FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lambers & Earle (No 2) [2024] FedCFamC2F 816
File number(s): MLC 624 of 2022 Judgment of: JUDGE STEWART Date of judgment: 31 May 2024 Catchwords: FAMILY LAW – PROPERTY – Wife’s response proceeded undefended, notwithstanding Husband attended at Court – Parenting proceedings previously resolved – Third party equitable claim against former matrimonial home previously resolved – Loss or wastage from Husband’s criminal activity – Evidentiary gaps in Wife’s case – Court cannot speculate as to facts – Failure by Wife to afford procedural fairness to superannuation trustee – Draft orders to be provided to superannuation trustee Legislation: Family Law Act 1975 (Cth) ss 75, 75(2), 79, 79(2), 102NA
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r 10.27
Cases cited: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172; (2000) 74 ALJR 1206; (2000) 173 ALR 648
Chang & Su [2002] FamCA 156; (2002) FLC 93-117; (2002) 29 Fam LR 406
Kowaliw & Kowaliw [1981] FamCA 70; (1981) FLC 91-092
Morgan & Valverde [2022] FedCFamC1A 133; (2022) FLC 94-100; (2022) 66 Fam LR 585
Zane & Allan [2008] FamCAFC 115; (2008) FLC 93-378
Division: Division 2 Family Law Number of paragraphs: 38 Date of hearing: 29 May 2024 Place: Melbourne Counsel for the Applicant: The Applicant appearing in person Counsel for the Respondent: Mr Gorman (solicitor) Solicitor for the Respondent: Whitehead Legal Services Pty Ltd ORDERS
MLC 624 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LAMBERS
Applicant
AND: MS EARLE
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
31 MAY 2024
THE COURT ORDERS THAT:
1.All extant applications be adjourned for Mention to 1 July 2024 at 10.00am ("the adjourned date").
2.The draft orders annexed hereto and marked with the letter A be served on the Trustees of the Husband's Super Fund 1 Account (the "Superannuation Trustee") by the solicitors for the Wife AND IT IS REQUESTED THAT the Superannuation Trustee respond with regard to procedural fairness prior to the adjourned date.
3.Upon the Wife's solicitor forwarding to the Chambers of Her Honour Judge Stewart written evidence that procedural fairness has been afforded to the Superannuation Trustee, orders will be made in Chambers with no further need for appearance by the parties, subject to any amendments required by the Superannuation Trustee.
4.The Wife make, file, and serve any written submissions as to costs within 14 days of the date of these orders.
5.The Husband respond to the Wife's costs application (if any) within 14 days of service of the Wife's submissions upon him, with liberty reserved for the Husband to make further viva voce submissions on the adjourned date.
6.The ex tempore reasons made this day be transcribed, settled by Her Honour Judge Stewart, and made available to the parties.
“A”
7.Of the $135,829 (plus interest) of moneys in the B Company trust account resulting from the sale of the former matrimonial home at…
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CaseChat Overview and Summary
The court was tasked with resolving several key legal issues. These included determining the appropriate division of the sale proceeds from the former matrimonial home, the calculation of the wife's entitlement to the husband's superannuation, and ensuring procedural fairness was observed in relation to the superannuation trustee. The court had to consider the wife's failure to provide procedural fairness to the superannuation trustee and the evidential gaps in her case, noting that it could not speculate on the facts. The court also needed to address the impact of the husband's criminal activities on the property settlement.
In its reasoning, the court acknowledged that the wife's response was undefended but noted the husband's attendance at court. It awarded $20,000 to the husband from the sale proceeds of the former matrimonial home, with the remainder to be deposited into a legal practice trust account. The court calculated the wife's entitlement to the husband's superannuation interest under the Family Law Act and the Family Law (Superannuation) Regulations, reducing the husband's entitlement correspondingly. The court directed the superannuation trustee to take necessary actions to calculate and pay the wife's entitlement. The court also ordered that the husband retain a specific motor vehicle, with the wife to transfer it to him. The court mandated that the draft orders be served on the superannuation trustee and requested a response regarding procedural fairness before the adjourned date. The final orders included adjournment of all applications, requirements for serving draft orders on the superannuation trustee, and provisions for the wife to submit written evidence of procedural fairness to the trustee. The court also outlined the process for making orders and handling costs.
The final orders included adjournment of all applications, requirements for serving draft orders on the superannuation trustee, and provisions for the wife to submit written evidence of procedural fairness to the trustee. The court also outlined the process for making orders and handling costs. The operative time for the orders was set as four business days after the certified copy of the orders was served on the superannuation trustee.
Orders
Orders of the court
MLC 624 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR LAMBERS
Applicant
AND:
MS EARLE
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
31 MAY 2024
THE COURT ORDERS THAT:
1. All extant applications be adjourned for Mention to 1 July 2024 at 10.00am ("the adjourned date").
2. The draft orders annexed hereto and marked with the letter A be served on the Trustees of the Husband's Super Fund 1 Account (the "Superannuation Trustee") by the solicitors for the Wife AND IT IS REQUESTED THAT the Superannuation Trustee respond with regard to procedural fairness prior to the adjourned date.
3. Upon the Wife's solicitor forwarding to the Chambers of Her Honour Judge Stewart written evidence that procedural fairness has been afforded to the Superannuation Trustee, orders will be made in Chambers with no further need for appearance by the parties, subject to any amendments required by the Superannuation Trustee.
4. The Wife make, file, and serve any written submissions as to costs within 14 days of the date of these orders.
5. The Husband respond to the Wife's costs application (if any) within 14 days of service of the Wife's submissions upon him, with liberty reserved for the Husband to make further viva voce submissions on the adjourned date.
6. The ex tempore reasons made this day be transcribed, settled by Her Honour Judge Stewart, and made available to the parties.
“A”
7. Of the $135,829 (plus interest) of moneys in the B Company trust account resulting from the sale of the former matrimonial home at C Street, Suburb D, Victoria, be awarded to the parties in the following manner:-
(a) $20,000 to the Husband; and
(b) The remainder thereon to be deposited into the Whitehead Legal Services Pty Ltd Law Practice Trust Account, E Bank, BSB: …, Account Number: …94.
8. Pursuant to section 90XT(4) of the Family Law Act 1975 (Cth), a base amount of sixty-five thousand dollars forty-eight thousand, two hundred and seventy dollars ($48,270) to the Wife MS EARLE out of the Husband MR LAMBERS’ interest in his Super Fund 1.
9. Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth):-
(a) The Wife (or her administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b) The entitlement of the Husband in the Super Fund 1 (or the entitlement of such other person who becomes entitled to receive a payment out of the Husband's superannuation interest) is correspondingly reduced by force of this order.
10. The Trustee of the Super Fund 1 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 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement of the Wife as set out in the orders preceding this order; and
(b) Pay the entitlement whenever the Trustee makes a splitable payment from the Husband's superannuation interest in Super Fund 1.
11. These orders have effect from the operative time and the operative time for the purpose of these orders is four (4) business days after a certified copy of these orders is served on the Superannuation Trustee.
12. The Husband retain Motor Vehicle 1 and the Wife do all such acts and things as may be necessary to transfer that Motor Vehicle 1 to the Husband.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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