Jillett and Jillett

Case [2018] FamCA 913

FAMILY COURT OF AUSTRALIA

JILLETT & JILLETT [2018] FamCA 913
FAMILY LAW – PROPERTY – Where long marriage – Where both parties introduced significant assets into the relationship both at cohabitation and thereafter – Where the husband’s assets comprise significant working rural properties – Where husband received a significant asset by way of his parents “succession planning” – Where husband asserts debt obligations arising from such arrangements – Where not appropriate to include such uncertain obligations in the pool for adjustment – Where parties’ contributions overall found to be equal – Where no further adjustment called for.
Family Law Act 1975 (Cth) ss 75, 79
Limitation Act 1969 (NSW) s 54
Bevan & Bevan [2014] FamCAFC 19
Blair v Nugent (1846) 3 Jo & Lat 658
Chapman & Chapman [2014] FamCAFC 91
Dickons & Dickons [2012] FamCAFC 154
Giacci v Giacci Holdings Pty Ltd [2010] WASCA 233
Hipworth v Mahar (1957) CLR 335
Pandelis & Pandelis [2018] FamCAFC 66
Rodgers & Rodgers (No 2) [2016] FamCAFC 104
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stage Club Ltd v Millers Hotels Pty Ltd [1981] HCA 71
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
APPLICANT: Ms Jillett
RESPONDENT: Mr Jillett
FILE NUMBER: DUC 356 of 2015
DATE DELIVERED: 9 November 2018
PLACE DELIVERED: Parramatta
PLACE HEARD: Parramatta
JUDGMENT OF: Foster J
HEARING DATE: 28 and 30 August 2017 and 17 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom SC
SOLICITOR FOR THE APPLICANT: Campbell Paton & Taylor
COUNSEL FOR THE RESPONDENT: Mr Millar
SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn

Orders

  1. That the husband pay to the wife the sum of $321,337.50 within three months from the date of these orders.

  2. That a base amount of $140,000.00 is allocated to the wife out of the husband’s interest in the B Super Fund (“the fund”) Member No ...

  3. That in accordance with section 90MT(1)(a) of the Family Law Act 1975:

    (a)The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount referred to in the above; and

    (b)The husband’s entitlement (and the entitlement of such other person to whom splittable payments may be made) to payments out of the husband’s interest in the Fund is correspondingly reduced.

  4. That the trustee of the B Super Fund shall do all acts and things and sign all such documents as may be necessary to:

    (a)Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement of the wife created by order 2 of these orders; and

    (b)Pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the Fund.

  5. That Order (2) have effect from the operative time and the operative time is four business days from the date of service of sealed orders on the trustee and the trustee shall be at…

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Jillett and Jillett [2018] FamCA 913
Case
[2018] FamCA 913
Decision Date

CaseChat Overview and Summary

In Jillett and Jillett, Foster J of the Federal Circuit and Family Court of Australia made orders concerning the division of property between a husband and wife. The dispute involved the allocation of assets, including superannuation interests, as part of their financial settlement.

The court was required to determine how the parties' superannuation interests should be divided and to make orders for the payment of a sum of money to the wife. This involved considering the provisions of the *Family Law Act 1975* and the *Family Law (Superannuation) Regulations 2001* in relation to superannuation splitting.

Foster J ordered the husband to pay a sum of $321,337.50 to the wife within three months. Additionally, the court allocated base amounts from the husband's interests in two superannuation funds, B Super Fund and C Super, to the wife. These allocations were made pursuant to section 90MT(1)(a) of the *Family Law Act 1975*, entitling the wife to payments calculated in accordance with the relevant regulations, and correspondingly reducing the husband's entitlements from those funds. The trustees of both superannuation funds were directed to take necessary steps to calculate and pay the wife's entitlements. The orders concerning the superannuation splitting were to take effect four business days from service on the trustees, who were granted liberty to apply to the court within that period. The parties were also granted liberty to apply regarding the implementation or enforcement of the orders.

Orders

Orders of the court

1.

That the husband pay to the wife the sum of $321,337.50 within three months from the date of these orders.

2.

That a base amount of $140,000.00 is allocated to the wife out of the husband’s interest in the B Super Fund (“the fund”) Member No ...

3.

That in accordance with section 90MT(1)(a) of the Family Law Act 1975:

(a) The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount referred to in the above; and

(b) The husband’s entitlement (and the entitlement of such other person to whom splittable payments may be made) to payments out of the husband’s interest in the Fund is correspondingly reduced.

4.

That the trustee of the B Super Fund shall do all acts and things and sign all such documents as may be necessary to:

(a) Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement of the wife created by order 2 of these orders; and

(b) Pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the Fund.

5.

That Order (2) have effect from the operative time and the operative time is four business days from the date of service of sealed orders on the trustee and the trustee shall be at liberty to apply to the Court in relation to these orders within that four day period.

6.

That a base amount of $68,000.00 is allocated to the wife out of the husband’s interest in C Super (“the second fund”) Member No ...

7.

That in accordance with section 90MT(1)(a) of the Family Law Act 1975:

(a) The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount referred to in the above; and

(b) The husband’s entitlement (and the entitlement of such other person to whom splittable payments may be made) to payments out of the husband’s interest in the Second Fund is correspondingly reduced.

8.

That the trustee of the C Super shall do all acts and things and sign all such documents as may be necessary to:

(a) Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement of the Wife created by order 2 of these orders; and

(b) Pay the entitlement whenever the trustee makes a splittable payment out of the Husband’s interest in the said fund.

9.

That Order (6) have effect from the operative time and the operative time is four business days from the date of service of sealed orders on the trustee and the trustee shall be at liberty to apply to the Court in relation to these orders within that four day period.

10.

That the parties have 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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