blackwell [2022] FedCFamC2F 66
Case: [2022] FedCFamC2F 66
Decision Date

CaseChat Overview and Summary

In this case, the parties are Ms Blackwell and Mr Blackwell. The dispute revolves around whether the superannuation fund of Mr Blackwell should be deemed a financial resource or categorised as a separate pool when adjusting the parties' property pool. The matter was heard in the Federal Circuit and Family Court of Australia (Division 2). The primary legal issue was whether the superannuation interest of Mr Blackwell, paid by virtue of a medical condition, should be considered a financial resource or an asset. The court considered the definitions and structure of the Family Law Act 1975 (Cth) and relevant case law.

Judge Middleton concluded that the superannuation interest of Mr Blackwell is not a financial resource but rather an asset. The court found that the interest is a superannuation interest as defined in section 90XD of the Family Law Act, as it comes about by virtue of his membership in the C Super Fund, which is an eligible superannuation plan. The court also determined that it was premature to decide on the approach to be adopted in determining the adjusted property interests of the parties, as it was a preliminary matter and the overall assets of the parties and the value attributed to those assets had not been considered.

The court dismissed the Respondent's application seeking a declaration that his superannuation interest be deemed a financial resource or categorised as a separate pool. The Applicant's costs were reserved.

The court's orders are as follows:

1. The Respondent's application seeking a declaration that his superannuation interest be deemed a financial resource or categorised as a separate pool is dismissed.
2. The Applicant's costs of and incidental to this application are reserved.

Orders