Hutton & Hutton - [2007] FamCA 1701

FAMILY COURT OF AUSTRALIA

HUTTON & HUTTON

[2007] FamCA 1701

FAMILY LAW – PROCEEDINGS FOR PROPERTY SETTLEMENT – Short marriage – Serious allegations, including rape and blackmail – Informal agreement after settlement

Family Law Act 1975 (Cth)

Applicant:

Ms Hutton

Respondent

Mr Hutton

File Number:

TVF

2485

2005

Date Delivered:

14 December 2007

Place Delivered:

Melbourne

Judgment of:

Carter J

Hearing Date:

19, 20, 21, 22 June 2007 and 20 July 2007 with written submissions concluding 15 August 2007

Representation

Counsel for the Applicant:

Mr Justin Greggery

Solicitor for the Applicant:

Roberts Nehmer McKee

Solicitor for the Respondent:

In person

Orders

The orders will be:

That within three months of the date of these orders, the husband pay to the wife the sum of $24,000.
That the husband pay spousal maintenance for the wife in an amount of $150 per week for a period of one year, calculated from the date of these orders, with the first payment being due 21 December 2007.
That pursuant to s 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s interest in UniSuper (hereinafter referred to as the “Superannuation Fund”), the wife is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations2001 using a base amount in the sum of $50,000 and there is to be a corresponding reduction in the entitlement the husband would have had in the Superannuation Fund but for this order.
That par (3) of these orders shall take effect from the operative time.
The operative time for these orders is seven (7) days after the service of sealed orders upon the Trustee of the UniSuper Superannuation Fund.
That, having been afforded procedural fairness in relation to the making of this order, this order binds the Trustee of the UniSuper Superannuation Fund.
That the parties shall equally bear any costs, fees or charges imposed by the Trustee of the Superannuation Fund to give effect to these orders.
That the husband have liberty to apply on reasonable notice being given to the wife for the return of any item of furniture, chattels or other personal property of particular sentimental value to him which has been retained by the wife provided that any such application must be initiated within 60 days of this day.
That save as aforesaid the husband and the wife are each entitled to retain all other items of property presently in their respective possession or control including, but not limited to, money, shares, real property, motor vehicles, entitlements to superannuation, furniture, furnishings and personal effects.
That the husband and the wife do all acts and things necessary to authorise the release to the wife of all funds, including interest, held in the Ireland Stapleton Trust Account.
Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders and each party be solely liable for…

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 Hutton & Hutton

Details

AGLC: Hutton & Hutton [2007] FamCA 1701
Case: [2007] FamCA 1701
Decision Date: 14 December 2007

CaseChat Overview and Summary

In *Hutton & Hutton*, Carter J of the Family Court of Australia made orders concerning the property settlement and spousal maintenance of the parties. The dispute involved the division of assets, including superannuation, and the provision of ongoing financial support.

The court was required to determine the appropriate division of the parties' property, including the husband's interest in UniSuper, and to make orders regarding spousal maintenance for the wife. The court also had to consider the mechanism for effectuating the division of the superannuation interest and the binding nature of such orders on the superannuation trustee.

Carter J ordered the husband to pay the wife a lump sum of $24,000 and spousal maintenance of $150 per week for one year. Crucially, the court ordered that the wife was entitled to a splittable payment from the husband's UniSuper interest, calculated using a base amount of $50,000, with a corresponding reduction in the husband's entitlement. These orders regarding superannuation were to take effect seven days after service of the sealed orders on the UniSuper Trustee, and the Trustee was bound by the order, having been afforded procedural fairness. The parties were to equally bear any costs associated with implementing the superannuation order. The court also made orders regarding the return of specific items of furniture, the retention of other property, the release of funds from a trust account, and each party's sole liability for existing debts and liabilities. Save for these specific orders, all other applications were dismissed. The parties were granted liberty to apply for costs within 30 days.

Orders

Orders of the court

The orders will be:

That within three months of the date of these orders, the husband pay to the wife the sum of $24,000.

That the husband pay spousal maintenance for the wife in an amount of $150 per week for a period of one year, calculated from the date of these orders, with the first payment being due 21 December 2007.

That pursuant to s 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s interest in UniSuper (hereinafter referred to as the “Superannuation Fund”), 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 $50,000 and there is to be a corresponding reduction in the entitlement the husband would have had in the Superannuation Fund but for this order.

That par (3) of these orders shall take effect from the operative time.

The operative time for these orders is seven (7) days after the service of sealed orders upon the Trustee of the UniSuper Superannuation Fund.

That, having been afforded procedural fairness in relation to the making of this order, this order binds the Trustee of the UniSuper Superannuation Fund.

That the parties shall equally bear any costs, fees or charges imposed by the Trustee of the Superannuation Fund to give effect to these orders.

That the husband have liberty to apply on reasonable notice being given to the wife for the return of any item of furniture, chattels or other personal property of particular sentimental value to him which has been retained by the wife provided that any such application must be initiated within 60 days of this day.

That save as aforesaid the husband and the wife are each entitled to retain all other items of property presently in their respective possession or control including, but not limited to, money, shares, real property, motor vehicles, entitlements to superannuation, furniture, furnishings and personal effects.

10.

That the husband and the wife do all acts and things necessary to authorise the release to the wife of all funds, including interest, held in the Ireland Stapleton Trust Account.

11.

Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders and each party be solely liable for and indemnify the other in respect of all debts incurred in his or her name.

12.

That all documents produced on subpoena be returned to the person or institution providing the same at the expiration of 45 days from this day.

13.

That all exhibits be returned to the person, or solicitor for the person, tendering the same provided that they be returned to the Court upon request.

14.

Save as aforesaid all applications be otherwise dismissed and removed from the list of cases awaiting determination save for any applications for costs.

15.

That each party be at liberty to bring an application for costs by filing written submissions in respect of such application within 30 days of this day.

16.

That the respondent to any such application shall file written submissions in response within 30 days of service of the other’s party’s submissions.

17.

That the cover sheet of any such submissions shall be annotated with the date of service of such submissions.

18.

That any application for costs be considered in Chambers, so far as is 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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