DUNCAN & DUNCAN (No.2) - [2015] FCCA 944

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUNCAN & DUNCAN (No.2)

[2015] FCCA 944

Catchwords:
FAMILY LAW – Property – enforcement proceedings – binding financial agreement – enforcement of obligation.

Legislation:

Family Law Act 1975 (Cth), ss.4, 90B, 90C, 90KA
Federal Circuit Court Rules 2001 (Cth), r.25B

Duncan & Duncan [2014] FCCA 2729

Applicant:

MS DUNCAN

Respondent:

MR DUNCAN

File Number:

MLC 10227 of 2012

Judgment of:

Judge O’Sullivan

Hearing date:

20 February 2015

Date of Last Submission:

20 February 2015

Delivered at:

Melbourne

Delivered on:

20 February 2015

REPRESENTATION

Counsel for the Applicant:

Ms Smallwood

Solicitors for the Applicant:

Pearsons Lawyers Pty Ltd

The Respondent:

By his solicitor Mr S. Rubera

Solicitors for the Respondent:

Sebastian Rubera & Associates

ORDERS

THE COURT DECLARES THAT:

The sum outstanding to the Applicant wife by way of enforcement of the Binding Financial Agreement dated 18 November 2009 is $85,905.12.

THE COURT ORDERS THAT:

It is ordered pursuant to the provisions of s.90KA(c) of the Family Law Act 1975 (“the Act”) that the aforementioned Binding Financial Agreement is to be enforced as if it were an order of the Court on application of the wife made on 12 December 2012.
The Respondent husband pay the sum of $85,905.12 to the Applicant wife in the following manner:
(a)That paragraph 3(b) to 3(d) inclusive of these Orders are binding on (omitted) (“the Trustee”) of (omitted) Superannuation Fund (“the Superannuation Fund”) member number (omitted).
(b)That pursuant to section 90MT(1)(b) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the husband’s interest in the Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount of 100% and there be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made but for these orders.
(c)That Order 3(b) has effect from the operative time and that the operative time for such Order be four (4) business days after the service of a sealed copy of these Orders made by the Court on the Trustee of the Superannuation Fund.
(d)That the Trustee of the Superannuation Fund, in accordance with the obligations set out under the Act and the Regulations, do all acts and things and sign all such documents as may be necessary to calculate the entitlement of the Wife and make payment to the Wife in accordance with these Orders and to give effect to these Orders.
(e)The balance outstanding by cash payment be made by 4.00 pm on 20 April 2015 to the wife’s solicitors, Pearsons Lawyers Pty Ltd.
The Applicant file and serve all material and written submissions in relation to her application for costs by not later than 4.00 pm on 6 March 2015.
The Respondent (and if necessary his legal representative separately) file and serve all material and written submissions in relation to the application for costs by not…

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 DUNCAN & DUNCAN (No.2)

Details

AGLC: DUNCAN & DUNCAN (No.2) [2015] FCCA 944
Case: [2015] FCCA 944
Decision Date: 20 February 2015

CaseChat Overview and Summary

In *Duncan & Duncan (No.2)*, Judge O’Sullivan of the Federal Circuit Court of Australia considered an application by the wife for the enforcement of a Binding Financial Agreement dated 18 November 2009. The dispute concerned the sum outstanding to the wife under this agreement, which the husband did not oppose.

The primary legal issue before the Court was to determine the precise sum outstanding under the Binding Financial Agreement and to make orders for its enforcement. This involved considering the application of various provisions of the *Family Law Act 1975* (Cth) and the *Family Law (Superannuation) Regulations 2001* (Cth) to facilitate the payment of the outstanding amount, including through the husband's superannuation interest.

The Court reasoned that the Binding Financial Agreement was to be enforced as if it were an order of the Court, pursuant to s 90KA(c) of the Act. The Court declared the sum outstanding to be $85,905.12. To give effect to this, the Court ordered that the husband pay this sum to the wife. A significant portion of this payment was to be made by directing the Trustee of the husband's superannuation fund to pay the wife an amount calculated in accordance with Part 6 of the *Family Law (Superannuation) Regulations 2001*, using a base amount of 100% of any splittable payment, pursuant to s 90MT(1)(b) of the Act. The remaining balance was to be paid in cash by a specified date. The Court also made directions regarding the filing and service of submissions in relation to costs.

Orders

Orders of the court

THE COURT DECLARES THAT:

The sum outstanding to the Applicant wife by way of enforcement of the Binding Financial Agreement dated 18 November 2009 is $85,905.12.

THE COURT ORDERS THAT:

It is ordered pursuant to the provisions of s.90KA(c) of the Family Law Act 1975 (“the Act”) that the aforementioned Binding Financial Agreement is to be enforced as if it were an order of the Court on application of the wife made on 12 December 2012.

The Respondent husband pay the sum of $85,905.12 to the Applicant wife in the following manner:

(a) That paragraph 3(b) to 3(d) inclusive of these Orders are binding on (omitted) (“the Trustee”) of (omitted) Superannuation Fund (“the Superannuation Fund”) member number (omitted).

(b) That pursuant to section 90MT(1)(b) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the husband’s interest in the Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount of 100% and there be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made but for these orders.

(c) That Order 3(b) has effect from the operative time and that the operative time for such Order be four (4) business days after the service of a sealed copy of these Orders made by the Court on the Trustee of the Superannuation Fund.

(d) That the Trustee of the Superannuation Fund, in accordance with the obligations set out under the Act and the Regulations, do all acts and things and sign all such documents as may be necessary to calculate the entitlement of the Wife and make payment to the Wife in accordance with these Orders and to give effect to these Orders.

(e) The balance outstanding by cash payment be made by 4.00 pm on 20 April 2015 to the wife’s solicitors, Pearsons Lawyers Pty Ltd.

The Applicant file and serve all material and written submissions in relation to her application for costs by not later than 4.00 pm on 6 March 2015.

The Respondent (and if necessary his legal representative separately) file and serve all material and written submissions in relation to the application for costs by not later than 4.00 pm on 27 March 2015.

The Applicant file and serve any further material in reply by not later than 4.00 pm on 7 April 2015.

AND THE COURT NOTES:

The parties consent to the decision in relation to costs being dealt with on the papers after the conclusion of the parties filing their respective submissions unless requested otherwise in written submissions.

Once the parties have filed their respective written submissions they are to email a copy in word format to associate.judgeo’sullivan@federalcircuitcourt.gov.au as soon as practicable.

The respondent did not oppose orders (1), (2) and (3).

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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