CUMMINGS & WARNER (No.2)

Case [2018] FCCA 2838


FEDERAL CIRCUIT COURT OF AUSTRALIA

CUMMINGS & WARNER (No.2) [2018] FCCA 2838

Catchwords:

FAMILY LAW – Property – enforcement action following earlier judgment that found that a binding financial agreement existed and was binding on the parties pursuant to s.90UJ(1B) Family Law Act 1975 – de facto Wife seeking to enforce this judgment in circumstances where the de facto Husband says that his only asset is his superannuation which is in the payment phase – de facto Husband had benefit of funds from the de facto Wife during the relationship but now seeks to thwart recovery of what he acknowledges that he owes her – de facto Husband contends that the Court is without jurisdiction to make any Order regarding the splitting of his superannuation – finding that the Court has relevant jurisdiction – Orders as sought by the de facto Wife made.

Legislation:

Family Law Act 1975 (Cth) ss.4, 90MC, 90UJ(1B), 90MS, 90MT, 90UN(c)105, 90SS(1)(k) & (l)
Superannuation Act 1976 (Cth) s.119

Federal Circuit Court Rules 2001, rr.25B.11, 25B.13, 25B.15, 25B.61

Cases cited:

Colgate Palmolive v Cussons Pty Ltd (1993) 46 FCR 225

Pera v Pera (2008) 218 FLR 222; (2009) 39 Fam LR 469

Stephens v Stephens (Enforcement) (2010) 42 Fam LR 423

Stephens v Stephens (Costs) (2011) 44 Fam LR 117

Yunghanns v Yunghanns (1999) 24 Fam LR 400

Applicant: MS CUMMINGS
Respondent: MR WARNER
File Number: CAC 1778 of 2015
Judgment of: Judge Neville
Hearing date: 8 August 2018
Date of Last Submission: 8 August 2018
Delivered at: Canberra
Delivered on: 1 November 2018

REPRESENTATION

Counsel for the Applicant: Ms Curran
Solicitors for the Applicant: Robinson + McGuinness
Counsel for the Respondent: Mr Hill
Solicitors for the Respondent: Elizabeth Fleming & Associates Lawyers

ORDERS

  1. The Third Party Debt Notice, dated 26 July 2017, addressed to the Super Fund 1 in favour of Ms Cummings, be discharged.

  2. In accordance with section 90MT(1)(b) of the Family Law Act 1975:

    (a)Ms Cummings is entitled to be paid the specified percentage out of Mr Warner’s interest in the Super Fund 1 (“Super Fund 1”);

    (b)The said Mr Warner’s entitlement is correspondingly reduced by force of this Order; and

    (c)The specified percentage for the purpose of this Order is 38.94%.

  3. The Trustee of the Super Fund 1 do all such acts and things and sign all documents as may be necessary to:

    (a)Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement awarded to Ms Cummings in the immediately preceding clause of this Order; and

    (b)Pay the entitlement whenever the trustee makes a splittable payment from Mr Warner’s interest in the Super Fund 1.

  4. Orders 2 and 3 have effect from the operative time and the operative time is 4 business days after service of a sealed copy of the sealed Orders.

  5. The Respondent is to pay the Applicant’s costs on an indemnity basis, either as agreed or taxed.

NOTATIONS

(A)That in accordance with…

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CUMMINGS & WARNER (No.2) [2018] FCCA 2838
Case
[2018] FCCA 2838
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CaseChat Overview and Summary

In *Cummings & Warner (No.2)*, Judge Neville considered an enforcement action brought by the de facto wife, Ms Cummings, seeking to enforce an earlier judgment that found a binding financial agreement existed and was binding pursuant to s 90UJ(1B) of the *Family Law Act 1975* (Cth). The de facto husband, Mr Warner, contended that the court lacked jurisdiction to make any orders regarding his superannuation, which was his sole asset and in the payment phase, despite acknowledging he owed funds to Ms Cummings.

The central legal issue before the court was whether it possessed the relevant jurisdiction to make orders concerning the splitting of Mr Warner's superannuation interest in circumstances where he argued the court was without such power. This arose in the context of Ms Cummings seeking to recover funds from Mr Warner, who had benefited from her financial contributions during their relationship but was now attempting to avoid repayment.

Judge Neville found that the court did have the necessary jurisdiction to make orders regarding the superannuation. The reasoning applied, drawing from the *Family Law Act 1975*, permitted the court to make orders for the division of superannuation interests in the context of enforcing a financial agreement. Consequently, the court made orders as sought by Ms Cummings, discharging a previous third-party debt notice and entitling Ms Cummings to be paid 38.94% of Mr Warner's interest in Super Fund 1. The trustee of Super Fund 1 was directed to take all necessary steps to calculate and pay this entitlement when splittable payments were made from Mr Warner's interest. The orders were to take effect four business days after service, and Mr Warner was ordered to pay Ms Cummings' costs on an indemnity basis.

Orders

Orders of the court

1.

The Third Party Debt Notice, dated 26 July 2017, addressed to the Super Fund 1 in favour of Ms Cummings, be discharged.

2.

In accordance with section 90MT(1)(b) of the Family Law Act 1975:

(a) Ms Cummings is entitled to be paid the specified percentage out of Mr Warner’s interest in the Super Fund 1 (“Super Fund 1”);

(b) The said Mr Warner’s entitlement is correspondingly reduced by force of this Order; and

(c) The specified percentage for the purpose of this Order is 38.94%.

3.

The Trustee of the Super Fund 1 do all such acts and things and sign all documents as may be necessary to:

(a) Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement awarded to Ms Cummings in the immediately preceding clause of this Order; and

(b) Pay the entitlement whenever the trustee makes a splittable payment from Mr Warner’s interest in the Super Fund 1.

4.

Orders 2 and 3 have effect from the operative time and the operative time is 4 business days after service of a sealed copy of the sealed Orders.

5.

The Respondent is to pay the Applicant’s costs on an indemnity basis, either as agreed or taxed.

NOTATIONS

(A) That in accordance with section 90MZD of the Family Law Act 1975, the Trustee has been accorded procedural fairness in relation to the making of these Orders and has been provided with a copy of the proposed Order.

(B) The Trustee, after service upon it of a sealed copy of these Orders, has obligations under the Superannuation Act 1976 to create an associate pension in the name of the said Ms Cummings.

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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