FAMILY COURT OF AUSTRALIA
| FANE & LEMOTT | [2013] FamCA 604 |
| FAMILY LAW – PROPERTY – Superannuation – parties’ superannuation interests considered separately from one another and separately from the tangible assets – the husband’s superannuation interest in the form of a police service pension valued by the methodology prescribed by the Family Law (Superannuation) (Method and Factors for Valuing Particular Superannuation Interests) Approval 2006 (No.2) (Cth) – the husband’s pension is paid at 90 per cent of his former salary for life – husband close to retirement age at which point he may elect to commute the pension either wholly or partially – superannuation splitting orders made in respect of the husband’s superannuation interest. FAMILY LAW – PROPERTY – Contributions – parties’ contributions to their superannuation interests and tangible assets considered and determined separately – adjustment made in husband’s favour in respect of tangible assets by reason of factors prescribed by ss 79(4)(d)-(g) and 75(2) of the Family Law Act 1975 (Cth). |
Evidence Act 1995 (Cth) s 191
| Family Law Act (1975) (Cth) ss 75, 79, 90MT, 90MZD, 106A Family Law Rules (Cth) r 14.06 Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (Cth) Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2006 (No.2)(Cth) Family Law (Superannuation) Regulations 2001 (Cth) regs 38, 43A Police Superannuation Regulation 2010 (NSW) regs 18, 19, 22, 23 Police Regulation (Superannuation) Act 1906 (NSW) ss 4, 14K, 14P, 14Q |
Bevan & Bevan [2013] FamCAFC 116
Chorn v Hopkins (2004) FLC 93-204
Crawford v Crawford (2013) 48 Fam LR 539
DJ & AJ (2006) FLC 93-289
Mallett v Mallett (1984) 156 CLR 605
Marriage of Coghlan (2005) 33 Fam LR 414
Marriage of Kennon (1997) 22 Fam LR 1
Norbis v Norbis (1986) 161 CLR 513
Omacini v Omacini (2005) 33 Fam LR 134
Schmidt & Schmidt [2009] FamCA 1386
Semperton v Semperton (2012) 47 Fam LR 626
Stanford v Stanford (2012) FLC 93-518
Trott & Trott (2006) FLC 93-263
Wheeldon & Wheeldon [2011] FamCA 40
| APPLICANT: | Ms Fane |
| RESPONDENT: | Mr Lemott |
| FILE NUMBER: | NCC | 877 | of | 2007 |
| DATE DELIVERED: | 20 August 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 29, 30, & 31 July & 7 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr R Maurice |
| SOLICITOR FOR THE APPLICANT: | Helen Volk Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr M Bateman |
| SOLICITOR FOR THE RESPONDENT: | Craney Family Solicitors |
Orders
The parties shall forthwith do all acts and things necessary to:
(a)Instruct and authorise the wife’s solicitor to pay all monies held by her in escrow for the parties in St George Bank account number …67 to the wife, of which monies the wife is declared the sole legal and beneficial owner (as between the parties);
(b)Close Bendigo Bank account number …69, held by them in joint names.
The husband shall do all acts and things necessary to pay to the wife the sum of $200,000 from Police Credit Union investment…
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- AGLC
- Fane & Lemott [2013] FamCA 604
- Case
- [2013] FamCA 604
- Decision Date
CaseChat Overview and Summary
The court was required to determine how the parties' respective contributions to their tangible assets and superannuation interests should be considered and valued. Specifically, the court needed to address the valuation and division of the husband's police service pension, which was a substantial asset and was approaching a point where the husband could elect to commute it. The court also had to consider adjustments to the property division based on factors prescribed by sections 79(4)(d)-(g) and 75(2) of the *Family Law Act 1975* (Cth).
Austin J determined the parties' contributions to their superannuation and tangible assets separately. The husband's police pension was valued in accordance with the methodology prescribed by the *Family Law (Superannuation) (Method and Factors for Valuing Particular Superannuation Interests) Approval 2006 (No.2) (Cth)*, with its value for the purposes of the orders fixed at $2,228,438. An adjustment was made in the husband's favour concerning tangible assets due to the factors outlined in sections 79(4)(d)-(g) and 75(2) of the Act.
The court made orders for the division of property, including the wife receiving sole ownership of a property at B Road, B, NSW, and being indemnified against related outgoings. A base amount of $298,748 was allocated to the wife from the husband's police superannuation interest, with further entitlements to be calculated and paid in accordance with the *Family Law (Superannuation) Regulations 2001*. The orders were made binding on the SAS Trustee Corporation as trustee of the Police Superannuation Scheme. Each party was declared the sole legal and beneficial owner of other assets in their possession, and each was solely liable for debts relating to those assets. Costs were reserved.
Orders
Orders of the court
1.
The parties shall forthwith do all acts and things necessary to:
(a) Instruct and authorise the wife’s solicitor to pay all monies held by her in escrow for the parties in St George Bank account number …67 to the wife, of which monies the wife is declared the sole legal and beneficial owner (as between the parties);
(b) Close Bendigo Bank account number …69, held by them in joint names.
2.
The husband shall do all acts and things necessary to pay to the wife the sum of $200,000 from Police Credit Union investment account number …8 forthwith upon maturity of the term deposit on or about 3 November 2013, of which monies the wife is declared the sole legal and beneficial owner (as between the parties).
3.
Pending compliance with Order 2 hereof, the husband is restrained from making any withdrawals from any account held by him with the Police Credit Union bearing account number …8 other than for the purpose of enabling his compliance with Order 2.
4.
The wife is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising the property described as B Road, B, NSW (“the property”).
5.
The wife shall indemnify and keep indemnified the husband against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the property.
6.
Declaration that the SAS Trustee Corporation as trustee of the Police Superannuation Scheme (“the trustee”) has been accorded procedural fairness in respect of the following superannuation splitting and ancillary orders.
7.
Order that these orders are binding upon the trustee.
8.
Declaration, pursuant to s 90MT(2) of the Family Law Act, that for the purpose of these orders the value of the husband’s interest in the Police Superannuation Scheme is determined to be $2,228,438 in accordance with the Family Law (Superannuation) Regulations 2001.
9.
Order that a base amount of $298,748 is allocated, as required by s 90MT(4) of the Family Law Act, to the wife (Ms Fane) out of the husband’s (Mr Lemott) interest in the Police Superannuation Scheme.
10.
Order, in accordance with s 90MT(1)(a) of the Family Law Act, that:
(a) The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b) The husband’s entitlement to payments out of his interest in the Police Superannuation Scheme, and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.
11.
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 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife pursuant to 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.
12.
Order that these orders shall have effect from the operative time, and for that purpose the operative time shall be 4 business days from the date of these orders.
13.
Unless otherwise provided by these orders:
(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed in the possession of the superannuant; and
(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession and any debts in their respective sole names.
14.
In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s.106A of the Family Law Act.
15.
Costs are reserved for 28 days.
16.
Any and all other outstanding applications are dismissed.
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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