Daniels and Daniels - [2009] FamCA 1152

FAMILY COURT OF AUSTRALIA

DANIELS & DANIELS

[2009] FamCA 1152

FAMILY LAW – PROPERTY – Issue estoppel

Family Law Act 1975 (Cth)

Blair & Curren (1939) 62 CLR 464
Gosper & Gosper (1987) FLC 91-818

APPLICANT:

Mr Daniels

RESPONDENT:

Ms Daniels

FILE NUMBER:

MLC

7796

2000

DATE DELIVERED:

25 November 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

14, 15, 16 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR NORTH SC

SOLICITOR FOR THE APPLICANT:

TOLLHURST DRUCE & EMMERSON

COUNSEL FOR THE RESPONDENT:

MR SPICER

SOLICITOR FOR THE RESPONDENT:

PEARCE WEBSTER DUGDALES

Orders

That the husband and wife shall forthwith do all acts and things necessary to distribute the monies standing to their joint credit in the Commonwealth Bank Account in equal shares between them.
That the wife shall forthwith transfer to the husband all her right, title, and interest in the Telstra shares in the joint names of the husband and wife.
That pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable from the superannuation interest of THE HUSBAND in the Emergency Services Superannuation Scheme – Beneficiary Account:
(a)THE WIFE shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $22,344 (provided that such base amount shall not exceed the value of the interest determined under s 90MT(2));
(b)There be a corresponding reduction in the superannuation interest of the member, THE HUSBAND to whom the splittable payment would have been made but for the Order.
That the operative time for these orders is four business days after service of the final sealed orders on the Emergency Services Superannuation Scheme – Beneficiary Account.
That there shall be liberty to apply to each party and the Trustee in relation to the implementation of the orders affecting the superannuation interest.
If, as a result of the termination of his employment, THE HUSBAND becomes entitled to a benefit prior to the Emergency Service Superannuation Board making a payment under s 22(f) of the Emergency Services Superannuation Act 1986, he shall provide to the Emergency Services Superannuation Board all such forms as shall be necessary to enable the Trustee to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require, within seven days of that entitlement arising.
That the husband shall retain all other assets in his possession or under his control.
That the wife shall retain all other assets in her possession or under her control.
That otherwise all applications are dismissed and the case removed from the list of cases awaiting finalisation.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel and Senior Counsel.
That if any party seeks a costs order they shall notify the other party and my Associate by 4.00pm on 2 December 2009.

IT IS NOTED that publication of this judgment under the pseudonym

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 Daniels and Daniels

Details

AGLC: Daniels and Daniels [2009] FamCA 1152
Case: [2009] FamCA 1152
Decision Date: 25 November 2009

CaseChat Overview and Summary

In *Daniels and Daniels*, Dessau J considered the division of assets between a husband and wife. The dispute concerned the distribution of monies in a joint bank account, Telstra shares held jointly, and the husband's superannuation interest. The court also addressed the retention of other assets by each party and the question of costs.

The primary legal issues before the court were how to equitably divide the parties' joint assets, specifically the bank account and Telstra shares, and how to address the husband's superannuation entitlement. This involved determining the appropriate method for valuing and splitting the superannuation interest in accordance with the *Family Law Act 1975* and its associated regulations. The court was also required to make orders regarding the operative time for these divisions and to consider any liberty to apply for the parties and the trustee.

Dessau J ordered that the monies in the Commonwealth Bank account be divided equally between the husband and wife. The wife was also ordered to transfer her interest in the jointly held Telstra shares to the husband. Crucially, regarding the husband's superannuation interest in the Emergency Services Superannuation Scheme, the court made orders pursuant to s 90MT(1)(a) of the *Family Law Act 1975*. These orders stipulated that the wife would be entitled to a calculated amount from splittable payments from the husband's superannuation, with a corresponding reduction in the husband's interest. The operative time for these orders was set at four business days after service of the sealed orders on the superannuation scheme. The husband was to retain all other assets in his possession, and the wife was to retain all other assets in her possession. All other applications were dismissed.

Orders

Orders of the court

That the husband and wife shall forthwith do all acts and things necessary to distribute the monies standing to their joint credit in the Commonwealth Bank Account in equal shares between them.

That the wife shall forthwith transfer to the husband all her right, title, and interest in the Telstra shares in the joint names of the husband and wife.

That pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable from the superannuation interest of THE HUSBAND in the Emergency Services Superannuation Scheme – Beneficiary Account:

(a) THE WIFE shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $22,344 (provided that such base amount shall not exceed the value of the interest determined under s 90MT(2));

(b) There be a corresponding reduction in the superannuation interest of the member, THE HUSBAND to whom the splittable payment would have been made but for the Order.

That the operative time for these orders is four business days after service of the final sealed orders on the Emergency Services Superannuation Scheme – Beneficiary Account.

That there shall be liberty to apply to each party and the Trustee in relation to the implementation of the orders affecting the superannuation interest.

If, as a result of the termination of his employment, THE HUSBAND becomes entitled to a benefit prior to the Emergency Service Superannuation Board making a payment under s 22(f) of the Emergency Services Superannuation Act 1986, he shall provide to the Emergency Services Superannuation Board all such forms as shall be necessary to enable the Trustee to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require, within seven days of that entitlement arising.

That the husband shall retain all other assets in his possession or under his control.

That the wife shall retain all other assets in her possession or under her control.

That otherwise all applications are dismissed and the case removed from the list of cases awaiting finalisation.

10.

That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel and Senior Counsel.

11.

That if any party seeks a costs order they shall notify the other party and my Associate by 4.00pm on 2 December 2009.

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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