Federal Circuit and Family Court of Australia
(DIVISION 2)
Harvey & Harvey [2022] FedCFamC2F 1304
File number(s): SYC 2431 of 2015 Judgment of: JUDGE MORLEY Date of judgment: 6 October 2022 Catchwords: FAMILY LAW – property – application for final orders pursuant to section 79 – parties to a long marriage – assessment of contributions – where the Court finds the Husband owns 95% of the net matrimonial asset pool and the Wife owns 5% – where the Court finds it is just and equitable to alter the parties’ interests in the net matrimonial asset pool equally – where the Court finds the only order to be made is a superannuation splitting order in favour of the Wife with a base amount of $266,199 – where procedural fairness to the trustee of the Husband’s superannuation fund must first be afforded before final orders can be made – where parties must provide written submissions regarding the proposed splitting order Legislation: Evidence Act 1995 (Cth) – s 13
Family Law Act 1975 (Cth) – ss 13E, 75, 78, 79, 90XT, 90XZD
Cases cited: Bevan & Bevan (2013) 279 FLR 1
Dickons & Dickons [2012] FamCAFC 15
Fields & Smith [2015] FamCAFC 57
Fontana [2018] FamCAFC 63
Grier & Malphas (2017) 55 Fam LR 107
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
In the marriage of Harris (1991) 104 FLR 458
Jabour & Jabour [2019] FamCAFC 78
Keskin & Keskin [2019] FamCAFC 236
Masoud & Masoud [2016] FamCAFC 24
Naisby & Naisby [2021]FamCAFC 92.
Sadasivam & Seshan [2019] FamCAFC 76
Shan & Prasad [2018] FamCAFC 12
Stanford & Stanford (2012) 247 CLR 108
Talbot & Talbot [2015] FamCAFC 132
Trevi & Trevi [2018] FamCAFC 173
Vass & Vass [2015] FamCAFC 51
Division: Division 2 Family Law Number of paragraphs: 194 Date of last submission/s: 21 May 2021 Date of hearing: 8-9 March 2021 Place: Sydney Applicant: Litigant in Person Respondent: Litigant in Person ORDERS
SYC 2431 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HARVEY
Applicant
AND: MR HARVEY
Respondent
order made by:
JUDGE MORLEY
DATE OF ORDER:
6 October 2022
THE COURT ORDERS THAT:
1.Order 6 made on 2 July 2015 is discharged as and from the date of last payment pursuant to that order.
2.Pending further order, the Husband is restrained from dealing in any manner with his superannuation entitlements, including but not limited to, the Harvey Self-Managed Superannuation Fund (‘Harvey SMSF’) of which Harvey SMSF Pty Ltd is trustee.
3.The Husband and Wife are to file and serve any written submissions in chief in relation to the Court making a superannuation splitting order in favour of the Wife from the Husband’s Harvey SMSF in the sum of $266,199 by no later than 4:00PM on 20 October 2022.
4.The Husband and the Wife are to file and serve any written submissions in reply should they choose to do so by no later than
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- Case
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CaseChat Overview and Summary
The legal issue before the court was whether it was just and equitable to alter the parties' interests in the net matrimonial asset pool equally and to make a superannuation splitting order in favour of the wife. The court found that it was just and equitable to do so, given the length of the marriage and the wife's contributions to the marriage. However, procedural fairness to the trustee of the husband's superannuation fund must be afforded before final orders can be made.
The court found it just and equitable to make a superannuation splitting order in favour of the wife with a base amount of $266,199. However, before making the final order, procedural fairness to the trustee of the husband's superannuation fund must be afforded. The husband and wife must provide written submissions regarding the proposed splitting order by specified dates. The court also noted that the form of the order was subject to entry in the court's records and that the copy of the court's reasons for judgment may be subject to review or variation.
Orders
Orders of the court
SYC 2431 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS HARVEY
Applicant
AND:
MR HARVEY
Respondent
order made by:
JUDGE MORLEY
DATE OF ORDER:
6 October 2022
THE COURT ORDERS THAT:
1. Order 6 made on 2 July 2015 is discharged as and from the date of last payment pursuant to that order.
2. Pending further order, the Husband is restrained from dealing in any manner with his superannuation entitlements, including but not limited to, the Harvey Self-Managed Superannuation Fund (‘Harvey SMSF’) of which Harvey SMSF Pty Ltd is trustee.
3. The Husband and Wife are to file and serve any written submissions in chief in relation to the Court making a superannuation splitting order in favour of the Wife from the Husband’s Harvey SMSF in the sum of $266,199 by no later than 4:00PM on 20 October 2022.
4. The Husband and the Wife are to file and serve any written submissions in reply should they choose to do so by no later than 4:00PM on 3 November 2022.
5. By no later than 4:00PM on 11 October 2022 both parties are to comply with the provisions set out in Part VIIIB of the Family Law Act 1975 (Cth) (‘the Act’) and the Family Law (Superannuation) Regulations 2001, in particular by way of procedural fairness on the superannuation trustee of the Harvey SMSF by providing to the superannuation trustee of the Harvey SMSF, Harvey SMSF Pty Ltd, the Court’s Reasons for Judgment dated 6 October 2022 in relation to the proposed superannuation splitting order with a base amount of $266,199 in favour of the Wife.
6. That the proceedings are listed for further mention and directions via Microsoft Teams at 9:30AM on 9 November 2022.
THE COURT NOTES THAT:
A. Pending procedural fairness being afforded to the trustee of the Harvey SMSF, the Court has found it is just and equitable to make an order pursuant to section 79 of the Act to make a superannuation splitting order with a base amount of $266,199 in favour of the Wife.
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.
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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