Judgment delivered by Brown FM on 28 February 2006 as
[2006] FMCAfam 80
•28 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A & A (CORRIGENDUM) | [2006] FMCAfam 80 |
| FAMILY LAW – Property – marriage of over twenty years in duration – parties parents of three children – major item of property husband’s interest in defined benefits superannuation scheme – valuation issues – operative time – assessment of contributions – assessment of section 75(2) factors – just and equitable – consideration of proportion of immediately realisable assets to superannuation each party should receive. |
| Family Law Act 1975, ss.75, 79 Family Law (Superannuation) Regulations 2001 |
| Lee Steere v Lee Steere (1998) FLC 91-626 Ferraro v Ferraro (1993) FLC 92-335 Clauson v Clauson (1995) FLC 92-595 Wardman & Hudson (1978) FLC 90-466 Russell v Russell (1999) FamCA 187 Coghlan and Coghlan (2005) FLC 93-220 Pierce &Pierce (1999) FLC 92-844 Norbis v Norbis (1986) FLC 91-712 Wilkinson and Wilkinson (2005) FLC 93-222 Mallet v Mallet (1984) 156CLR 605 Danielian & Danielian [2003] FamCA 473 Waters & Jurek (1995) FLC 92-635 |
| Applicant: | P A A |
| Respondent: | R J A |
| File Number: | ADM3187 of 2004 |
| Judgment of: | Brown FM |
| Hearing dates: | 18 November 2005; 16 December 2005; 1 February 2006 |
| Delivered at: | Darwin |
| Delivered on: | 28 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr McG |
| Solicitors for the Applicant: | Nelson & Co |
| Counsel for the Respondent: | Mr McQ |
| Solicitors for the Respondent: | Gallagher & Co |
ORDERS
That within sixty days of the date of these orders the wife pay to the husband the sum of $60,000.00.
That contemporaneously with the payment referred to in Order 1 hereof the husband transfer to the wife, at the wife’s expense, the whole of his right, title and interest in the property known as and situate at ** K Street, M V in the state of South Australia and being the whole of the land comprised and described in Certificate of Title Register book Volume 5253 Folio 500.
That upon the transfer of the property referred to in Order 2 hereof the wife shall forthwith discharge the P C U overdraft facility secured against the aforesaid property and shall obtain the removal of the husband’s liability to pay any and all liabilities pursuant to the same.
That pursuant to section 90MT(4) of the Family Law Act 1975 a base amount of $127,000.00 be allocated to the wife in respect of the husband’s superannuation interest in the S A P S F and that pursuant to section 90MT(1)(a) whenever a splittable payment becomes payable in respect of that interest the wife is entitled to be paid the amount to be calculated in accordance with the Family Law (Superannuation) Regulations 2001 in respect of that base amount and there is a corresponding reduction in the entitlement of the husband.
That the trustee of the S A P S F, the husband and the wife in accordance with Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all such documents as may be necessary to calculate the payment entitlement of the wife in accordance with Order 4 hereof.
That Order 3 of these orders have effect from the operative time which shall be on 28 February 2004.
That unless specified in these orders and except for the purpose of enforcing any payment of money due under these or any subsequent orders, each party be solely entitled to the exclusion of the other to all property (including chose-in-action) in the possession of each party and superannuation standing in the name of each party as at this date.
That all applications herein be otherwise dismissed.
CORRIGENDUM
Judgment delivered by Brown FM on 28 February 2006 as [2006] FMCAfam 80
Amend paragraph 79 to read:
The issue is dealt with by division 6.1A of the Family Law (Superannuation) Regulations 2001 the application of which Mr C summarizes as follows: “since the superannuation interest includes a defined benefit interest, the base amount required to be updated with “interest” that is equivalent to movements in Average Weekly Ordinary Time Earnings (“AWOTE”) plus 2.5% per annum.”[1] Accordingly, neither party would suffer any specific prejudice if the operative time was back-dated. The base amount of the split and the amount remaining after the split would be increased by reason of this formula in the period between the operative time and the time when the fund concerned became aware of the split.
[1] See Mr C’s report dated 16 December 2005 at page 3
_____________________________________________________________________I certify that the preceding paragraph is a true copy of the Corrigendum to the Judgment [2006] FMCAfam 80 of Brown FM.
Associate: Cathy White
Date: 9 June 2006
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