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Craig and Rowlands

Craig and Rowlands

Case [2013] FamCAFC 45 22 March 2013

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FAMILY COURT OF AUSTRALIA

CRAIG & ROWLANDS

[2013] FamCAFC 45

FAMILY LAW – APPEAL – PROPERTY – DFRDB – Appeal from a discretionary decision of Federal Magistrate in property proceedings involving a Defence Force Retirement and Deaths Benefit (“DFRDB”) entitlement – Whether the Federal Magistrate erred in treating the appellant husband’s DFRDB entitlement as if it were a capital sum capable of actual distribution – Where the Federal Magistrate adopted a two pool approach when identifying the property for distribution however ultimately had recourse to a global approach in the division of the property – Where the Federal Magistrate failed to demonstrate an appreciation of the “different character” or “real nature” of the DFRDB in the final stage, together with the necessary assessment of whether the orders were just and equitable – Appealable error demonstrated – Whether the Federal Magistrate’s approach had the effect of double dipping on the DFRDB asset – Where the Federal Magistrate double counted the asset by determining the parties’ entitlements to it in one separate pool, then having regard to it again as a s 75(2) factor in the division of the other pool – Appealable error demonstrated – Whether the Federal Magistrate erred in the assessment of the wife’s contribution to the parties’ non-DFRDB superannuation assets – Where there is no assessment of contributions to the non-DFRDB superannuation assets which were largely accrued during the course of the relationship – Where the reasons in this respect are so deficient that the ground must succeed – Appealable error demonstrated – Appeal allowed and matter remitted for rehearing.

Defence Forces Retirement and Death Benefits Act 1973 (Cth) ss 49, 125
Family Law Act 1975 (Cth) ss 75(2), 79, 90MC, 90MS, Part VIIIB
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Family Law (Superannuation) Regulations 2001 (Cth)
Family Law Rules 2004 (Cth)

Bennett and Bennett (1991) FLC 92-191
Cahill and Cahill (2006) FLC 93-253
Coghlan and Coghlan (2005) FLC 93-220
House v The King (1936) 55 CLR 499
McKinnon and McKinnon (2005) FLC 93-242
Norbis v Norbis (1986) 161 CLR 513
Robertson & Robertson [2012] FamCAFC 60
Semperton & Semperton [2012] FamCAFC 132
Stanford v Stanford [2012] HCA 52
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT:

Mr Craig

RESPONDENT:

Ms Rowlands

FILE NUMBER:

BRC 6874 of 2010

APPEAL NUMBER:

NA 102 of 2011

DATE DELIVERED:

22 March 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Strickland and Forrest JJ

HEARING DATE:

10 August 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

29 November 2011

LOWER COURT MNC:

[2011] FMCAfam 1274

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page SC with Mr Cameron

SOLICITOR FOR THE APPELLANT:

Hillhouse Burrough McKeown

COUNSEL FOR THE RESPONDENT:

Mr Burridge

SOLICITOR FOR THE RESPONDENT:

Biggs Fitzgerald Pike

Orders

The appeal be allowed.
The orders made by Federal Magistrate Purdon-Sully on 22 February 2012 be set aside save and except for orders 1, 2 and 3.
The applications of the parties for property settlement…

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 Craig and Rowlands

Details

AGLC: Craig and Rowlands [2013] FamCAFC 45
Case: [2013] FamCAFC 45
Decision Date

CaseChat Overview and Summary

- **Introduction**
The appeal was brought against final property orders made by Federal Magistrate Purdon-Sully on 22 February 2012, following proceedings between Mr Craig and Ms Rowlands. The husband appeals against the orders he seeks be set aside. The effect of the orders, as described by her Honour, was that the parties’ net asset worth including superannuation and the capitalised value of the husband’s Defence Force Retirement and Deaths Benefits (“DFRDB”) entitlement be divided 40.5 per cent to the wife and 59.5 per cent to the husband.

- **Legal Issues**
The legal issues in the case revolved around the Federal Magistrate's treatment of the husband's DFRDB entitlement as if it were a capital sum capable of actual distribution. The husband also complained that the Federal Magistrate erred in the assessment of the wife’s contribution to the DFRDB entitlement, and that her approach had the effect of double dipping on the DFRDB asset. The husband further argued that the Federal Magistrate erred in the assessment of the wife’s contribution to the parties’ non-DFRDB superannuation assets. The court was required to decide whether the Federal Magistrate had erred in her assessment and treatment of the DFRDB and superannuation assets, and whether these errors were sufficient to warrant allowing the appeal.

- **Court's Reasoning and Outcome**
The court found that the Federal Magistrate had indeed erred in her treatment of the DFRDB. The court held that the Federal Magistrate erred by treating the DFRDB as if it were a capital sum available for distribution between the parties, despite it being received by the husband in a fortnightly sum. The court also found that the Federal Magistrate's approach had the effect of double counting the DFRDB asset by determining the parties’ entitlements to it in one separate pool, and then having regard to it again as a s 75(2) factor in the division of the other pool. Furthermore, the court found that the Federal Magistrate had failed to adequately explain her reasoning process for arriving at the overall property adjustment. The court also found that the Federal Magistrate erred in the assessment of the wife’s contribution to the DFRDB and the parties’ non-DFRDB superannuation assets. The court concluded that these errors warranted allowing the appeal and setting aside the orders made by the Federal Magistrate, except for Orders 1, 2, and 3. The court ordered a rehearing of the application for property settlement by a Federal Magistrate other than Federal Magistrate Purdon-Sully.

- **Final Orders**
The court allowed the appeal and set aside the orders made by Federal Magistrate Purdon-Sully on 22 February 2012, except for Orders 1, 2, and 3. The court ordered a rehearing of the application for property settlement by a Federal Magistrate other than Federal Magistrate Purdon-Sully. The court also granted costs certificates to both parties for the appeal and the rehearing.

Orders