Jayce and Pierce And Anor - [2019] FamCA 955

AMENDED PURSUANT TO RULE 17.02A ON 30 APRIL AND 1 MAY 2020

FAMILY COURT OF AUSTRALIA

JAYCE & PIERCE AND ANOR

[2019] FamCA 955

FAMILY LAW – PROPERTY – Property Adjustment – Where discussion of applicable principles – Where relatively small property pool – Where parties’ contributions to time of trial equal – Where s 75(2) factors significant – Where pool to be adjusted 62.5 per cent to the wife and 37.5 per cent to the husband.

Family Law Act 1975 (Cth) ss 75, 79

Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Dench & Dench [1978] FamCA 65
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford & Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

APPLICANT:

Ms Jayce

FIRST RESPONDENT:

Mr Pierce

SECOND RESPONDENT:

Ms B Jayce

FILE NUMBER:

PAC

3716

2016

DATE DELIVERED:

12 December 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

2, 3 and 4 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Druitt

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE FIRST RESPONDENT:

Mr Anderson

SOLICITOR FOR THE FIRST RESPONDENT:

Watts McCray (NSW) Pty Ltd

SECOND RESPONDENT – SELF-REPRESENTED LITIGANT:

Ms B Jayce

Orders

The wife’s application for spouse maintenance be dismissed.
That within six months from this date the wife pay to the husband the sum of $48,236.
That in consideration of the payment provided for, the husband shall do all things necessary and sign all necessary documents to transfer to the wife his interest in the home at C Street, Suburb D being the land in Folio Identifier ….
That concurrently with the transfer of the property to her, the wife shall do all things necessary to discharge the present mortgage encumbrances secured over the property at C Street, Suburb D being the land in Folio Identifier … and as and from this date indemnify the husband from all or any liability arising therefrom.
That in default of the wife complying with Order 1 by the due date, the parties including the second respondent do all things necessary to sell the property at C Street, Suburb D being the land in Folio Identifier … for the best price reasonably obtainable and to apply the proceeds of sale as follows:
(a)In payment of agent’s commission and selling costs including legal expenses;
(b)In payment of 46 per cent of the balance then remaining to the second respondent Ms B Jayce; and
(c)In payment of the balance then remaining to give effect to an overall division of property as to 62.5 per cent to the wife and 37.5 per cent plus $5,500 to the husband having regard to these reasons for judgment and taking into account the superannuation splitting order made herein.
That:
(a)The Court allocates, as required by section 90XT (4) of the Family Law Act 1975 (Cth), a base amount of $200,000 to the applicant wife out of the respondent husband’s interest…

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 Jayce and Pierce And Anor

Details

AGLC: Jayce and Pierce And Anor [2019] FamCA 955
Case: [2019] FamCA 955
Decision Date: 12 December 2019

CaseChat Overview and Summary

The case of *Jayce and Pierce And Anor* involved an application by the wife for spouse maintenance, which was dismissed by the court. The court also made orders concerning the division of property between the parties, including the transfer of the family home and the splitting of superannuation interests. The second respondent, Ms B Jayce, was also a party to the proceedings and had specific entitlements outlined in the orders.

The primary legal issues before the court were the wife's entitlement to spouse maintenance and the just and equitable division of the parties' property interests. This included determining the appropriate allocation of the family home and the husband's superannuation fund between the parties, taking into account their respective contributions and financial circumstances. The court was also required to consider the implications of a superannuation splitting order under the *Family Law Act 1975* (Cth).

Foster J reasoned that the wife's application for spouse maintenance should be dismissed, likely due to her capacity to support herself or other factors considered under the relevant provisions of the *Family Law Act 1975* (Cth). In relation to property division, the court ordered the wife to pay a sum of $48,236 to the husband within six months, in consideration for which the husband would transfer his interest in the family home to the wife. The wife was also required to discharge existing mortgage encumbrances on the property and indemnify the husband against any future liability. In the event of the wife's default in making the payment, the parties were to sell the property, with proceeds to be applied first to selling costs, then to the second respondent, and the balance to effect an overall property division of 62.5% to the wife and 37.5% plus $5,500 to the husband, taking into account a superannuation splitting order. The court also made a specific order under section 90XT(4) of the *Family Law Act 1975* (Cth), allocating a base amount of $200,000 from the husband's superannuation interest to the wife, and directed the trustee of the superannuation fund to create an entitlement for the wife and make a corresponding reduction in the husband's entitlement. The parties were ordered to facilitate the wife rolling over her superannuation interest to a complying fund of her choice.

Orders

Orders of the court

The wife’s application for spouse maintenance be dismissed.

That within six months from this date the wife pay to the husband the sum of $48,236.

That in consideration of the payment provided for, the husband shall do all things necessary and sign all necessary documents to transfer to the wife his interest in the home at C Street, Suburb D being the land in Folio Identifier ….

That concurrently with the transfer of the property to her, the wife shall do all things necessary to discharge the present mortgage encumbrances secured over the property at C Street, Suburb D being the land in Folio Identifier … and as and from this date indemnify the husband from all or any liability arising therefrom.

That in default of the wife complying with Order 1 by the due date, the parties including the second respondent do all things necessary to sell the property at C Street, Suburb D being the land in Folio Identifier … for the best price reasonably obtainable and to apply the proceeds of sale as follows:

(a) In payment of agent’s commission and selling costs including legal expenses;

(b) In payment of 46 per cent of the balance then remaining to the second respondent Ms B Jayce; and

(c) In payment of the balance then remaining to give effect to an overall division of property as to 62.5 per cent to the wife and 37.5 per cent plus $5,500 to the husband having regard to these reasons for judgment and taking into account the superannuation splitting order made herein.

That:

(a) The Court allocates, as required by section 90XT (4) of the Family Law Act 1975 (Cth), a base amount of $200,000 to the applicant wife out of the respondent husband’s interest in the Super Fund 1 Plan member number ….

(b) In accordance with section 90XT(1)(a) of the Family Law Act 1975 (Cth), the Trustee of the Super Fund 1 Plan:

(i) Creates an entitlement on the part of the applicant wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount allocated in paragraph 4.1; and

(ii) Makes a corresponding reduction in the entitlement to the respondent husband, or such other person to whom a splittable payment may be made, would have had in Super Fund 1 Plan, but for his order.

(c) Whenever the Trustee of Super Fund 1 Plan makes a splittable payment out of the respondent husband’s interest in the Super Fund 1 Plan, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 5(a) of this order in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001;

(d) This order has effect from the operative time and the operative time is 4 working days after the service of these orders on the Trustee of the Super Fund 1 Plan; and

(e) This order binds the Trustee of Super Fund 1 Plan.

The parties shall sign all necessary consents as required by the Trustee of Super Fund 1 Plan within seven days of this order so as to facilitate the wife rolling her superannuation interest out of the Super Fund 1 Plan to a complying fund of her choice and the wife shall do all things necessary to do so as soon as practicable.

Liberty to apply as to implementation or enforcement of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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