Edwards & Edwards - [2008] FMCAfam 1025

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EDWARDS & EDWARDS

[2008] FMCAfam 1025

FAMILY LAW – Property – wife’s entitlement to husband’s pension and super fund.

Family Law Act 1975, ss.75(2), 79(4)

C v C (2005) 33 Fam LR 414
West & Green (1993) FLC 92-395

Applicant:

MS EDWARDS

Respondent:

MR EDWARDS

File Number:

AYC 541 of 2007

Judgment of:

Henderson FM

Hearing date:

6 August 2008

Date of Last Submission:

6 August 2008

Delivered at:

Albury

Delivered on:

7 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr Blackman

Solicitors for the Applicant:

Weatherly and Bartram, Albury, NSW

Counsel for the Respondent:

Ms Wheeler

Solicitors for the Respondent:

Terence O’Connor, Lawnton, QLD

ORDERS

Pursuant to s.90MT(1)(a) of the Family Law Act, that Mr Edwards a member of the Superannuation Fund First State Super and FSS Trustee Corporation ACN [1] Trustee of the superannuation fund do all acts and things, sign all documents and give all consents so that whenever a splittable payment becomes available to Mr Edwards from his interest in the Superannuation Fund that Ms Edwards is entitled to an amount calculated in accordance with Part 6 of the Family Law Superannuation Regulations 2001, using a base amount of $84,000 and there is a corresponding reduction in the entitlement of Mr Edwards had these orders not been made.
That for the purpose of the above order:
(a)The base amount to be allocated to Ms Edwards in the Superannuation Fund is $84,000.
(b)That the operative time for this order is 8 August 2008 and this order is to take effect from 8 August 2008.
The Husband transfer to the Wife all his right title or interest in the [B] Time Share property currently in the joint names of the Husband and Wife.
Unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
(b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

IT IS NOTED that publication of this judgment under the pseudonym Edwards & Edwards is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ALBURY

AYC 541 of 2007

MS EDWARDS

Applicant

And

MR EDWARDS

Respondent

REASONS FOR JUDGMENT

Introduction

The matter of Edwards was a property hearing listed on 6 August 2008. Mr Blackman of counsel represented the applicant…

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 Edwards & Edwards

Details

AGLC: Edwards & Edwards [2008] FMCAfam 1025
Case: [2008] FMCAfam 1025
Decision Date: 7 August 2008

CaseChat Overview and Summary

The case of Edwards & Edwards involved a dispute between the parties over the division of assets, specifically superannuation and a timeshare property, following their divorce. The matter was heard and determined by the Family Court of Australia. The central issues before the court were the allocation of superannuation entitlements and the division of a timeshare property held in joint names.

The court was required to decide whether Ms Edwards was entitled to a specific amount from the husband's superannuation fund, as well as the appropriate division of the timeshare property. The legal issues also included the interpretation of relevant provisions in the Family Law Act and the Family Law Superannuation Regulations 2001.

The court found in favour of Ms Edwards, determining that she was entitled to a base amount of $84,000 from the husband's superannuation fund, with a corresponding reduction in the husband's entitlement. The court issued an order pursuant to section 90MT(1)(a) of the Family Law Act, directing the husband and the trustee of the superannuation fund to execute all necessary documents and provide all required consents to effect this division. The court also ordered the transfer of the husband's interest in the timeshare property to the wife. Additionally, the court clarified the ownership and liabilities associated with other assets, including bank accounts, insurance policies, and superannuation entitlements, by deeming them to be in the possession of the respective party named on the relevant records or beneficiary lists. Each party was held solely liable for any liabilities associated with the assets they received under the court's orders.

Orders

Orders of the court

Pursuant to s.90MT(1)(a) of the Family Law Act, that Mr Edwards a member of the Superannuation Fund First State Super and FSS Trustee Corporation ACN [1] Trustee of the superannuation fund do all acts and things, sign all documents and give all consents so that whenever a splittable payment becomes available to Mr Edwards from his interest in the Superannuation Fund that Ms Edwards is entitled to an amount calculated in accordance with Part 6 of the Family Law Superannuation Regulations 2001, using a base amount of $84,000 and there is a corresponding reduction in the entitlement of Mr Edwards had these orders not been made.

That for the purpose of the above order:

(a) The base amount to be allocated to Ms Edwards in the Superannuation Fund is $84,000.

(b) That the operative time for this order is 8 August 2008 and this order is to take effect from 8 August 2008.

The Husband transfer to the Wife all his right title or interest in the [B] Time Share property currently in the joint names of the Husband and Wife.

Unless otherwise specified in these orders:

(a) Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.

(b) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.