Fletcher & Parkins (No 2)
[2024] FedCFamC1F 10
•24 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fletcher & Parkins (No 2) [2024] FedCFamC1F 10
File number(s): BRC 1728 of 2018 Judgment of: BAUMANN J Date of judgment: 24 January 2024 Catchwords: FAMILY LAW – PROPERTY – Where Reasons for Judgment were previously delivered – factual errors subsequently identified – Further findings made – Final property adjustment orders made Legislation: Family Law Act 1975 (Cth) Cases cited: Fletcher & Parkins [2022] FedCFamC1F 804
Semperton & Semperton (2012) 47 Fam LR 626
Smith v New South Wales Bar Association (1992) 176 CLR 256
Swaney & Ward (1988) FLC 91-928
Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 17 November 2022 Place: Brisbane Solicitor for the Applicant: Rostron Carlyle Rojas Lawyers Counsel for the Respondent: Mr M Drysdale KC Solicitor for the Respondent: Hopgood Ganim Lawyers ORDERS
BRC 1728 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FLETCHER
Applicant
AND: MS PARKINS
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
24 JANUARY 2024
THE COURT ORDERS:
1.That as and by way of property settlement pursuant to s 79 of the Family Law Act 1975 (Cth), the net property of the parties be adjusted on the following basis:
(a)47.5% to the wife; and
(b)52.5% to the husband.
2.That as part of the wife’s entitlement to property settlement, and subject to the payment by the wife to the husband of the sum set out at Order 4, the wife shall retain and/or receive as her absolute property, all her right, title and interest to and in, and the husband shall relinquish and/or transfer to the wife, all of his right, title and interest, if any, to and in the following within thirty (30) days from the date of these Orders being made:
(a)The property located at S Street, Suburb T in the State of Queensland, more particularly described as Lots 1 on Registered Plan … and Lots 2 and 3 on Registered Plan … Title Reference … registered in the parties’ joint names (“the Suburb T property”), and for this purpose:
(i)the parties cause the balance owing in respect of the joint Commonwealth Bank home loan account …08 to be paid from the joint Commonwealth Bank account …86;
(ii)the parties sign all documents and do all things necessary to discharge the mortgage secured against the property and to transfer the property unencumbered into the wife’s sole name; and
(iii)the wife thereafter be solely responsible for and indemnify and release the Husband with respect to all liabilities relating to the property;
(b)All monies held in accounts with any banks or financial institutions in the wife’s sole name;
(c)The personal belongings in the wife’s possession;
(d)Such furniture, chattels and household effects as agreed;
(e)Motor Vehicle 2 registration … registered in the joint names of the parties but in the wife’s possession and for this purpose, the parties do all acts and sign all documents necessary to transfer the motor vehicle to the wife, free of encumbrance, and the wife otherwise be solely responsible for all costs associated with the motor vehicle including running costs, insurance, maintenance and repair costs;
(f)The wife’s superannuation entitlements, subject to Order 8; and
(g)The balance in property and/or cash to effect an overall just and equitable property settlement to the wife as determined.
3.That as part of the husband’s entitlement to property settlement, the husband retain and/or receive as his absolutely property, all his right, title and interest to and in, and the wife shall relinquish and/or transfer to the husband, all of her right, title and interest, if any, to and in the following within thirty (30) days from the date of these Orders being made:
(a)Motor Vehicle 3 registration … registered in the joint names of the parties but in the Husband’s possession and for this purpose, the parties do all acts and sign all documents necessary to transfer the motor vehicle to the Husband, free of encumbrance, and the Husband otherwise be solely responsible for all costs associated with the motor vehicle including running costs, insurance, maintenance and repair costs;
(b)The husband’s Motor Vehicle 1 registration …;
(c)Funds withdrawn by the husband from the Commonwealth Bank home loan account …08 secured against the Suburb T property and retained by the husband in June 2017;
(d)All monies held in accounts with any banks or financial institutions in the husband’s sole name;
(e)The personal belongings in the husband’s possession;
(f)Such furniture, chattels and household effects as agreed;
(g)The husband’s superannuation entitlements;
(h)The husband’s share portfolio;
(i)The precious stones and gems;
(j)A superannuation split from the wife’s superannuation entitlement, pursuant to Order 9; and
(k)The husband’s entitlements as a member of the Superannuation Fund 1; and
(l)The balance in property and/or cash to effect an overall just and equitable property settlement to the husband as determined.
