Collata and Webster - [2008] FamCA 1067

FAMILY COURT OF AUSTRALIA

COLLATTA & WEBSTER

[2008] FamCA 1067

FAMILY LAW – PROPERTY SETTLEMENT - Property acquired after separation - Adding back to the property pool
FAMILY LAW – PROPERTY SETTLEMENT - Contributions - non-financial contribution
FAMILY LAW – PROPERTY SETTLEMENT - Future needs - Physical requirements of differing employment
FAMILY LAW – CHILD SUPPORT - Application for departure

Family Law Act 1975 (Cth) ss 72(4) and 72(2)
Child Support (Assessment) Act s117

Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
In the Marriage of Gyselman (1991)15FamLR219; (1992) FLC 92-279

APPLICANT:

MS COLLATTA

RESPONDENT:

MR WEBSTER

FILE NUMBER:

SYF

3664

2006

DATE DELIVERED:

8 August 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Judicial Registrar JOHNSTON

HEARING DATE:

8,9 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Humphreys & Feather

COUNSEL FOR THE RESPONDENT:

Mr John Lloyd

SOLICITOR FOR THE RESPONDENT:

McDonell Milne Toltz

Orders

The Orders shall be as follows:

That within 42 days the husband shall do all things and sign all documents necessary to transfer to the wife his interest in the former matrimonial home situated at and known as B property more fully described as Folio Identifier ….
That simultaneously with the transfer referred to above, the wife shall pay to the husband the sum of $103,184.
That the interest of the wife in the N Superannuation Plan be dealt with as follows:-
3.1That the base amount allocated to the husband out of the interest held by the wife in the N Superannuation Plan, member number … is $60,000.
3.2That whenever the Trustee of the N Superannuation Plan makes a splittable payment from the interest held by the wife in the N Superannuation Plan, the trustee shall pay to the husband, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there is a corresponding reduction in the entitlement the wife would have had but for these orders.
3.3That the above order has effect from the operative time.
3.4The operative time for these orders is 28 days after the date of service of these orders on the Trustee.
3.5That this order binds the Trustee of the N Superannuation Plan.
That within 42 days the wife do all things and sign all documents necessary to transfer to the husband free of encumbrance her interest in the BMW motor vehicle, registered number ….
That within 42 days the husband do all things and sign all documents necessary to transfer to the wife free of encumbrance his interest in the Toyota motor vehicle registered number ….
That within 42 days the wife provide for collection by the husband such of the items referred to in the Schedule annexed hereto as are in her possession and/or control.
That otherwise, the husband and the wife are declared respectively the sole owner of all other property and superannuation in their possession and/or control.
That the husband…

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 Collata and Webster

Details

AGLC: Collata and Webster [2008] FamCA 1067
Case: [2008] FamCA 1067
Decision Date: 8 August 2008

CaseChat Overview and Summary

Judicial Registrar Johnston made orders concerning the property and superannuation interests of the husband and wife, and also addressed child support obligations. The dispute involved the division of the former matrimonial home, motor vehicles, and superannuation entitlements, as well as the calculation of child support payments for their two children.

The court was required to determine how the parties' assets and liabilities should be divided, including the former matrimonial home and two motor vehicles. Additionally, the court needed to make orders regarding the division of the wife's interest in the N Superannuation Plan and to establish the husband's child support obligations for specific periods, including a departure from administrative assessments. The court also had to consider the appointment of a Registrar to execute documents if a party failed to do so.

The reasoning applied by the court involved the equitable distribution of property and the determination of child support in accordance with the Family Law Act 1975 and associated regulations. The orders provided for the transfer of the former matrimonial home to the wife in exchange for a payment to the husband, the division of motor vehicles, and a specific allocation from the wife's superannuation to the husband. The court also made detailed orders regarding child support, including lump sum payments and a reduction in administrative assessments for certain periods, and stipulated that the husband would not be liable for fines or penalties related to these payments. The orders were to commence operation on 25 August 2008, with provisions for parties to re-list proceedings for submissions on the form of orders or implementation.

Orders

Orders of the court

The Orders shall be as follows:

That within 42 days the husband shall do all things and sign all documents necessary to transfer to the wife his interest in the former matrimonial home situated at and known as B property more fully described as Folio Identifier ….

That simultaneously with the transfer referred to above, the wife shall pay to the husband the sum of $103,184.

That the interest of the wife in the N Superannuation Plan be dealt with as follows:-

3.1 That the base amount allocated to the husband out of the interest held by the wife in the N Superannuation Plan, member number … is $60,000.

3.2 That whenever the Trustee of the N Superannuation Plan makes a splittable payment from the interest held by the wife in the N Superannuation Plan, the trustee shall pay to the husband, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there is a corresponding reduction in the entitlement the wife would have had but for these orders.

3.3 That the above order has effect from the operative time.

3.4 The operative time for these orders is 28 days after the date of service of these orders on the Trustee.

3.5 That this order binds the Trustee of the N Superannuation Plan.

That within 42 days the wife do all things and sign all documents necessary to transfer to the husband free of encumbrance her interest in the BMW motor vehicle, registered number ….

That within 42 days the husband do all things and sign all documents necessary to transfer to the wife free of encumbrance his interest in the Toyota motor vehicle registered number ….

That within 42 days the wife provide for collection by the husband such of the items referred to in the Schedule annexed hereto as are in her possession and/or control.

That otherwise, the husband and the wife are declared respectively the sole owner of all other property and superannuation in their possession and/or control.

That the husband and the wife remain liable for any debts in their own name and each indemnifies the other in relation thereto.

That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, the Registrar of this Court shall be appointed pursuant to s. 106A of the Family Law Act to execute such deed or instrument in the name of such party and to do all things necessary to give validity and operation to the deed or instrument.

10.

That the above orders not commence operation until 25 August 2008.

11.

That the husband and wife have leave to re-list these proceedings at any time until 22 August 2008 for the purpose of making further submissions in relation to the form of the orders only.

12.

That there be a departure from the administrative assessments of child support payable by the husband in respect of the children M born … February 2000 and S born … January 2002 so that:

12.1 For the period from 15 February 2006 to 31 January 2007 the husband shall pay child support in the weekly amount of $168.

12.2 For the period from 1 February 2007 to 14 May 2007 the husband shall pay child support in the weekly amount of $157.

12.3 For the period from 15 May 2007 to 30 June 2008 the husband shall pay child support in the weekly amount of $164.

13.

That for the period from 1 July 2008 to 30 June 2010 the husband shall pay direct to the wife within 42 days the sum of $17,108 being lump sum child support for this 2 year period.

14.

That for the period from 1 July 2008 o 30 June 2010 the annual rate of child support payable under any administrative assessment is to be reduced by 100%.

15.

That in respect of all the above child support periods the husband shall not be liable to pay any fines or penalties and he is to be credited in full for all child support paid by him over the periods.

16.

That all exhibits be released.

17.

That both parties have leave to re-list these proceedings on 7 days notice in relation to the implementation of these orders.

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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