Darcy & Darcy - [2011] FMCAfam 126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DARCY & DARCY

[2011] FMCAfam 126

FAMILY LAW – Property – 16 year relationship – modest non-superannuation asset pool – husband in receipt of a hurt on duty police pension – whether a splitting order should be made in favour of the wife.

Family Law Act 1975, ss.79, 75, 90MS
Police Regulation (Superannuation)Act 1906, ss.10, 14K,14P

C & C (2005) 33 FamLR 414
M & M (2006) 37 FamLR 150
Norbis v Norbis (1986) FLC 91-713
Pierce & Pierce (1999) FLC 92-844
Schmidt & Schmidt [2009] FamCA 1386
T & T (2006) FLC 93-263

Police Superannuation and the Family Law Act, paper dated 13 August 2010 presented to the Mid-North Coast Law Society Conference by G Levick

Applicant:

MS DARCY

Respondent:

MR DARCY

File Number:

NCC 902 of 2009

Judgment of:

Terry FM

Hearing dates:

24 August & 6 October 2010

Date of Last Submission:

6 October 2010

Delivered at:

Newcastle

Delivered on:

4 March 2011

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Byrnes

Solicitors for the Applicant:

Byrnes & Cox Lawyers

Counsel for the Respondent:

Mr Boyd

Solicitors for the Respondent:

Harris Wheeler Lawyers

ORDERS

That within 42 days of the date of the orders the wife shall pay the amount required to discharge the mortgage registered in favour of the Commonwealth Bank over Property W being the whole of the land comprised in Certificate of Title folio identifier [omitted] (“the Property W property”).
That contemporaneously with the wife complying with Order (1) the husband shall sign all documents and do all acts and things required to transfer to the wife at the wife’s expense the whole of his right title and interest in the Property W property.
That the wife shall indemnify the husband and keep him indemnified from liability for the debt to the Commonwealth Bank and for all rates taxes and outgoings owing in respect of the Property W property.
That a base amount of $78,074.05 is allocated as required by s.90MT(4) of the Family Law Act 1975 to MS DARCY out of the interest of MR DARCY in the Police Superannuation Scheme.
That in accordance with s.90MT(1)(a) of the Family Law Act:
(i)the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(ii)the husband’s entitlement to payments out of his interest in the Police Superannuation Scheme and the entitlements of any person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.
That the Trustee of the Police Superannuation Scheme (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations2001, the entitlement created for the wife by order 4 of these Orders; and
(b)pay the entitlement whenever the Trustee makes a splittable payment out of…

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 Darcy & Darcy

Details

AGLC: Darcy & Darcy [2011] FMCAfam 126
Case: [2011] FMCAfam 126
Decision Date: 4 March 2011

CaseChat Overview and Summary

In the case of Darcy and Darcy, the Federal Circuit and Family Court of Australia was required to make orders in relation to the distribution of property and superannuation between the parties. The legal issues that arose in this case involved the division of property and superannuation between the husband and wife in accordance with the Family Law Act 1975.

The court found that the wife was entitled to be paid a certain amount from the husband's superannuation funds, as well as the discharge of a mortgage over a property in favour of the Commonwealth Bank. The court also found that the wife was entitled to the husband's interest in the property, and that the husband was to indemnify the wife for any debts or liabilities in respect of the property.

The court made orders that the wife was to pay the amount required to discharge the mortgage over the property, and that the husband was to transfer his interest in the property to the wife. The court also made orders that the wife was to be paid a certain amount from the husband's superannuation funds, and that the trustees of the relevant funds were to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001. The court found that the orders bound the trustees of the relevant funds to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

In conclusion, the court made orders that the wife was to pay the amount required to discharge the mortgage over the property, and that the husband was to transfer his interest in the property to the wife. The court also made orders that the wife was to be paid a certain amount from the husband's superannuation funds, and that the trustees of the relevant funds were to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001. The court found that the orders bound the trustees of the relevant funds to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

Orders

Orders of the court

That within 42 days of the date of the orders the wife shall pay the amount required to discharge the mortgage registered in favour of the Commonwealth Bank over Property W being the whole of the land comprised in Certificate of Title folio identifier [omitted] (“the Property W property”).

That contemporaneously with the wife complying with Order (1) the husband shall sign all documents and do all acts and things required to transfer to the wife at the wife’s expense the whole of his right title and interest in the Property W property.

That the wife shall indemnify the husband and keep him indemnified from liability for the debt to the Commonwealth Bank and for all rates taxes and outgoings owing in respect of the Property W property.

That a base amount of $78,074.05 is allocated as required by s.90MT(4) of the Family Law Act 1975 to MS DARCY out of the interest of MR DARCY in the Police Superannuation Scheme.

That in accordance with s.90MT(1)(a) of the Family Law Act:

(i) the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

(ii) the husband’s entitlement to payments out of his interest in the Police Superannuation Scheme and the entitlements of any person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.

That the Trustee of the Police Superannuation Scheme (“the Trustee”) shall do all such acts and things and sign all such 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 created for the wife by order 4 of these Orders; and

(b) pay the entitlement whenever the Trustee makes a splittable payment out of the husband’s interest in the Police Superannuation Scheme.

That pursuant to paragraph 90MT(1)(b) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of MR DARCY in The Employee Retirement Plan, held within The [U] Super Scheme of which [M] Nominees Pty Limited is the trustee, MS DARCY shall be entitled to be paid 100% of the husband’s entitlement, and there be a corresponding reduction in the entitlement the husband would have had in the Employee Retirement Plan but for this order.

That having been accorded procedural fairness, these orders bind the trustee of The Employee Retirement Plan, held within The [U] Super Scheme, to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

That pursuant to paragraph 90MT(1)(b) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of MR DARCY in the [F] Super Fund, MS DARCY shall be entitled to be paid 100% of the husband’s entitlement, and there be a corresponding reduction in the entitlement the husband would have had in the [F] Super Fund, but for this order.

10.

That having been accorded procedural fairness, these orders bind the trustee of the [F] Super Fund to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

11.

That each of the superannuation splitting orders shall take effect from the operative time and the operative time for each of the orders is the fourth business day after the orders are served on the trustee of the relevant fund.

12.

That unless specified in these orders and except for the purpose of enforcing payment of any money due under these orders or subsequent orders, each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in possession of each party and superannuation standing in their respective names.

13.

That in the event that either party refuses or neglects to comply with the provisions of these orders the Registrar of the Federal Magistrates Court of Australia at Newcastle is hereby appointed to execute all deeds and documents in the name of the defaulting party.

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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