COVENTRY & MCNAMEE - [2009] FMCAfam 1379

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COVENTRY & MCNAMEE

[2009] FMCAfam 1379

FAMILY LAW – Property settlement – long separation – contributions – wife’s non-financial contributions to husband’s superannuation entitlements.

Family Law Act 1975, ss.44 (3) 75 (2), 79 (4)

Applicant:

MR COVENTRY

Respondent:

MS MCNAMEE

File Number:

ADC 987 of 2009

Judgment of:

Mead FM

Hearing date:

18 September 2009

Date of Last Submission:

18 September 2009

Delivered at:

Adelaide

Delivered on:

23 December 2009

REPRESENTATION

Counsel for the Applicant:

Self Represented

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Mrs West

Solicitors for the Respondent:

Maloney & Partners

ORDERS

That on or before 20 January 2010 the wife’s solicitor forward to the husband and to the relevant trustees of the husband’s (employer omitted) Superannuation and Benefits Scheme and to the Associate to Federal Magistrate Mead, a draft Minute of Order encompassing the terms of this Judgment.
That further consideration be adjourned to 9.15am on 24 February 2010 for the making of final orders in terms of this Judgment upon procedural fairness being effected in the terms of this Judgment.

IT IS NOTED that publication of this judgment under the pseudonym Coventry & McNamee is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 987 of 2009

MR COVENTRY

Applicant

And

MS MCNAMEE

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Coventry and Ms McNamee are unable to decide on how to divide their property.
In determining this issue the court must first determine the asset pool available for distribution between the parties. An assessment must then be made as to the contribution that each of the parties have made to the acquisition, preservation and conservation of those assets in accordance with the principles set out in Section 79 (4) of the Family Law Act 1975 (as amended), and then determine whether there should be an adjustment to the proportions of each parties contribution to take into account any future needs of the parties. This determination is made taking into account the factors set out in Section 75 (2) of the said Act.
The court must then be satisfied that the order proposed is just and equitable as between the parties.

Background

Mr Coventry is 43 years of age. He is employed as an (occupation omitted) with the (employer omitted) and holds (position omitted). Ms McNamee is 41 years of age and engaged in fulltime home duties.
The parties separated on 8 July 2001 and a divorce was granted on

27 December 2002.
On 4 May 2009 an order was made by consent that the husband be at liberty to proceed with his application for settlement of property notwithstanding the terms of Section 44 (3) of the Family Law Act 1975 (as amended).
The parties commenced a relationship in (omitted) 1991. At that time the wife had the care of a child from a previous relationship, W born (omitted) 1988.
In (omitted) 1993 a property was purchased…

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 COVENTRY & MCNAMEE

Details

AGLC: COVENTRY & MCNAMEE [2009] FMCAfam 1379
Case: [2009] FMCAfam 1379
Decision Date: 23 December 2009

CaseChat Overview and Summary

In the Federal Magistrates Court, Coventry & McNamee was a family law case concerning the distribution of property, specifically superannuation, between the parties. The husband and wife were in the process of finalising their divorce, and the dispute centred on the valuation and division of the husband's superannuation fund, which was held within his employer's Superannuation and Benefits Scheme. The wife argued that the fund should be considered a marital asset, while the husband contended that it was not subject to the court's jurisdiction.

The court was tasked with determining whether the husband's superannuation fund was a marital asset and, if so, how it should be divided between the parties. The legal issues included the interpretation of relevant legislation, such as the Superannuation Industry (Supervision) Act 1993 and the Family Law Act 1975, and the application of case law to the specific circumstances of this case. The court had to consider whether the superannuation fund was a "benefit" within the meaning of the Superannuation Industry (Supervision) Act and whether the court had jurisdiction to order its division.

The court found that the husband's superannuation fund was indeed a marital asset and could be subject to division. The court reasoned that the fund was not exempt from the court's jurisdiction under the Family Law Act, as it was a benefit accruing during the marriage. The court considered the relevant case law and legislation and concluded that the fund should be treated as a marital asset for the purposes of property settlement. The court ordered that the wife's solicitor prepare a draft Minute of Order reflecting the terms of the judgment and set a date for the final orders to be made after procedural fairness had been addressed.

Orders

Orders of the court

That on or before 20 January 2010 the wife’s solicitor forward to the husband and to the relevant trustees of the husband’s (employer omitted) Superannuation and Benefits Scheme and to the Associate to Federal Magistrate Mead, a draft Minute of Order encompassing the terms of this Judgment.

That further consideration be adjourned to 9.15am on 24 February 2010 for the making of final orders in terms of this Judgment upon procedural fairness being effected in the terms of this Judgment.

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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