Chapman and Chapman - [2016] FCCA 732

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAPMAN & CHAPMAN

[2016] FCCA 732

Catchwords:
FAMILY LAW – Property proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.4AA, 75, 79, 105A, Part VII,

Evidence Act 1995 (Cth), s.128

Briginshaw & Briginshaw (1938) 60 CLR 336
Kennon (1997) 22 Fam LR 1
Stanford & Stanford (2012) 293 ALR 70
Hickey & Hickey (2003) FLC 93-143
Bevan & Bevan [2013] Fam CAFC 116
McLusky & McLusky [2014] FamCA 93
Todd & Todd [2014] FamCA 101
Adamson & Adamson [2014] FCCA 73
In the marriage of Lee-Steere (1985) FLC 91-626
In the marriage of Ferraro (1993) FLC 92-335
In the marriage of Clauson (1995) FLC 92-595
In Whinton & Whinton [2014] FamCA 102
Kowaliw (1981) FLC 91-092
Chang & Su (2002) FLC 93-117
Black & Kellner (1992) FLC 92-287
Giunti & Giunti (1986) FLC 91-759
Weir & Weir (1993) FLC 92-338
Pierce & Pierce (1999) FLC 92-844
Robb & Robb [1994] FamCA 136; (1995) FLC 92-555
Esposito & Costa [2012] Fam CAFC 118

Applicant:

MS CHAPMAN

Respondent:

MR CHAPMAN

File Number:

NCC 2379 of 2013

Judgment of:

Judge Myers

Hearing date:

11 and 12 December 2014

Date of Last Submission:

1 September 2015

Delivered at:

Newcastle

Delivered on:

20 January 2016

REPRESENTATION

Solicitors for the Applicant:

Mark Graham Solicitor

Solicitors for the Respondent:

Brennan Garrick Lawyers

THE COURT ORDERS THAT:

All previous orders be discharged.
The husband pay to the wife within 42 days the sum of $17,200.13.
A base amount of $5,652.88 is allocated as is required pursuant to s.79MT(4) of the Family Law Act 1975 to the wife out of the interest of the husband’s interest in (omitted) Super Member number (omitted).
In accordance with paragraph s.90MT(1)(a) Family Law Act 1975 the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and the entitlement of the husband and the entitlement of such other person to whom a splittable payment may be made to payments out of the interest of the husband in (employer omitted) Super is correspondingly reduced by force of this order.
The Trustee of (employer omitted) Super (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement for the wife created by these orders and pay the entitlement whenever the Trustee makes a splittable payment out of the interest of the husband in (employer omitted) Super.
These orders have effect from the operative time and the operative time is four business days after service of a sealed copy of these orders on the Trustee.
After service of the payment split notice pursuant to r.7A03 of the Superannuation Industry (Supervision) Regulations 1994 the wife shall do all such things and sign all such documents as may be necessary including but not limited to exercising her request pursuant to r.7A06(1) of the

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 Chapman and Chapman

Details

AGLC: Chapman and Chapman [2016] FCCA 732
Case: [2016] FCCA 732
Decision Date: 20 January 2016

CaseChat Overview and Summary

In the matter of Chapman and Chapman, Judge Myers considered a dispute between a husband and wife concerning property settlement. The proceedings involved the division of assets, including superannuation interests, following the breakdown of the marriage.

The court was required to determine the appropriate method for dividing the parties' property, with a particular focus on how to address the husband's superannuation entitlement. This involved considering the application of specific provisions within the *Family Law Act 1975* and the *Family Law (Superannuation) Regulations 2001* concerning superannuation splitting orders.

Judge Myers reasoned that a portion of the husband's superannuation interest should be allocated to the wife pursuant to s.79MT(4) of the *Family Law Act 1975*. The court further ordered, in accordance with s.90MT(1)(a) of the Act, that the wife was entitled to a payment calculated under Part 6 of the *Family Law (Superannuation) Regulations 2001*, which would correspondingly reduce the husband's and any other entitled person's interest in the superannuation fund. The Trustee of the superannuation fund was directed to take all necessary steps to calculate and pay the wife's entitlement.

The court ordered the discharge of all previous orders and directed the husband to pay the wife a sum of $17,200.13 within 42 days. Additionally, a base amount of $5,652.88 was allocated to the wife from the husband's superannuation interest. The orders were to take effect four business days after service on the Trustee, and the wife was to take necessary steps to roll over or transfer her entitlement from the husband's superannuation interest to a fund of her choosing.

Orders

Orders of the court

All previous orders be discharged.

The husband pay to the wife within 42 days the sum of $17,200.13.

A base amount of $5,652.88 is allocated as is required pursuant to s.79MT(4) of the Family Law Act 1975 to the wife out of the interest of the husband’s interest in (omitted) Super Member number (omitted).

In accordance with paragraph s.90MT(1)(a) Family Law Act 1975 the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and the entitlement of the husband and the entitlement of such other person to whom a splittable payment may be made to payments out of the interest of the husband in (employer omitted) Super is correspondingly reduced by force of this order.

The Trustee of (employer omitted) Super (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement for the wife created by these orders and pay the entitlement whenever the Trustee makes a splittable payment out of the interest of the husband in (employer omitted) Super.

These orders have effect from the operative time and the operative time is four business days after service of a sealed copy of these orders on the Trustee.

After service of the payment split notice pursuant to r.7A03 of the Superannuation Industry (Supervision) Regulations 1994 the wife shall do all such things and sign all such documents as may be necessary including but not limited to exercising her request pursuant to r.7A06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer the transferable benefits out of the husband’s interest in (employer omitted) Super to a fund of the wife’s choosing in accordance with r.7A12 of the Superannuation Industry (Supervision) Regulations 1994.

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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