Hughes & Hughes - [2012] FamCA 198

FAMILY COURT OF AUSTRALIA

HUGHES & HUGHES

[2012] FamCA 198

FAMILY LAW – ORDERS – interpretation of consent orders

Family Law Act 1975 (Cth)

de Lasala & de Lasala [1980] AC 546; [1979] 2 All ER 1146
Langford & Coleman (1993) FLC 92-346
Robertson and Wills (1982) FLC 91-215
Thwaite & Thwaite [1982] Fam 1; [1981] 2 All ER 789
West v Green (1993) F LC 92-395

APPLICANT:

Ms Hughes

RESPONDENT:

Mr Hughes

FILE NUMBER:

MLC

3708

2010

DATE DELIVERED:

4 April 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

2 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Indovino

SOLICITOR FOR THE APPLICANT:

Barbour Arnold & Cousins

COUNSEL FOR THE RESPONDENT:

Ms Ben-Simon

SOLICITOR FOR THE RESPONDENT:

Lynette Smyth Solicitor

Orders

Pursuant to paragraph 3 of the Orders made 13 December 2000 the husband forthwith do all acts and things and sign all necessary documents to authorise and effect payment to the wife of all of his benefits and entitlements in the M Superannuation Fund and the D Superannuation Fund.
Pursuant to s106A of the Family Law Act 1975 (Cth) if the husband refuses or neglects to sign any document necessary to implement these orders within 14 days of a request in writing to do so, a Registrar of the Family Court of Australia is appointed to execute such document on behalf of the husband.
The wife cause a sealed copy of this order together with the reasons for judgment to be served on the M Superannuation Fund and the D Superannuation Fund as soon as practicable.
The wife’s application filed 8 December 2011 and the husband’s response filed 30 January 2012 be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hughes & Hughes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3708 of 2010

Ms Hughes

Applicant

And

Mr Hughes

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The application before me this day is the wife’s application filed 8 December 2011. She seeks orders that the respondent husband forthwith sign all documents and do all things necessary to affect payment to her of all of his benefits and entitlements in the M Superannuation Fund and the D Superannuation Fund pursuant to paragraph 3 of the Order of this Court made on 13 December 2000. Further, or in the alternative, that a Registrar of this Court execute all deeds and documents in the name of the husband to give validity and operation to paragraph 3 of the said Orders, such further orders by way of enforcement as the Court deems necessary and that the husband pay the wife’s costs of the proceedings on an indemnity basis..
The husband by way of response to that application filed 30 January 2012 seeks that the wife’s application be dismissed and…

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 Hughes & Hughes

Details

AGLC: Hughes & Hughes [2012] FamCA 198
Case: [2012] FamCA 198
Decision Date: 4 April 2012

CaseChat Overview and Summary

In the matter of Hughes & Hughes, the husband and wife were parties to proceedings before Macmillan J in the Family Court of Australia concerning the division of their superannuation entitlements. The dispute centred on the husband's obligation to transfer his benefits and entitlements in two superannuation funds, the M Superannuation Fund and the D Superannuation Fund, to the wife.

The primary legal issue before the court was how to ensure the effective and timely transfer of the husband's superannuation interests to the wife, particularly in circumstances where the husband might refuse or neglect to take the necessary steps. This involved the court considering its powers to enforce its orders for the division of property, specifically superannuation.

Macmillan J ordered that the husband must forthwith take all necessary actions and sign all required documents to authorise and effect the payment of all his benefits and entitlements in the M Superannuation Fund and the D Superannuation Fund to the wife. Crucially, the court invoked section 106A of the *Family Law Act 1975* (Cth), appointing a Registrar of the Family Court of Australia to execute any necessary documents on the husband's behalf should he refuse or neglect to do so within 14 days of a written request. The wife was directed to serve a sealed copy of the order and the reasons for judgment on the superannuation funds.

The court further ordered that the wife's application filed on 8 December 2011 and the husband's response filed on 30 January 2012 be otherwise dismissed and removed from the list of cases awaiting hearing, indicating a final resolution of the specific applications before the court.

Orders

Orders of the court

Pursuant to paragraph 3 of the Orders made 13 December 2000 the husband forthwith do all acts and things and sign all necessary documents to authorise and effect payment to the wife of all of his benefits and entitlements in the M Superannuation Fund and the D Superannuation Fund.

Pursuant to s106A of the Family Law Act 1975 (Cth) if the husband refuses or neglects to sign any document necessary to implement these orders within 14 days of a request in writing to do so, a Registrar of the Family Court of Australia is appointed to execute such document on behalf of the husband.

The wife cause a sealed copy of this order together with the reasons for judgment to be served on the M Superannuation Fund and the D Superannuation Fund as soon as practicable.

The wife’s application filed 8 December 2011 and the husband’s response filed 30 January 2012 be otherwise dismissed and removed from the list of cases awaiting hearing.

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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