KELLY & KELLY - [2011] FamCA 388

FAMILY COURT OF AUSTRALIA

KELLY & KELLY

[2011] FamCA 388

FAMILY LAW - PROPERTY SETTLEMENT – Contributions – husband was the primary income earner – husband earned income additional to salary through management of his share portfolio – husband had specialist skill and expertise in share investment – wife primarily responsible for the day to day care of children and household – wife supported the husband in his employment

FAMILY LAW - PROPERTY SETTLEMENT – Adjustments – husband responsible for care of children since separation – husband responsible for financial support of children – both parties have income earning capacity – wife’s capacity to earn income less than the husband – husband required to sell shares to purchase a home for children – capital gains tax liability – capital gains tax liability excluded from asset pool – adjustment for capital gains tax liability

Family Law Act 1975 (Cth) ss 75(2), 79(4)

IABH & HRBH [2010] FamCA
Rosati v Rosati (1998) FLC 92-804

APPLICANT:

Ms Kelly

RESPONDENT:

Mr Kelly

FILE NUMBER:

SYC

918

2009

DATE DELIVERED:

27 May 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Cleary J

HEARING DATE:

15 & 16 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T Hodgson

SOLICITOR FOR THE APPLICANT:

Julie Singleton Solicitors

COUNSEL FOR THE RESPONDENT:

Mr G Foster

SOLICITOR FOR THE RESPONDENT:

Delaney Lawyers

Orders

That all prior orders for payments by the husband to the wife be discharged as and from the date at which each stands paid.
That for the purposes of this order “the fund” means the Corporation 1 Staff Superannuation Plan:
2.1That a base amount of $500,000 is allocated, as required by s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”) to the wife out of the husband’s interest in the fund.
2.2That in accordance with paragraph s 90MT(1)(a) of the Act 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 out of the husband’s interest in the fund is correspondingly reduced.
2.3That the trustee of the fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 the wife’s entitlement created by order 2.2 hereof and pay to the wife her entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the fund.
2.4That orders 2.1 to 2.3 have effect from the operative time and the operative time is 3 days after service of this order on the trustee.
2.5That after service of the payment split notice pursuant to r 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such acts and things and sign all such documents as may be necessary, including but not…

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 KELLY & KELLY

Details

AGLC: KELLY & KELLY [2011] FamCA 388
Case: [2011] FamCA 388
Decision Date: 27 May 2011

CaseChat Overview and Summary

In *Kelly & Kelly*, Cleary J considered a property settlement dispute between a husband and wife. The husband was the primary income earner, deriving additional income from managing his share portfolio through specialist skill and expertise. The wife's primary role was the day-to-day care of the children and household, and she supported the husband in his employment.

The court was required to determine how to divide the parties' assets, taking into account their respective contributions, earning capacities, and the practical implications of asset realisation. Key issues included the wife's entitlement to a portion of the husband's superannuation, a significant cash payment to the wife, and the allocation of other personal property. The court also had to consider the impact of capital gains tax liability arising from the husband's potential sale of shares to purchase a home for the children, and whether this liability should be excluded from the asset pool and adjusted for.

Cleary J applied principles of property settlement under the *Family Law Act 1975* (Cth). The court recognised the husband's financial contributions, including those from his share portfolio, and the wife's non-financial contributions as homemaker and caregiver. The court ordered a significant allocation from the husband's superannuation to the wife, along with a substantial cash payment. Crucially, the court excluded the capital gains tax liability from the asset pool, making an adjustment to account for this potential cost. The court also declared each party the sole owner of items in their possession.

Orders

Orders of the court

That all prior orders for payments by the husband to the wife be discharged as and from the date at which each stands paid.

That for the purposes of this order “the fund” means the Corporation 1 Staff Superannuation Plan:

2.1 That a base amount of $500,000 is allocated, as required by s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”) to the wife out of the husband’s interest in the fund.

2.2 That in accordance with paragraph s 90MT(1)(a) of the Act 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 out of the husband’s interest in the fund is correspondingly reduced.

2.3 That the trustee of the fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 the wife’s entitlement created by order 2.2 hereof and pay to the wife her entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the fund.

2.4 That orders 2.1 to 2.3 have effect from the operative time and the operative time is 3 days after service of this order on the trustee.

2.5 That after service of the payment split notice pursuant to r 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r 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 fund to a superannuation fund of the wife’s choosing in accordance with r 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

2.6 That the husband pay to the wife the sum of $847,355 within 42 days of the date of these orders.

That each party is declared the sole legal and beneficial owner of all items currently in his/her possession including but not limited to furniture, furnishings, jewellery, cash, motor vehicles, bank accounts and chattels.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.