Fenton and Fenton - [2016] FCCA 135

FEDERAL CIRCUIT COURT OF AUSTRALIA

FENTON & FENTON

[2016] FCCA 135

Catchwords:
FAMILY LAW – Property – property pool – contributions – s.75(2) factors – spousal maintenance.

Legislation:

Family Law Act 1975 (Cth)

Bevan & Bevan [2013] FamCAFC 116
Crawford & Crawford (1979) FLC 90-647

Gollings v Scott (2007) FLC 93-319

Kowaliwv v Kowaliwv (1981) FLC 91-029
AJO & GRO (2005) FLC 93-218
Russell v Russell (1999) FLC 92-877
Stanford v Stanford [2012] 87 ALJR 74
Townsend v Townsend (1995) FLC 92-569

Applicant:

MS FENTON

Respondent:

MR FENTON

File Number:

MLC 4310 of 2015

Judgment of:

Judge McGuire

Hearing date:

14 December 2015

Date of Last Submission:

14 December 2015

Delivered at:

Melbourne

Delivered on:

9 February 2016

REPRESENTATION

Counsel for the Applicant:

Ms R Wheeler

Solicitors for the Applicant:

Adrian Abrahams Family Lawyers

Counsel for the Respondent:

Mr J Gates

Solicitors for the Respondent:

Mackinnon Jacobson Lawyers

ORDERS

The property of the parties (excluding superannuation entitlements) be divided as to 70% of the net value to the wife and 30% of the net value to the husband.
For the purpose of order 1 hereof:
(a)The former matrimonial home situate at Property J in Victoria be sold as agreed between the parties but failing agreement then the parties or either of them have liberty to apply in respect of the terms of the sale.
(b)Each of the parties retain those items of chattels, personalty and motor vehicles currently in the party’s possession and control but subject to being wholly responsible for and to indemnify the other party in respect of any and all liabilities attaching to such asset(s).
For the purposes of these orders:
(a)the Wife is the member spouse;
(b)the Husband is the non-member spouse;
(c)the superannuation fund is the (omitted) Superannuation (“the Fund”).
Paragraphs 3 to 9 of these orders are binding on the trustee of the Fund.
In accordance with section 90MT(1)(a) of the Family Law Act 1975:
(a)the husband is entitled to the sum of nineteen thousand, four hundred and forty five dollars and zero cents ($19,458.00); and
(b)there be a corresponding reduction in the entitlement of the wife to whom the splittable payment would have been made but for these orders.
Order 5 is to have effect from the operative time.
The operative time for the purposes of these orders is four business days after the day of service of these orders upon the trustees of the Fund.
Until the happening of any of:
(a)the establishing of a separate account in the name of the husband; or
(b)the transfer or rolling over into another superannuation fund of the payment split created by order 5; or
(c)the husband executing a waiver of rights within the meaning of s.90MZA of the Family Law Act 1975 in relation to the payment split created by order 5; or
(d)the husband satisfying a condition of release and being paid the payment split which was created by order 5 hereof,
the wife be and is restrained by herself, her servants or…

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 Fenton and Fenton

Details

AGLC: Fenton and Fenton [2016] FCCA 135
Case: [2016] FCCA 135
Decision Date: 9 February 2016

CaseChat Overview and Summary

In Fenton and Fenton, heard before Judge McGuire, the parties sought orders for the division of their property. The dispute concerned the extent to which their respective superannuation entitlements should be included in the property pool and how the net value of the remaining property should be divided.

The court was required to determine the appropriate percentage split of the net value of the parties' property, excluding superannuation entitlements. Additionally, the court had to consider the treatment of the former matrimonial home and the chattels in possession of each party. A significant issue was the division of the wife's superannuation entitlement, specifically the amount to be paid to the husband from the superannuation fund and the mechanism for this payment.

The court ordered that the net value of the parties' property, excluding superannuation, be divided 70% to the wife and 30% to the husband. The former matrimonial home was to be sold, with liberty to apply regarding sale terms if agreement could not be reached. Each party was to retain their current chattels and motor vehicles, subject to indemnifying the other party for any liabilities attaching to those assets. Crucially, in accordance with section 90MT(1)(a) of the Family Law Act 1975, the husband was entitled to $19,458.00 from the wife's superannuation, with a corresponding reduction in the wife's entitlement. The operative time for this payment split was set as four business days after service of the orders on the superannuation fund's trustees. The court also imposed restraints on the wife regarding her superannuation to prevent it from becoming a non-splittable payment until certain conditions were met, including the establishment of a separate account for the husband or his receipt of the payment split. Liberty to apply was granted to the parties and the trustee of the Fund concerning the implementation of these superannuation-related orders.

Orders

Orders of the court

The property of the parties (excluding superannuation entitlements) be divided as to 70% of the net value to the wife and 30% of the net value to the husband.

For the purpose of order 1 hereof:

(a) The former matrimonial home situate at Property J in Victoria be sold as agreed between the parties but failing agreement then the parties or either of them have liberty to apply in respect of the terms of the sale.

(b) Each of the parties retain those items of chattels, personalty and motor vehicles currently in the party’s possession and control but subject to being wholly responsible for and to indemnify the other party in respect of any and all liabilities attaching to such asset(s).

For the purposes of these orders:

(a) the Wife is the member spouse;

(b) the Husband is the non-member spouse;

Paragraphs 3 to 9 of these orders are binding on the trustee of the Fund.

In accordance with section 90MT(1)(a) of the Family Law Act 1975:

(a) the husband is entitled to the sum of nineteen thousand, four hundred and forty five dollars and zero cents ($19,458.00); and

(b) there be a corresponding reduction in the entitlement of the wife to whom the splittable payment would have been made but for these orders.

Order 5 is to have effect from the operative time.

The operative time for the purposes of these orders is four business days after the day of service of these orders upon the trustees of the Fund.

Until the happening of any of:

(a) the establishing of a separate account in the name of the husband; or

(b) the transfer or rolling over into another superannuation fund of the payment split created by order 5; or

(c) the husband executing a waiver of rights within the meaning of s.90MZA of the Family Law Act 1975 in relation to the payment split created by order 5; or

(d) the husband satisfying a condition of release and being paid the payment split which was created by order 5 hereof,

the wife be and is restrained by herself, her servants or agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of her interest in the fund a non-splittable payment within the meaning of regs.12 or 13 of the Family Law (Superannuation) Regulations 2001.

Each party and the trustee of the Fund have liberty to apply in relation to the implementation of orders 3 to 9 inclusive.

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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