Conti and Conti - [2010] FMCAfam 344

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CONTI & CONTI

[2010] FMCAfam 344

FAMILY LAW – Property proceedings – small pool – superannuation – overseas pension or benefit – spouse maintenance – husband left Australia – parenting proceedings – undefended hearing.

Family Law Act 1975 (Cth), Part VII, Part VIII, Part VIIIB

C & C [2005] FamCA 429; (2005) 33 FamLR 414
Hickey & Hickey (2003) FLC 93-143
Maciel & Maciel [2007] FMCAfam 262
In the Marriage of Clauson (1995) 18 FamLR 693
SHL & EHL [2006] FamCA 1287

Applicant:

MS CONTI

Respondent:

MR CONTI

File Number:

NCC 1232 of 2007

Judgment of:

Coakes FM

Hearing date:

9 March 2010

Date of Last Submission:

9 March 2010

Delivered at:

Wauchope

Delivered on:

15 March 2010

REPRESENTATION

Solicitors for the Applicant:

The wife represented herself

Solicitors for the Respondent:

The husband did not appear

ORDERS:

Alteration of Property Interests

Pursuant to section 90MT(1)(c) of the Family Law Act1975, whenever a splittable payment becomes payable in respect of the Member Spouse’s interest in Australian Super the Non-Member Spouse/Applicant shall be entitled to be paid an amount calculated in accordance with the regulations using a base amount, as at the date of these Orders being 100% of the Member Spouse’s interest, and that there be a corresponding reduction to the entitlement the husband would have had in Australian Super but for this Order. Pursuant to section 90MZD of the Family Law Act1975 this Order binds the Trustee of Australian Super.
The preceding Order has effect from the operative time.
The operative time of these Orders pertaining to Australian Super is four (4) business days after service on the Trustee of the Orders made.
The Trustee of Australian Super, in accordance with the obligations set out under the Family Law Act1975 and the Family Law (Superannuation) Regulations2001 should do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the wife in accordance with Order 1 of these Orders.
Payment pursuant to Orders 1, 2, 3 and 4 above be made by cheque or by transfer of the relevant amount to the superannuation fund nominated by the Applicant, that fund being First State Superannuation Fund membership number [omitted].
Unless otherwise specified in these Orders and as between the parties:-
(a)Each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose Bank accounts are deemed to be in the possession of the person whose name appears on the Bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)Unless…

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 Conti and Conti

Details

AGLC: Conti and Conti [2010] FMCAfam 344
Case: [2010] FMCAfam 344
Decision Date: 15 March 2010

CaseChat Overview and Summary

The case of Conti and Conti involved a dispute between a husband and wife regarding the division of property and parenting arrangements for their child. The matter was heard and determined in the Federal Magistrates Court of Australia at Newcastle. The wife, the Applicant, sought an alteration of the property interests, including superannuation entitlements, and dismissal of her application for spouse maintenance. Additionally, the parties contested parenting arrangements for their son, X.

The court had to decide whether the wife was entitled to a portion of the husband's superannuation and other property interests, as well as whether the parenting orders made in 2008 should be altered. The court examined the Family Law Act 1975 and related regulations to determine the appropriate division of property and whether the existing parenting orders should be modified. In particular, the court had to consider the factors relevant to making orders under sections 90SM and 90SL of the Family Law Act 1975 and whether the best interests of the child warranted a change in the existing arrangements.

The court found that the wife was entitled to a portion of the husband's superannuation, calculated according to the relevant regulations. The court also determined that the existing parenting orders should be discharged and replaced with new orders that granted sole parental responsibility to the mother and specified arrangements for the child to communicate with and spend time with his father. The wife's application for spouse maintenance was dismissed, as the court considered the financial circumstances of both parties and the need for the husband to maintain his superannuation for his future retirement.

In summary, the court made orders for the division of property, including the husband's superannuation, and altered the parenting arrangements for the child. The wife was granted sole parental responsibility, and specific arrangements for the child to communicate with and spend time with his father were set out in the orders. The wife's application for spouse maintenance was dismissed.

Orders

Orders of the court

Alteration of Property Interests

Pursuant to section 90MT(1)(c) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the Member Spouse’s interest in Australian Super the Non-Member Spouse/Applicant shall be entitled to be paid an amount calculated in accordance with the regulations using a base amount, as at the date of these Orders being 100% of the Member Spouse’s interest, and that there be a corresponding reduction to the entitlement the husband would have had in Australian Super but for this Order. Pursuant to section 90MZD of the Family Law Act 1975 this Order binds the Trustee of Australian Super.

The preceding Order has effect from the operative time.

The operative time of these Orders pertaining to Australian Super is four (4) business days after service on the Trustee of the Orders made.

The Trustee of Australian Super, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 should do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the wife in accordance with Order 1 of these Orders.

Payment pursuant to Orders 1, 2, 3 and 4 above be made by cheque or by transfer of the relevant amount to the superannuation fund nominated by the Applicant, that fund being First State Superannuation Fund membership number [omitted].

Unless otherwise specified in these Orders and as between the parties:-

(a) Each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose Bank accounts are deemed to be in the possession of the person whose name appears on the Bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and

(b) Unless otherwise agreed herein each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

Order that in the event that either party refuses or neglects to execute any document necessary to give effect to all or any of the Orders herein within seven (7) days of submission of such document to them or their respective Solicitors the Registrar or a Deputy Registrar of the Federal Magistrates Court of Australia at Newcastle or the equivalent Court Officer in any reciprocating jurisdiction under s.124A be appointed pursuant to section 106A of the Family Law Act 1975 to execute any such document in the name of the defaulting party and do all other acts and things necessary to give validity and operation to the said document or documents without further notice.

That the wife’s application for spouse maintenance is dismissed.

Parenting Orders

That the parenting Orders made in the Federal Magistrates Court of Australia at Newcastle on 19 December 2008 are discharged.

10.

That the child [X] born [in] 1994 (“[X]”) live with the mother.

11.

That the mother have sole parental responsibility for [X] both in relation to long term decisions and day to day decisions concerning his care, welfare and development.

12.

That [X] communicate with and spend time with his father as is agreed in writing between the parents.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.