4.That the wife shall have sixty (60) days from the date of these Orders to pay to the husband the sum of $415,750 (“the cash payment”) on the following basis:
(a)From the said cash payment, the wife shall be entitled to offset the liability of the husband to the wife arising from the Order for costs made by the Federal Circuit Court of Australia on 21 January 2020, with such liability to include interest at the rates prescribed under the Family Law Act 1975 (Cth), as calculated and agreed by the parties, and failing agreement as to the calculation of interest, the parties shall have liberty to re-list the matter to enable the Court to determine that calculation;
(b)The wife shall inform the husband in writing within thirty (30) days of the date of this Order that she is able to raise finance so as to be in a position to make the cash payment; and
(c)If the wife is unable or unwilling to make the cash payment, the parties shall take all steps necessary to sign all such documents as are necessary to effect a sale of the Suburb T property, and the parties shall have liberty to apply for any necessary machinery orders that give effect to the sale of the Suburb T property, with the nett proceeds to be distributed so as to achieve the overall adjustment of the nett property of the parties in accordance with Order 1.
5.That the husband be solely responsible for and meet payment of all liabilities in the husband’s name (but excluding any liabilities specifically dealt with in these Orders) and the husband shall indemnify the wife from any liability howsoever arising thereunder.
6.That the wife be solely responsible for and meet payment of all liabilities in the wife’s name (but excluding any liabilities specifically dealt with in these Orders) and the wife shall indemnify the husband from any liability howsoever arising thereunder.
7.That subject to making the payments set out in Orders 2, 3 and 4 hereof, the parties shall do all acts necessary and sign all documents necessary to close their joint Commonwealth Bank accounts …86, …67, …57 and …23 after allowing for any unpresented cheques in favour of any third party, and transfer to the wife the credit balance of the said personal joint bank accounts.
8.That the parties sign all documents and do all things necessary to cause the wife to become the sole signatory in respect of the children’s Commonwealth Bank accounts …04 (Y’s account) and …89 (X’s account).
9.That in accordance with s 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $200,000 is allocated to the husband out of the wife’s (Ms Parkins’ member number …) superannuation with Superannuation Fund 2.
10.That in accordance with s 90XT(1)(a) of the Family Law Act 1975 (Cth):
(a)the husband (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the clause immediately preceding this clause of this Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)the entitlement of the wife in Superannuation Fund 2 (of the entitlement of such other person who becomes entitled to receive a payment out of the wife’s superannuation interest) is correspondingly reduced by force of this Order.
(c)that the Trustee of Superannuation Fund 2, AC Limited (“the Trustee”), shall do all acts and things and sign all such documents as may be necessary to:
(i)calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) the entitlement awarded to the Husband in the clause immediately preceding this clause of this Order; and
(ii)pay the entitlement whenever the Trustee makes a splittable payment from the wife’s superannuation interest in Superannuation Fund 2.
(d)that this Order has effect from the operative time, and the operative time for the purposes of this Order is four (4) business days after a certified copy of these Orders are served on the Trustee of Superannuation Fund 2.
11.That save and except for the property and financial resources dealt with pursuant to the terms of these Orders, each party shall retain as his or her own property absolutely all assets and/or financial resources of whatsoever description and wheresoever situate of which that party is the legal owner of and/or which is/are in the possession of and/or under the control of that party as at the date of these Orders.
12.That unless otherwise provided for in these Orders, each party shall do all acts and sign all documents to give full force and effect to the terms of these Orders. In the event either party refuses or neglects to comply with the provision of these Orders within seven (7) days of a written requesting to do so by the other party, then a Registrar of this Court shall be appointed to execute all documents in the name of the party necessary to give validity and operation to the terms of these Orders.
13.That save and except as otherwise provided for in these Orders, the transferee spouse or the spouse receiving the benefit of a transaction pursuant to these Orders shall prepare all documentation necessary at their sole expense to give effect to the provisions of these Orders at their cost and further be responsible for the payment of any registration fees in relation to the transfer of the property into their sole name.
14.That any duty payable on any transactions arising from these Orders or any documents executed pursuant to these Orders shall be paid by the transferee spouse or the spouse receiving the benefit of such transfer or transaction.
15.That either party shall have liberty to apply to this Honourable Court upon the giving of seven (7) days’ notice in writing to the other party in relation to interpretation and/or enforcement of the terms and conditions hereof.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fletcher & Parkins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 28 October 2023, the Court delivered Reasons in this matter and pronounced final parenting orders (see Fletcher & Parkins [2022] FedCFamC1F 804) (“the earlier Reasons”).
