Jellett and Jellett (No.2) - [2012] FMCAfam 983

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JELLETT & JELLETT (No.2)

[2012] FMCAfam 983

FAMILY LAW – Rulings as to form of final orders and as to costs.

Federal Magistrates Court Rules 2001
Family Law Act 1975, ss.117, 117(2A)(a)
Family Law Act (Superannuation) Regulations 2001

Prantage & Prantage [2012] FamCA 661
Re Wilcox Ex parte Venture Industries Pty Ltd (No.2) (1996) 72 FCR 151

Applicant:

MS JELLETT

Respondent:

MR JELLETT

File Number:

MLC 7550 of 2011

Judgment of:

Burchardt FM

Hearing date:

14 August 2012

Date of Last Submission:

14 August 2012

Delivered at:

Melbourne

Delivered on:

14 August 2012

REPRESENTATION

Counsel for the Applicant:

Ms Smallwood

Solicitors for the Applicant:

Macgregor Solicitors

Counsel for the Respondent:

Mr Williams

Solicitors for the Respondent:

Pearsons Barristers & Solicitors

ORDERS

THE COURT ORDERS THAT:

Pursuant to Rule 13.04 of the Federal Magistrates Court Rules 2001, orders are made in accordance with the attached minutes of orders proposed by the Applicant wife, as amended and including Order 2 of the Orders made 2 August 2012, which are placed on the Court file.
The Respondent husband pay the Applicant wife’s costs fixed at $33,265.00.
There be a stay for payment of seven days.

THE COURT DIRECTS THAT:

Service of these Orders on the Respondent husband be effected by Counsel telephoning the Respondent husband, if practicable.
The solicitors for the Applicant wife file three clean typed copies of these orders within seven days.

FINAL ORDERS:

That the husband pay to the wife the sum of $639,957.00 on or by 4.00pm on Wednesday, 21^st August, 2012 (“the due date”).
That in default of payment by the due date the husband’s interest in [omitted] Superannuation account number [omitted] (“the fund”) is to be split between the husband and wife (the wife being a non member) and 100% of the fund be specified as the base amount for the purposes of Section 90MJ(1)(c)(i) of the Family Law Act 1975 (as amended) in relation to the superannuation held by the husband in the fund.
That pursuant to Section 90MT(4) of the Family Law Act a base amount of 100% be allocated to the wife from the husband’s interest in the fund.
That pursuant to Section 90MT(1) of the Family Law Act 1975, whenever the trustee of the fund makes splittable payment out of the husband’s interest in the fund, the trustee shall:
(a)Pay to the wife or her administrators, executors and beneficiaries, heirs or assigns, the entitlement calculated in accordance with part 6 of the Family Law Act (Superannuation) Regulations 2001; and
(b)Make the corresponding reduction in the entitlement the husband would have had from the persevered amount in the fund but for this paragraph.
That paragraphs 2, 3, and 4 of these orders have effect from the operative time and the operative is seven (7) days from the date of these orders.
That the trustee of the fund shall do all such acts and things and sign all such documents that may be necessary save…

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.

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Details

Case: [2012] FMCAfam 983
Decision Date: 14 August 2012

CaseChat Overview and Summary

In the case of Jellett and Jellett (No. 2), the parties were involved in a property and financial dispute, with the matter being heard in the Federal Magistrates Court. The Applicant wife sought financial relief and property settlement following the breakdown of her marriage to the Respondent husband. The legal issues that arose in this case included the division of superannuation and other assets, as well as the determination of costs and any necessary restraining orders.

The court considered the relevant provisions of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 in reaching its decision. The court was required to decide on the division of the parties' superannuation, the allocation of costs, and the imposition of any necessary restraining orders to protect the wife's interests. The court determined that the husband's superannuation should be split between the parties, with 100% of the fund being specified as the base amount for the wife's entitlement. The court also imposed a restraining order on the husband to prevent him from altering his death benefit nomination or taking any action that would render his interest in the fund "no splittable payment."

In addition to the division of superannuation, the court ordered that the husband pay the wife's costs in the amount of $33,265.00. The court also made orders regarding the division of property, with the wife retaining sole use and benefit of a specific property, while the other assets were to be retained by the respective parties. The court dismissed all other outstanding applications and made several other orders to give effect to the financial and property settlement, including the execution of necessary documents and the allocation of liability for any encumbrances on the property.

The final orders of the court required the husband to pay the wife a specified sum by a particular date, with the consequence of his superannuation fund being split in the event of non-payment. The court also ordered that the husband execute a Transfer of Land for the property in question and pay the wife's costs. The court further provided for the exclusive possession of other property by each party, as well as the severance of any joint tenancy in real or personal estate.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Pursuant to Rule 13.04 of the Federal Magistrates Court Rules 2001, orders are made in accordance with the attached minutes of orders proposed by the Applicant wife, as amended and including Order 2 of the Orders made 2 August 2012, which are placed on the Court file.

