HINCHMAN & HINCHMAN - [2014] FamCA 354

FAMILY COURT OF AUSTRALIA

HINCHMAN & HINCHMAN

[2014] FamCA 354

FAMILY LAW – PROPERTY – 12 year relationship – modest non-superannuation pool – husband in receipt of public service pension – dispute about the percentage of the pension that should be paid to the wife – pension treated as a separate property pool – the “real nature” of the pension taken into account – husband currently uses the pension as a secondary income stream – adjustments made in favour of the wife – wife to receive 35 per cent of the pension

FAMILY LAW – COSTS – Application for costs made by the Independent Children’s Lawyer – where parenting issues had been finalised prior to property settlement out of Court – where payment of the Independent Children’s Lawyer would cause financial hardship for both parties

Family Law Act 1975 (Cth) ss 75, 79, 90MT, 117

Family Law (Superannuation) Regulations 2001 (Cth)

Darcy & Darcy [2011] FMCAfam 126
Fane & Lemott [2013] FamCA 604

Marriage of Coghlan (2005) 33 Fam LR 414
Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Mr Hinchman

RESPONDENT:

Ms Hinchman

FILE NUMBER:

NCC

1545

2011

DATE DELIVERED:

3 June 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

12, 13 February; 21 June; 11 December 2013 and written submissions received by 12 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levick of Counsel

SOLICITOR FOR THE APPLICANT:

Charlestown Law Firm

COUNSEL FOR THE RESPONDENT:

Mr Boyd

SOLICITOR FOR THE RESPONDENT:

Virginia Taylor

Orders

That the base amount of $359,302 is allocated as required by s 90MT(4) of the Family Law Act 1975 (Cth) to Ms Hinchman out of Mr Hinchman’s interest in the Public Service Agency D Superannuation Fund.
That in accordance with s 90MT(1)(a) of the Act:
(a)Ms Hinchman is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001 and
(b)Mr Hinchman’s entitlement to payments out of his interest in the Public Service Agency D Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.
That the Trustee of the Public Service Agency D Superannuation Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 and Family Law (Superannuation) Regulation 2001, the entitlement created for Ms Hinchman by Order (1); and
(b)Pay the entitlements whenever the Trustee makes a splittable payment out of Mr Hinchman’s interest in the Public Service Agency D Superannuation Fund.
(c)That these Orders have effect from the operative time and the operative time for this Order is four business days after the Trustee is served with this Order.
That this Order binds the Trustee of the Public Service Agency D Superannuation Fund.
That the husband and the wife each pay the costs of the Independent Children’s Lawyer up…

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 HINCHMAN & HINCHMAN

Details

AGLC: HINCHMAN & HINCHMAN [2014] FamCA 354
Case: [2014] FamCA 354
Decision Date: 3 June 2014

CaseChat Overview and Summary

In *Hinchman & Hinchman*, the parties, a husband and wife, presented a dispute to Cleary J concerning the division of their modest non-superannuation assets and, more significantly, the husband's public service pension. The central contention revolved around the proportion of the pension that should be allocated to the wife.

The court was required to determine how the husband's public service pension should be treated as a property pool and, consequently, what percentage of that pension should be awarded to the wife. The court also considered an application for costs made by the Independent Children’s Lawyer, in circumstances where parenting issues had been resolved separately and the payment of costs would cause financial hardship to both parties.

Cleary J approached the pension as a distinct property pool, taking into account its "real nature" and the fact that the husband was currently utilising it as a secondary income stream. The court reasoned that adjustments were warranted in favour of the wife, leading to an order that she receive 35 per cent of the pension. Regarding the costs application, the court dismissed the Independent Children’s Lawyer's application, noting the financial hardship it would impose on the parties. The remaining orders dealt with the specific allocation of the superannuation fund, the binding of the Trustee, the delivery of certain artworks, and the retention of personalty by each party.

Orders

Orders of the court

That the base amount of $359,302 is allocated as required by s 90MT(4) of the Family Law Act 1975 (Cth) to Ms Hinchman out of Mr Hinchman’s interest in the Public Service Agency D Superannuation Fund.

That in accordance with s 90MT(1)(a) of the Act:

(a) Ms Hinchman is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001 and

(b) Mr Hinchman’s entitlement to payments out of his interest in the Public Service Agency D Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.

That the Trustee of the Public Service Agency D Superannuation Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

(a) Calculate, in accordance with the requirements of the Family Law Act 1975 and Family Law (Superannuation) Regulation 2001, the entitlement created for Ms Hinchman by Order (1); and

(b) Pay the entitlements whenever the Trustee makes a splittable payment out of Mr Hinchman’s interest in the Public Service Agency D Superannuation Fund.

(c) That these Orders have effect from the operative time and the operative time for this Order is four business days after the Trustee is served with this Order.

That this Order binds the Trustee of the Public Service Agency D Superannuation Fund.

That the husband and the wife each pay the costs of the Independent Children’s Lawyer up to and including appearances on 12 February 2013.

That the parties each retain all personalty and other asset currently in the possession of that party.

BY CONSENT IT IS ORDERED:

That the wife cause to be delivered to the husband the following art works:

(a) Watercolour ‘Subject C’ (unknown artist); and

(b) his Public Service Agency D Award (if located).

That the Independent Children’s Lawyer’s application for costs is dismissed.

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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