The Court was not in a position to pronounce final property orders – although at [71]–[127], the Court dealt with the evidence relating to the contested property issues and made certain findings.
On 28 October 2022, the Court ordered the property proceedings be listed for further submissions on 17 November 2022.
Subsequent to that order, on 16 November 2022, further written submissions were filed by and on behalf of the wife and relevantly, it was contended, inter alia, that:
(a)there were factual errors contained in the earlier Reasons that related specifically to the treatment of the husband’s superannuation entitlement with Superannuation Fund 1, dealt with further below;
(b)prior to the issue of final orders, the Court may amend or vary its Reasons (see Swaney & Ward (1988) FLC 91-928; Smith v New South Wales Bar Association (1992) 176 CLR 256);
(c)where, at paragraphs 102 to 103, the earlier Reasons refer to the husband’s Superannuation Fund 1 entitlement being in its payment phase and being a pension that cannot be commuted nor alienated, this is factually incorrect;
(d)the husband’s Superannuation Fund 1 entitlement therefore remains in its growth phase, consistent with the evidence of the single expert Mr JJ in accordance with his affidavit filed 17 December 2019;
(e)in circumstances where the husband, in his final submissions filed 20 December 2021, contended that the husband’s Superannuation Fund 1 entitlement should be treated as available for division between the parties (and had been valued at $453,889), it is appropriate to adjust the nett pool available for division between the parties to a total of $2,971,611.
When the matter came before the Court on 17 November 2022, the solicitor for the husband made brief oral submissions, merely contending they did not agree with the wife’s submissions.
DID A FACTUAL ERROR OCCUR?
I am satisfied that a factual error did occur, as asserted by the wife, and although such acknowledgement is, to some extent, embarrassing, the need to correct the factual error before considering what orders do achieve justice and equity between the parties, is patently necessary. I am satisfied, relying on authority already identified by King’s Counsel for the wife, that as final orders have not been pronounced, corrections as required to the earlier Reasons for Judgment, to ensure the interests of justice and the need to achieve, if possible, finality of litigation, is a power capable, in my discretion, of being exercised. I do so.
On this basis, I make the following further findings – some of which are made in lieu of the earlier published Reasons based on the incorrect factual determination of the nature of the husband’s Superannuation Fund 1 entitlement.
POOL
At paragraph 105 of the earlier published Reasons, and for findings or otherwise of various items, the nett pool was calculated to be $2,537,721 at the time of the hearing in May 2020.
I note that neither party has sought to further reopen the evidence in this matter so as to, for example, seek to challenge the adoption of the then agreed valuation for the Suburb T property of $1,500,000 – a value consistent with expert evidence adduced as at 21 October 2021.
Where both parties have been legally represented and notwithstanding the time that has elapsed since October 2021, I have elected not to invite the parties or to enquire of them, whether they wish, jointly or individually, to seek to adduce further evidence of any change of value of the most significant asset. I did seriously contemplate doing so – especially where there has been a further unacceptable delay by the Court in publishing these supplementary Reasons – but ultimately, in the circumstances described, I decided in the absence of any application to further reopen, the Court should proceed to finalise the matter. What follows from the final property orders being pronounced is not a matter for me.
There was a dispute between the parties whether the husband’s interest in his Superannuation Fund 1 equates to $433,889 (as contended by the wife) or $365,321 (as contended by the husband). To resolve this issue, reference is required to be made to:
(a)the husband’s written submissions filed 20 December 2021 where he adopts a value of $365,321 (at paragraph 10 – balance sheet) without attribution to the source of that value;
(b)the wife’s written submissions filed 20 December 2021 at paragraph 35(b) originally asserted that:
The Wife contends that where no splitting order is sought, that the Husband’s ongoing pension entitlement ought be treated by the Court as a valuable financial resource available to the Husband (Welch & Abney [2016] FamCAFC 271; Welch & Abney [2018] FamCA 135 at [83]).
with a value of $433,889.
However, the wife’s submissions did not contend in annexure B that it be treated as a financial resource – but rather a form of property. Notwithstanding this slight confusion, the wife now clearly contends (as did the husband), the value of the husband’s Superannuation Fund 1 entitlement be included in the pool of assets – but at a value of $433,889.
The figure of $433,889 is consistent with the evidence of Mr JJ who, in answer to question 6 in a letter of instructions dated 13 December 2019, namely:
In the event that the Husband had been approved for an early release of his preserved benefit on medical grounds as at 10 September 2019 and commenced the pension of $19,535.39, do you agree that the combined superannuation interests of the Husband would have been $433,889, being the Family Law value of the pension of $321,702 plus the member and ancillary components of $112,187?
