Donovan and Hargrave (No.2) - [2013] FCCA 147

FEDERAL CIRCUIT COURT OF AUSTRALIA

DONOVAN & HARGRAVE (NO.2)

[2013] FCCA 147

Catchwords:
FAMILY LAW – Property – Application for property settlement – superannuation splitting order – asset pool – amounts added back – contributions of the parties – where evidence of the parties differs about date of separation – where applicant claims that the parties did not separate until a year after they were divorced – length of marriage to be calculated from date of the parties’ wedding until the date the parties’ divorce became final – where applicant claims that the respondent gambled large sums of money – adjustments under Family law Act 1975 s.75(2) – where children under 18 reside with Respondent.

Legislation:

Family Law Act 1975, ss.44, 75, 79, 81, 90MJ

Family Law (Superannuation) Regulations 2001 Part 6, r.14F
Superannuation Industry (Supervision) Regulations 1994 rr.7A.03, 7A.06, 7A.12

Cases cited:
Donovan & Hargrave [2011] FMCAfam 1468
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
Stanford v Stanford [2012] HCA 52

Applicant:

MS DONOVAN

Respondent:

MR HARGRAVE

File Number:

PAC 1122 of 2009

Judgment of:

Judge Scarlett

Hearing date:

24 September 2012

Date of Last Submission:

24 September 2012

Delivered at:

Sydney

Delivered on:

26 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr Jamieson

Solicitors for the Applicant:

Gibson Howlin Lawyers

Counsel for the Respondent:

The Respondent appeared in person

ORDERS

The Respondent is to pay to the Applicant the sum of $50,000.00 by way of settlement of property within three (3) months of the date of these Orders.
A base amount of $39,808.95 is allocated, as required by subsection 90MJ(1)(c) of the Family Law Act 1975, to the Applicant MS DONOVAN out of the interest of the Respondent MR HARGRAVE in the [T] Superannuation fund.
In accordance with subsection 90MJ(1)(c) of the Family Law Act 1975:
(a)The Applicant MS DONOVAN is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount referred to in Order (2) above:
(b)The entitlement of the Respondent MR HARGRAVE to payments out of his interest in the [T] Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable is correspondingly reduced by force of these Orders.
The Trustee of the [T] Superannuation Fund, [omitted] Pty Limited (the Trustee) shall do all acts and things 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 Applicant MS DONOVAN by Order (2) above;
(b)pay the entitlement whenever the Trustee makes a splittable payment out of the interest of the Respondent MR HARGRAVE in the [T] Superannuation Fund: and
(c)That after service of the payment split a notice, pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the Applicant MS DONOVAN shall do all such acts and things as may be necessary, including but not limited to, exercising…

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.

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Details

Case: [2013] FCCA 147
Decision Date: 26 April 2013

CaseChat Overview and Summary

In *Donovan and Hargrave (No.2)*, Judge Scarlett considered an application by Ms Donovan (the Applicant) against Mr Hargrave (the Respondent) concerning the settlement of property. The dispute involved the division of superannuation interests.

The court was required to determine the appropriate allocation of a base amount from the Respondent's interest in the [T] Superannuation fund to the Applicant, and to make orders for the calculation and payment of this entitlement in accordance with the *Family Law Act 1975* and the *Family Law (Superannuation) Regulations 2001*. The court also needed to address the obligations of the Trustee of the superannuation fund in facilitating this payment split.

The court ordered that the Respondent pay the Applicant $50,000 by way of property settlement within three months. Crucially, a base amount of $39,808.95 was allocated to the Applicant from the Respondent's interest in the [T] Superannuation fund, pursuant to s 90MJ(1)(c) of the *Family Law Act 1975*. This allocation reduced the Respondent's entitlement to payments from the fund. The Trustee was directed to calculate and pay the Applicant's entitlement, and the Applicant was to take necessary steps to roll over or transfer these benefits to a fund of her choosing. The parties were put on notice that payments made after the transfer of benefits would not be splittable, and the Trustee's obligations would cease upon such transfer. The operative time for the orders was four business days after service on the Trustee, and provisions were made for the filing of submissions regarding costs.

Orders

Orders of the court

The Respondent is to pay to the Applicant the sum of $50,000.00 by way of settlement of property within three (3) months of the date of these Orders.

A base amount of $39,808.95 is allocated, as required by subsection 90MJ(1)(c) of the Family Law Act 1975, to the Applicant MS DONOVAN out of the interest of the Respondent MR HARGRAVE in the [T] Superannuation fund.

In accordance with subsection 90MJ(1)(c) of the Family Law Act 1975:

(a) The Applicant MS DONOVAN is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount referred to in Order (2) above:

(b) The entitlement of the Respondent MR HARGRAVE to payments out of his interest in the [T] Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable is correspondingly reduced by force of these Orders.

The Trustee of the [T] Superannuation Fund, [omitted] Pty Limited (the Trustee) shall do all acts and things 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 Applicant MS DONOVAN by Order (2) above;

(b) pay the entitlement whenever the Trustee makes a splittable payment out of the interest of the Respondent MR HARGRAVE in the [T] Superannuation Fund: and

(c) That after service of the payment split a notice, pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the Applicant MS DONOVAN shall do all such acts and things as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the interest of the Respondent MR HARGRAVE in the [T] Superannuation Fund to a fund of her choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

The parties NOTE that:

(a) pursuant to r.14F of the Family Law (Superannuation) Regulations 2001 any payments from the Respondent’s superannuation interest made after the Trustee has rolled over or transferred the transferable benefits to a fund of the Applicant’s choosing are not splittable payments; and

(b) the Trustee will be relieved of its obligations to calculate and split payments under these Orders in the event that the transferable benefits are transferred to a fund of the Applicant’s choosing in accordance with the requirements under the Superannuation Industry (Supervision) Regulations 1994.

The operative time for these Orders is four (4) business days after the date of service of a sealed copy of these Orders on the Trustee.

Written submissions in support of any application for costs are to be filed and served within 21 days of the date of these Orders and written submissions in opposition to any such application are to be filed and served within a further period of 14 days.

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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