CUMMINGS & WARNER (No.2)

[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…