He answered (at page 2 of his report) – “Agreed - $433,889”.
In these circumstances, I adopt a valuation of $433,889 and therefore the nett pool of interests set out at paragraph 105 of the earlier Reasons increases to $2,971,610.
CONTRIBUTIONS
At paragraphs 106 to 117 of the earlier Reasons, I analysed the evidence and contributions – and specifically (at paragraph 107) took into account the husband’s initial member benefit in the MSBS at $45,056. This was a figure conceded by the husband in addendum submissions filed 21 December 2021 (paragraph 4).
As a result, the inclusion of the capital value of the Superannuation Fund 1 entitlement of the husband as discussed above, would not cause me to vary the earlier finding that contribution-based entitlements should be assessed as to 52.5% to the wife and 47.5% to the husband.
SECTION 75(2) FACTORS
At paragraphs 119 to 120 of the earlier Reasons, I identified the relevant factors before concluding that an overall adjustment in favour of the husband is appropriate at a level of 5%. On the increased pool of $2,971,610, this would represent a differential of assets of approximately $297,000.
In the written submissions dated 16 November 2022, at paragraphs 15 to 18, the husband’s income from his Financial Statement is revealed in an amount of $1,150 per week. It would amount to a form of double counting to take the income stream from Superannuation Fund 1 into account as a s 75(2) factor (see Semperton & Semperton (2012) 47 Fam LR 626).
I regard the invitation by the wife in those submissions to calculate the cash component payable by the wife (on the basis she retains the Suburb T property) by adopting an overall adjustment of 52.5% to the husband and 47.5% to the wife, as a concession that the finding is not, for present purposes, challenged.
WHAT ORDERS ACHIEVE JUSTICE AND EQUITY FOR BOTH PARTIES?
Based on the increased pool of nett interests of $2,971,610, the husband’s 52.5% share amounts to $1,560,096 made up of:
His property interests (as per paragraph 123)
$510,459
Superannuation Fund 1
$433,889
Superannuation split
$200,000
Cash payment by the wife
$415,748
$1,560,096
from which cash payment must be deducted the costs award (and interest) ordered by Judge Middleton.
The wife’s 47.5% share of the pool of $2,971,610 amounts to $1,411,514 made up of:
Her nett property interests (as per paragraph 125)
$1,827,262
Less cash payment to the husband
$415,748
$1,411,514
At paragraph 126 of the earlier Reasons, I identified three issues upon which I sought further submissions. Perhaps the parties were distracted by the issues already discussed relating to the Superannuation Fund 1 issue, however in the absence of any submissions from the husband, I determine in the exercise of my discretion, that:
(a)the wife shall have 30 days to confirm her ability to secure the necessary finance to make the required payment to the husband, and thereafter 30 days to complete the transaction;
(b)I adopt, in the absence of any alternate submissions from the husband, the proposal for sale in the husband’s draft order if that was to become necessary; and
(c)the husband did not engage in the invitation set out at paragraph 126(c) as to the wife’s proposal (clearly to reduce the “cash” payment to be made by the wife to the husband), to have a superannuation split to the husband from her Superannuation Fund 2 of $200,000, as raised at paragraph 80 of the wife’s submissions filed 20 December 2021. The husband’s financial circumstances reflect that he is able to meet his living expenses from the various income components. I find the husband has been given a fair opportunity to respond and be heard about the wife’s superannuation split, and I accept the wife’s submissions. I accept procedural fairness has been afforded to the superannuation trustee.
In these circumstances, I am satisfied that orders which appear at the commencement of these Reasons achieve justice and equity for both parties.
It is appropriate that, if not otherwise paid (as it was not at the time of hearing), the husband should have the wife’s payment to him rounded out to a figure of $415,750, reduced by his liability to meet the costs Order made by Judge Middleton of $50,240 on 21 January 2020, together with interest.
The parties should be able to assess the quantum of that adjustment, but if they are unable to agree on the calculation, they shall have liberty to re-list to enable the Court to determine the sum payable by the husband to the wife, to be paid by way of deduction from any cash sum payable to the husband, as so ordered by Judge Middleton.
Finally, if either party seeks to press their application for costs of the proceedings (or parts of the proceedings), then the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) prescribe how that should be pursued, and it is my usual practice to determine such applications on the papers in chambers unless otherwise ordered.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 24 January 2024
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