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Bulow & Bulow

Bulow & Bulow

Case [2019] FamCAFC 3 18 January 2019

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FAMILY COURT OF AUSTRALIA

BULOW & BULOW

[2019] FamCAFC 3

APPEAL – PROPERTY – SUPERANNUATION – Where the trial judge ordered that the parties’ superannuation interests be equalised – Where the husband had a defined benefit interest – Where the wife had an accumulation interest – Where the trial judge made a splitting order pursuant to s 90XT(1)(a) – Where the trial judge allocated a base amount of the husband’s superannuation to the wife – Where it is necessary to refer to the defined benefit fund’s trust deed to determine the effect of any splitting order – Where the fund’s trust deed will dictate the nature form and characteristics of the superannuation interests – Where evidence is lacking there is an obligation to seek evidence regarding matters plainly in issue and relevant – Where the trial judge did not mention the nature form and characteristics of the parties’ superannuation interests – Where the trial judge did not mention the potential effect of any proposed splitting order – Where the trial judge failed to take into account direct financial contributions made by the husband to his superannuation – Where there was appealable error – Appeal allowed – Remitted for rehearing – Costs certificates.

APPLICATION IN AN APPEAL – Where the husband filed an application after the appeal hearing – Where each of the parties were given an opportunity to be heard in respect of the application – Where the application was only relevant if the Full Court re-exercised the discretion – Application dismissed.

Civil Law and Justice Legislation Amendment Act 2018 (Cth)
Family Law Act 1975 (Cth) ss 75(2), 79, 81, 90XS, 90XT
Superannuation Act 1990 (Cth) s 4

Family Law (Superannuation) Regulations 2001 (Cth) reg 5

Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 1.03AA, 7A.04, Part 7A

Public Sector Superannuation Scheme Trust Deed Part 16

Federal Circuit Court Rules 2001 (Cth) rr 15.01, 15.04, 15.09, 24.03

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Coghlan and Coghlan (2005) FLC 93-220; [2005] FamCA 429
Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64
Garrett and Garrett (1984) FLC 91-539; [1983] FamCA 55
Guthrie & Rushton [2009] FamCA 1144
Hayton & Bendle (2010) 43 Fam LR 602; [2010] FamCA 592
Perrin & Perrin (No 2) [2018] FamCAFC 122
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Surridge & Surridge (2017) FLC 93-757; [2017] FamCAFC 10
Tate v Tate (2000) FLC 93-047; [2000] FamCA 1040
Trask & Westlake (2015) FLC 93-662; [2015] FamCAFC 160
T & T (Pension Splitting) (2006) FLC 93-263; [2006] FamCA 207
Weir and Weir (1993) FLC 92-338; [1992] FamCA 69
Welch & Abney (2016) FLC 93-756; [2016] FamCAFC 271

APPELLANT:

Mr Bulow

RESPONDENT:

Ms Bulow

FILE NUMBER:

ADC

1674

2014

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

18 January 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland, Murphy and Kent JJ

HEARING DATE:

27 August 2018; Application in an Appeal filed 4 October 2018; Submissions received…

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: Bulow & Bulow [2019] FamCAFC 3
Case: [2019] FamCAFC 3
Decision Date: 18 January 2019

CaseChat Overview and Summary

The appeal before the court involved the parties' superannuation interests, specifically in relation to a defined benefit interest held by the husband and an accumulation interest held by the wife. The trial judge had ordered that the parties’ superannuation interests be equalised and made a splitting order pursuant to section 90XT(1)(a) of the relevant legislation. The husband had appealed the decision, arguing that the trial judge had failed to consider the nature, form, and characteristics of the parties’ superannuation interests, the potential effect of the proposed splitting order, and the husband's direct financial contributions to his superannuation. The court found that the trial judge had indeed made errors in these respects, and that the appeal was therefore allowable. The case was remitted for rehearing before a different judge, with costs certificates to be provided.

The primary legal issues in this case were whether the trial judge had properly exercised the discretion to equalise the parties’ superannuation interests, and whether there was sufficient evidence to support the splitting order made by the trial judge. The court considered whether the trial judge had failed to take into account the defined benefit fund's trust deed, which would dictate the nature, form, and characteristics of the superannuation interests, and whether there was an obligation to seek evidence regarding matters plainly in issue and relevant. The court also considered whether the trial judge had failed to take into account direct financial contributions made by the husband to his superannuation, and whether there was appealable error as a result of these omissions.

In determining these issues, the court found that the trial judge had indeed made errors in failing to consider the defined benefit fund's trust deed and the potential effect of the proposed splitting order. The court also found that there was an obligation to seek evidence regarding matters plainly in issue and relevant, and that the trial judge had failed to take into account direct financial contributions made by the husband to his superannuation. These errors amounted to appealable error, and the appeal was therefore allowable. The case was remitted for rehearing before a different judge, with costs certificates to be provided.

The court also considered an application filed by the husband after the appeal hearing. The application was only relevant if the Full Court re-exercised the discretion, and the court found that it was not necessary to do so. The application was therefore dismissed.

Orders