Jefferson and Jefferson - [2015] FCCA 3350

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEFFERSON & JEFFERSON

[2015] FCCA 3350

Catchwords:
FAMILY LAW – Property proceedings.

Legislation:

Family Law Act 1975, ss.72, 75, 79, 117

Child Support (Assessment) Act 1989
Family Law (Superannuation) Regulations 2001
Superannuation Industry Supervision Regulations 1994

Cases cited:
Stanford & Stanford (2012) 293 ALR 1970
Hickey & Hickey (2003) FLC 93-143
Russell & Russell [1999] FamCA 1875, (1999) FLC 92-877
Bevan & Bevan [2013] FamCAFC 116
Bevan & Bevan (1995) FLC 600
McClusky & McClusky [2014] FamCA 93
Whitton & Whitton [2014] FamCA 110
Omacini & Omacini (2005) FLC 93-218
Vass & Vass [2015] FamCAFC 51
Rosati & Rosati (1998) FLC 92-804
Atwell & Atwell (1981) FLC 91-187

Applicant:

MR JEFFERSON

Respondent:

MS JEFFERSON

File Number:

SYC 908 of 2013

Judgment of:

Judge Myers

Hearing dates:

1 December, 2014, 2 December 2014,

3 December 2014, 4 December 2014,

5 December 2014 & 20 January 2015

Date of Last Submission:

22 March 2015

Delivered at:

Newcastle

Delivered on:

19 November 2015

REPRESENTATION

Solicitors for the Applicant:

MN Lawyers & Associates

Counsel for the Respondent:

Mr Bateman

Solicitors for the Respondent:

O’Hearn Lawyers

THE COURT ORDERS THAT:

All previous orders of the Court in respect of property be discharged.
Within 21 days the wife pay to the husband the sum of $776.70.
Within 21 days the husband cause to be provided to the wife two lists that itemise in a divided fashion between the lists all of the household belongings, furniture and furnishings in the husband’s possession.
The wife, within seven days of provision of such list by the husband, elect which of the two lists of the said furniture and furnishings she wishes to obtain from the husband advising the husband of the same in writing.
The husband shall thereafter make available the furniture, furnishings and household effects for collection by the wife within 21 days of the wife providing written notice to the husband at a reasonable time as nominated by the wife.
The base amount of $119,158.28 is allocated as required by section 90MT(4) of the Family Law Act 1975 to the wife out of the husband’s interest in (omitted) Super Fund member number (omitted).
In accordance with paragraph 90MT(1)(a) of the Family Law Act 1975 the wife is entitled to be paid the amount calculated in accordance with part 6 of the Family Law (Superannuation) Regulations 2001 and the husband’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to payments of the husband’s interest in the (omitted) Super Fund, is correspondingly reduced.
The trustee of the (omitted) Super Fund shall do all such acts and things and sign all documents necessary as may be necessary to calculate in accordance with the requirement of the Family Law Act 1975, the Family Law (Superannuation) Regulations 2001 the entitlement to the wife created by clause 4 of these orders pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in…

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 Jefferson and Jefferson

Details

AGLC: Jefferson and Jefferson [2015] FCCA 3350
Case: [2015] FCCA 3350
Decision Date: 19 November 2015

CaseChat Overview and Summary

In *Jefferson and Jefferson*, Judge Myers of the Federal Circuit Court of Australia considered a dispute between a husband and wife concerning the division of their property. The proceedings involved the allocation of significant financial assets, including a superannuation interest, and the division of household belongings.

The court was required to determine how to effect a just and equitable division of the parties' property, specifically addressing the division of a superannuation fund in accordance with section 90MT of the *Family Law Act 1975* (Cth). Additionally, the court needed to make orders regarding the division of household furniture and furnishings.

Judge Myers applied the principles of the *Family Law Act 1975* (Cth) to achieve a property settlement. The court ordered the discharge of previous property orders and directed the wife to pay a sum of money to the husband. Crucially, the court made detailed orders for the division of household belongings, requiring the husband to provide lists of items for the wife to elect from. The court also ordered a significant allocation of the husband's superannuation interest to the wife, pursuant to section 90MT(4) of the Act, and directed the superannuation trustee to take necessary steps to implement this split payment. Further orders were made to ensure the effective transfer of assets and to appoint a registrar to execute documents if necessary, thereby giving effect to the property division.

Orders

Orders of the court

All previous orders of the Court in respect of property be discharged.

Within 21 days the wife pay to the husband the sum of $776.70.

Within 21 days the husband cause to be provided to the wife two lists that itemise in a divided fashion between the lists all of the household belongings, furniture and furnishings in the husband’s possession.

The wife, within seven days of provision of such list by the husband, elect which of the two lists of the said furniture and furnishings she wishes to obtain from the husband advising the husband of the same in writing.

The husband shall thereafter make available the furniture, furnishings and household effects for collection by the wife within 21 days of the wife providing written notice to the husband at a reasonable time as nominated by the wife.

The base amount of $119,158.28 is allocated as required by section 90MT(4) of the Family Law Act 1975 to the wife out of the husband’s interest in (omitted) Super Fund member number (omitted).

In accordance with paragraph 90MT(1)(a) of the Family Law Act 1975 the wife is entitled to be paid the amount calculated in accordance with part 6 of the Family Law (Superannuation) Regulations 2001 and the husband’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to payments of the husband’s interest in the (omitted) Super Fund, is correspondingly reduced.

The trustee of the (omitted) Super Fund shall do all such acts and things and sign all documents necessary as may be necessary to calculate in accordance with the requirement of the Family Law Act 1975, the Family Law (Superannuation) Regulations 2001 the entitlement to the wife created by clause 4 of these orders pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the (omitted) Super Fund.

This order have effect from the operative time and the operative time is four business days after service of a sealed copy of this order upon the trustee for the (omitted) Super Fund.

10.

After service of the payment split notice pursuant to rule 7A.03 of the Superannuation Industry Supervision Regulations 1994 the wife shall do all such things and sign all documents as may be necessary, including, but not limited to, exercising her request pursuant to rule 7A.06(1) of the Superannuation Industry Supervision Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the (omitted) Super Fund to a fund of the wife’s choosing in accordance with rule 7A.12 of the Superannuation Industry Supervision Regulations 1994.

11.

Otherwise as provided for in these orders each party be declared to be the sole beneficial owner of all moneys in bank accounts, motor vehicles, shares in public or private companies, businesses, chattels, superannuation policies, furniture and furnishings and the like that stand in that party’s name or in that party’s possession as at the date of these orders.

12.

Pursuant to section 106A of the Family Law Act 1975 should either party neglect or refuse to sign any deed or document or instrument or real property transfer necessary to give effect to these orders within seven days of a written request to do so a registrar of the Federal Circuit Court of Australia Newcastle registry is appointed to execute such deed or document, instrument or real property transfer.

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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