2. The Respondent husband pay the Applicant wife’s costs fixed at $33,265.00.

3. There be a stay for payment of seven days.

THE COURT DIRECTS THAT:

4. Service of these Orders on the Respondent husband be effected by Counsel telephoning the Respondent husband, if practicable.

5. The solicitors for the Applicant wife file three clean typed copies of these orders within seven days.

FINAL ORDERS:

1. That the husband pay to the wife the sum of $639,957.00 on or by 4.00pm on Wednesday, 21st August, 2012 (“the due date”).

2. That in default of payment by the due date the husband’s interest in [omitted] Superannuation account number [omitted] (“the fund”) is to be split between the husband and wife (the wife being a non member) and 100% of the fund be specified as the base amount for the purposes of Section 90MJ(1)(c)(i) of the Family Law Act 1975 (as amended) in relation to the superannuation held by the husband in the fund.

3. That pursuant to Section 90MT(4) of the Family Law Act a base amount of 100% be allocated to the wife from the husband’s interest in the fund.

4. That pursuant to Section 90MT(1) of the Family Law Act 1975, whenever the trustee of the fund makes splittable payment out of the husband’s interest in the fund, the trustee shall:

(a) Pay to the wife or her administrators, executors and beneficiaries, heirs or assigns, the entitlement calculated in accordance with part 6 of the Family Law Act (Superannuation) Regulations 2001; and

(b) Make the corresponding reduction in the entitlement the husband would have had from the persevered amount in the fund but for this paragraph.

5. That paragraphs 2, 3, and 4 of these orders have effect from the operative time and the operative is seven (7) days from the date of these orders.

6. That the trustee of the fund shall do all such acts and things and sign all such documents that may be necessary save that, in accordance with the obligations set out in the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the trustee can calculate the entitlement of, and make payment to, the wife in accordance with paragraphs 3, 4 and 5 of these orders, with such payment to be made to the wife’s nominated superannuation fund.

7. That until the happening of any:

(a) Establishment of a separate account in the name of the wife and the fund;

(b) Transferring rolling over into another superannuation fund of the payment created by paragraphs 3,4, and 5; or

(d) The wife executing a waiver of rights within the meaning of section 90MZA of the Family Law Act 1975 in relation to the payment created by paragraphs 3, 4 and 5 hereof;

the husband be, and is hereby restrained by himself, his servants or agents, from executing a death benefit nomination in favour of any other person or doing any other act or thing which would render any part of his interest in the fund “no splittable payment”, within the meaning of regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001.

8. That in default of payment by the due date the husband’s interest in the [Mr Jellett] Superannuation Fund – 100% self managed fund (“the fund”) is to be split between the husband and wife (the wife being a non member) and 100% of the fund be specified as the base amount for the purposes of Section 90MJ(1)(c)(i) of the Family Law Act 1975 (as amended) in relation to the superannuation held by the husband in the fund.

9. That pursuant to Section 90MT(4) of the Family Law Act a base amount of 100% be allocated to the wife from the husband’s interest in the fund.

10. That pursuant to Section 90MT(1) of the Family Law Act 1975, whenever the trustee of the fund makes splittable payment out of the husband’s interest in the fund, the trustee shall:

(b) Make the corresponding reduction in the entitlement the husband would have had from the preserved amount in the fund but for this paragraph.

11. That paragraphs 8, 9 and 10 of these orders have effect from the operative time and the operative is seven (7) days from the date of these orders.

12. That the trustee of the fund shall do all such acts and things and sign all such documents that may be necessary save that, in accordance with the obligations set out in the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the trustee can calculate the entitlement of, and make payment to, the wife in accordance with paragraphs 3, 4 and 5 of these orders, with such payment to be made to the wife’s nominated superannuation fund.

13. That until the happening of any:

(a) Establishment of a separate account in the name of the wife and the fund;

(b) Transferring rolling over into another superannuation fund of the payment created by paragraphs 3,4, and 5; or

(d) The wife executing a waiver of rights within the meaning of section 90MZA of the Family Law Act 1975 in relation to the payment created by paragraphs 3, 4 and 5 hereof;

14. That the wife retain for her sole use and benefit the property known as and situate at Property B being more particularly Certificate of Title [omitted].

15. That otherwise each party retain all assets otherwise controlled by them or in their respective possession.

16. That in the event of the husband refusing or neglecting to comply the Registrar of the Federal Magistrates Court, Melbourne Registry, forthwith execute the documents necessary to give effect to all paragraphs of these orders in the name of the husband MR JELLETT and do all acts and things necessary to give validity and operation to them.

17. That the husband forthwith execute a Transfer of Land transferring all his right title and interest in the real estate known as and situate at Property B, Victoria Certificate of Title [omitted] to the wife before 4.00pm on 3 August, 2012.

18. The husband pay to the wife the sum of $33,265.00 towards her costs such payment to be made on or by 21st August, 2012.

19. That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

(a) Each party be solely entitled to the exclusion of the other to all other property including choses-in-action in the possession of such party as at the date of these Orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the husband);

(b) Insurance policies remain the sole property of the beneficiary named therein;

(c) 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;

(d) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

20. That all extant applications are otherwise 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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