Hackett and Hackett - [2007] FamCA 1618

FAMILY COURT OF AUSTRALIA

HACKETT & HACKETT

[2007] FamCA 1618

FAMILY LAW – PROPERTY SETTLEMENT – Superannuation – 1999 orders purporting to alter interests invalid, unenforceable – Setting aside orders – Miscarriage of justice – Setting aside orders – Default by party

Family Law Act 1975 (Cth)

Stacy & Stacy (1977) FLC 90-324 at 76,707
Bailey & Bailey (1978) FLC 90-424 at 77,145
In the marriage of Crapp (1979) 5 FamLR 47
In the marriage of Whitehead (1979) 5 Fam LR 308 at 313 to 314
Coulter & Coulter (1990) FLC 92-104 at 77,685-7
Kearney & Kearney (1991) FLC 92-208 at 78423
In the Marriage of West & Green (1991) 16 Fam LR 811
RBH & JIH [2005] FamCA 226
In the Marriage of Clifton & Stuart (1990) 14 Fam LR 511

APPLICANT:

Mr Hackett

RESPONDENT:

Ms Hackett

FILE NUMBER:

NCF

2430

1998

DATE DELIVERED:

21 December 2007

PLACE DELIVERED:

Newcastle

JUDGMENT OF:

Justice Mullane

HEARING DATE:

13 August 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Melville

SOLICITOR FOR THE RESPONDENT:

Mr Kirsop

Orders

The consent Orders made by the Court at Newcastle on 23 July 1999 are set aside.
Within 28 days the husband must pay to the wife a sum of $20,000 plus interest at the prescribed rate from 1 February 2007 on that sum to today and then on so much as is from time to time outstanding.
Whenever a splittable payment is payable in respect of the superannuation interest of the husband MR HACKETT in the A Superannuation fund:
3.1)THE WIFE is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations, 2001, using a base amount in the sum of $39,917 at the operative time of 1 February 2007; and
3.2)there is a corresponding reduction in the entitlement of the person to whom the splittab1e payment would have been made but for this order.
The above order binds the trustee of the superannuation fund and the trustee must implement the order.
The wife must arrange service of a sealed copy of these orders on the trustee(s) of the A Superannuation fund and the trustee(s) of the Universal Super Scheme as soon as practicable.
It is noted the husband directs the trustee of the Universal Super Scheme to surrender the MLC Whole of Life Policy Number ….
Whenever a splittable payment is payable in respect of the superannuation interest of the husband in the Universal Super Scheme:
7.1)THE WIFE is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations, 2001, using a base amount in the sum of $68,083 at the operative time of 1 February 2007; and
7.2)there is a corresponding reduction in the entitlement of the person to whom the splittab1e payment would have been made but for this order.
The above order binds the trustee of the superannuation fund and the trustee must implement the order.
By consent if either party refuses or neglects to sign any document necessary to implement…

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 Hackett and Hackett

Details

AGLC: Hackett and Hackett [2007] FamCA 1618
Case: [2007] FamCA 1618
Decision Date: 21 December 2007

CaseChat Overview and Summary

In the matter of *Hackett and Hackett*, Justice Mullane of the Family Court of Australia considered an application to set aside consent orders made on 23 July 1999. The dispute concerned the division of property and superannuation interests between the husband and wife.

The primary legal issues before the Court were whether the original consent orders should be set aside, and if so, what new orders should be made regarding the financial and superannuation entitlements of the parties. The Court was required to determine the appropriate distribution of assets, including a specific sum of money and a portion of the husband's superannuation.

Justice Mullane reasoned that the original consent orders were no longer appropriate and ordered that they be set aside. The Court then made new orders requiring the husband to pay the wife a sum of $20,000, with interest calculated from 1 February 2007. Furthermore, the Court ordered that the wife be entitled to a specific portion of the husband's superannuation interest in the A Superannuation fund, calculated according to the Family Law (Superannuation) Regulations 2001, with a base amount of $39,917 as at 1 February 2007. These orders were made binding on the trustee of the superannuation fund.

Orders

Orders of the court

The consent Orders made by the Court at Newcastle on 23 July 1999 are set aside.

Within 28 days the husband must pay to the wife a sum of $20,000 plus interest at the prescribed rate from 1 February 2007 on that sum to today and then on so much as is from time to time outstanding.

Whenever a splittable payment is payable in respect of the superannuation interest of the husband MR HACKETT in the A Superannuation fund:

3.1) THE WIFE is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations, 2001, using a base amount in the sum of $39,917 at the operative time of 1 February 2007; and

3.2) there is a corresponding reduction in the entitlement of the person to whom the splittab1e payment would have been made but for this order.

The above order binds the trustee of the superannuation fund and the trustee must implement the order.

The wife must arrange service of a sealed copy of these orders on the trustee(s) of the A Superannuation fund and the trustee(s) of the Universal Super Scheme as soon as practicable.

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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