Brand and Yoke - [2007] FamCA 759

FAMILY COURT OF AUSTRALIA

BRAND & YOKE

[2007] FamCA 759

FAMILY LAW – PROPERTY – Undefended hearing – Failure by the husband to attend, comply with the obligation of providing disclosure and participate – Property division in favour of the husband 80 per cent to 20 per cent – Substantial initial contribution by the husband and use of business acumen to substantially increase the parties’ wealth by $2,000,000 – Adjustment in favour of the wife of 11 per cent or 22 per cent differential to take into account the husband’s ability to access land entitlements in a Pacific country worth about $1,000,000

Family Law Act 1975

Chorn & Hopkins (2004) FLC ¶93-204
Townsend v Townsend (1995) FLC ¶92-569
Ferraro v Ferraro (1993) FLC ¶92-335
Charman v Charman [2006] Fam Law 1018
Weir v Weir (1993) FLC ¶92-338
Black v Kellner (1992) FLC ¶92-287

APPLICANT:

Ms Brand

RESPONDENT:

Mr Yoke

FILE NUMBER:

CAF

437

2004

DATE DELIVERED:

1 August 2007

PLACE DELIVERED:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

30 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Millar

SOLICITOR FOR THE APPLICANT:

Farrar Gesini and Dunn

No appearance for or on behalf of the husband

Orders

That Peter Willy and Associates, Solicitors, do all acts and things necessary forthwith to cause to be paid to the wife all money held in trust by them on behalf of the husband and the wife being the proceeds of the sale of the property known as L in Queensland and that service of this order upon the solicitors shall be sufficient authority for them to pay that money to the wife or as she may direct.
That Orders 1, 2, 3 and 4 of the Orders made by Deputy Chief Justice Faulks on 14 November 2006 which direct the Trustee not to make splittable payments of the husband’s superannuation fund is hereby revoked.
That in accordance with s 90MT1(b) of the Family Law Act 1975 (“the Act”) whenever a splittable payment within the meaning of s 90ME of the Act becomes payable to or on behalf of Mr Yoke (“the husband”), born in September 1946, (reference number …) from his interest in the Y Superannuation Fund managed with E Limited (“the fund”) Ms Brand (“the wife”) be entitled to be paid by the Trustee of the Fund (“the Trustee”) 100 per cent of the splittable payment and that there be a corresponding reduction in the amount the husband would receive but for these orders.
That the operative time for Orders 3 and 5 be the date of the transfer of the transferable benefit as defined in the Superannuation Industry (Supervision) Regulations 1994.
That the Trustee in accordance with the obligations set out in the Act and Family Law Superannuation Regulations 2001 do all such acts and things and sign all such documents as may be necessary 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,…

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 Brand and Yoke

Details

AGLC: Brand and Yoke [2007] FamCA 759
Case: [2007] FamCA 759
Decision Date: 1 August 2007

CaseChat Overview and Summary

The case of Brand and Yoke concerned a dispute between a husband and wife, heard by Deputy Chief Justice Faulks. The primary dispute revolved around the division of marital assets, particularly the proceeds from the sale of a property and the husband's superannuation entitlements.

The court was required to determine how the proceeds of the sale of the property known as L in Queensland should be distributed, and to make orders regarding the husband's superannuation fund, the Y Superannuation Fund. Specifically, the court needed to consider whether to revoke previous orders that prevented the trustee from making splittable payments from the husband's superannuation, and to determine the wife's entitlement to such payments.

The court ordered that solicitors holding trust money from the sale of the Queensland property were to pay all such money to the wife. Furthermore, previous orders restraining the trustee of the Y Superannuation Fund from making splittable payments were revoked. The court declared that the wife was entitled to 100 per cent of any splittable payment made from the husband's interest in the Y Superannuation Fund, with a corresponding reduction for the husband, in accordance with s 90MT1(b) and s 90ME of the Family Law Act 1975. The operative time for these superannuation orders was set as the date of the transfer of the transferable benefit. The court also confirmed each party's entitlement to property in their possession, declared the wife as the owner of benefits from specific superannuation schemes in her name, and ordered mutual indemnities for liabilities encumbering property awarded to each party.

Orders

Orders of the court

That Peter Willy and Associates, Solicitors, do all acts and things necessary forthwith to cause to be paid to the wife all money held in trust by them on behalf of the husband and the wife being the proceeds of the sale of the property known as L in Queensland and that service of this order upon the solicitors shall be sufficient authority for them to pay that money to the wife or as she may direct.

That Orders 1, 2, 3 and 4 of the Orders made by Deputy Chief Justice Faulks on 14 November 2006 which direct the Trustee not to make splittable payments of the husband’s superannuation fund is hereby revoked.

That in accordance with s 90MT1(b) of the Family Law Act 1975 (“the Act”) whenever a splittable payment within the meaning of s 90ME of the Act becomes payable to or on behalf of Mr Yoke (“the husband”), born in September 1946, (reference number …) from his interest in the Y Superannuation Fund managed with E Limited (“the fund”) Ms Brand (“the wife”) be entitled to be paid by the Trustee of the Fund (“the Trustee”) 100 per cent of the splittable payment and that there be a corresponding reduction in the amount the husband would receive but for these orders.

That the operative time for Orders 3 and 5 be the date of the transfer of the transferable benefit as defined in the Superannuation Industry (Supervision) Regulations 1994.

That the Trustee in accordance with the obligations set out in the Act and Family Law Superannuation Regulations 2001 do all such acts and things and sign all such documents as may be necessary 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.

That unless otherwise specified in these Orders:

(a) Each party is entitled both at law and in equity to the property currently in his or her possession or control.

(b) The wife is declared to be the owner of any benefit from any of the superannuation schemes in her name being the M Superannuation Fund, the F Superannuation Fund and the R Superannuation Fund.

(c) Each party indemnifies and will indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

10.

The matter be removed from the Pending Cases Inventory.

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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