GUTHRIE & RUSHTON - [2009] FamCA 1144

FAMILY COURT OF AUSTRALIA

GUTHRIE & RUSHTON

[2009] FamCA 1144

FAMILY LAW –PROPERTY – Approach – Superannuation Interests – Pension – Prospective pension as “property” – Two-Pools approach – Splitting order - Post-separation property – Contributions – Post-separation contributions – Section 75(2) factors – Section 75(2) one assessment or two? – Justice and equity of orders – Justice and equity relevance of prospective pension.

Evidence Act (Cth)
Family Law Act 1975 (Cth)
Family Law (Superannuation) Regulations 2001

Aleksovski & Aleksovski (1996) FLC 92-705
Bremner & Bremner (1994) 18 FamLR 407
Coghlan and Coghlan (2005) FLC 93-220
Farmer and Bramley (2000) 27 FamLR 316
G and G [1984] FLC 91-582
Gibbonsv Gibbons [2007] FamCA 26
In the Marriage of Best (1993) FLC 92-418
In the Marriage of Bonnici (1991) 15 FamLR 138
In the Marriage of Browne and Greene (1999) FLC 92-873
In the Marriage of Clauson (1995) 18 FamLR 693
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Hickey (2003) FLC 93-143
In the Marriage of Money (1994) FLC-485
In the Marriage of Pearce (1998) 24 FamLR 377
In the Marriage of Warne (1982) FLC 91-247
In the Marriage of Waters and Jurek (1995) FLC 92-635
In the Marriage of West and Green (1991) 16 FamLR 811
In the Marriage of Zappacosta (1976) FLC 90-089
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
Robb v Robb 1995) FLC 92-555
T and T (Pension Splitting) (2006) FLC 93-263
VAK and AK [2005] FamCA 803
Williams & Williams (2007) FamCA 313

APPLICANT:

Mr Guthrie

RESPONDENT:

Ms Rushton

FILE NUMBER:

MLC

12473

2007

DATE DELIVERED:

27 November 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Murphy J

HEARING DATE:

1 & 2 June 2009 and 20 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Geddes QC

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT:

Mr North SC leading Mr Strum

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

Orders

As and by way of settlement of property pursuant to s 79 of the Act:
(a)The property and superannuation interests of the parties or either of them identified at paragraph 46 of the Reasons for Judgment delivered contemporaneously herewith, be divided in the proportion 42.5% to the wife and 57.5% to the husband and to give effect to same, the parties each retain the property and superannuation interests there attributed to them and the husband pay to the wife within 30 days of the date of this Order, the sum of $150,000; and
(b)The husband’s superannuation interest constituted by his entitlement to a Public Official pension be subject to a splitting order that effects a split of 30% to the wife and 70% to the husband.
The parties shall, at the earliest opportunity, confer through their legal advisers with a view to settling the precise terms of orders giving effect to paragraph 1 and, in particular, the terms of the requisite splitting order or orders pursuant to s…

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 GUTHRIE & RUSHTON

Details

AGLC: GUTHRIE & RUSHTON [2009] FamCA 1144
Case: [2009] FamCA 1144
Decision Date: 27 November 2009

CaseChat Overview and Summary

This matter concerned property settlement proceedings between a husband and wife, heard by Murphy J. The dispute revolved around the division of the parties' property and superannuation interests.

The court was required to determine the appropriate proportions for the division of the parties' identified property and superannuation interests, and to make orders giving effect to this division pursuant to section 79 of the *Family Law Act 1975* (Cth). A specific issue was the treatment of the husband's superannuation interest, which comprised an entitlement to a Public Official pension, requiring consideration under section 90MT of the Act.

Murphy J ordered that the parties' property and superannuation interests be divided 42.5% to the wife and 57.5% to the husband, with each party retaining the assets attributed to them in paragraph 46 of the reasons. The husband was also ordered to pay the wife $150,000 within 30 days. Furthermore, the husband's Public Official pension superannuation interest was to be split 30% to the wife and 70% to the husband. The parties were directed to confer to settle the precise terms of the orders, including those necessary for the superannuation split, and to cooperate with the trustee of the husband's superannuation interest. The court outlined a procedure for finalising the orders, including provisions for the trustee to be heard or to indicate no objection, with the court to make final orders in chambers if the proposed minutes were considered appropriate.

Orders

Orders of the court

As and by way of settlement of property pursuant to s 79 of the Act:

(a) The property and superannuation interests of the parties or either of them identified at paragraph 46 of the Reasons for Judgment delivered contemporaneously herewith, be divided in the proportion 42.5% to the wife and 57.5% to the husband and to give effect to same, the parties each retain the property and superannuation interests there attributed to them and the husband pay to the wife within 30 days of the date of this Order, the sum of $150,000; and

(b) The husband’s superannuation interest constituted by his entitlement to a Public Official pension be subject to a splitting order that effects a split of 30% to the wife and 70% to the husband.

The parties shall, at the earliest opportunity, confer through their legal advisers with a view to settling the precise terms of orders giving effect to paragraph 1 and, in particular, the terms of the requisite splitting order or orders pursuant to s 90MT of the Act necessary to give effect to paragraph 1 hereof.

The parties each do all such things and sign all such documents as may be necessary to accord procedural fairness to the “trustee” of the husband’s superannuation interest, within the meaning of Family Law Act 1975 (Cth) as amended, including, but not necessarily limited to, submitting to the said “trustee” for (as the case may be) his, her, or its consideration the precise terms of orders giving effect to the said split of the husband’s superannuation interest constituted by his entitlement to a Public Official pension.

In the event that the “trustee” referred to in paragraph 1 of these Orders wishes to be heard in respect of the said splitting order, the parties shall, as soon as practicable after becoming aware of same, notify the court to that effect by joint e-mail communication to the chambers of Justice Murphy.

In the event that the “trustee” referred to in paragraph 1 of these Orders does not wish to be heard in respect of the said orders, the parties be at liberty, by joint e-mail communication to the chambers of Justice Murphy to:

(a) Notify the court of that fact, and contemporaneously with such notification;

(b) Forward minutes of order giving effect to paragraph 1 of these Orders.

Upon receipt of each of the documents contemplated by paragraph 5 of these Orders, the court shall, if the minutes of Order are considered appropriate, make Orders in Chambers without the necessity for further appearance by either party.

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.