Lindsay and Lindsay - [2015] FCCA 3016

FEDERAL CIRCUIT COURT OF AUSTRALIA

LINDSAY & LINDSAY

[2015] FCCA 3016

Catchwords:
FAMILY LAW – Property proceedings – long marriage – modest pool – need for proper caution in making mathematical assessment of contributions – Calderbank offers by both parties – just and equitable considerations.

Legislation:

Family Law Act 1975, ss.75(2), 79(2) & (4), 117(1)

Family Law (Superannuation) Regulations 2001
Family Law (Superannuation) Regulations 2010

Brandt v Brandt (1997) 22 Fam LR 97
Calderbank v Calderbank [1976] Fam 93
Chapman & Chapman (2014) FLC 93-592
Garrett & Garrett (1984) FLC 91-539
Pierce v Pierce (1999) FLC 92-844
Polonius & York [2010] FamCAFC 228

Applicant:

MS LINDSAY

Respondent:

MR LINDSAY

File Number:

CAC 1076 of 2014

Judgment of:

Judge Neville

Hearing date:

23 October 2015

Date of Last Submission:

13 November 2015

Delivered at:

Canberra

Delivered on:

18 December 2015

REPRESENTATION

Solicitor/Advocate for the Applicant:

Mr C Hill

Solicitors for the Applicant:

Longman Hill Solicitors, Orange, NSW

Counsel for the Respondent:

Self represented

THE COURT ORDERS THAT

The parties do all things and execute all documents necessary to distribute the proceeds of sale from the parties’ real estate in the following manner and priority :
(a)(omitted) School fees.
(b)60% of balance to Wife.
(c)40% of balance to Husband.
The Husband account to the Wife for the proceeds of the insurance claim in relation to (omitted) Truck and pay to the Wife 60% of total amount received.
With regard to the Husband’s Superannuation with (omitted) Super:-
(a)That Orders 12(a) to 12(f) inclusive are binding on the Trustees of the (omitted) Super Fund.
(b)That a base amount, calculated in accordance with the following formula:
60% of A :-
A = The Husband’s superannuation entitlements less taxation payable thereon.
is allocated, as required by s90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s interest in the (omitted) Super Fund.
(c)That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975;
(i)The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2010; and
(ii)The Husband’s entitlement to payments out of his interest in the (omitted) Super Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.
(d)That the Trustee of the (omitted) Super Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(i)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Husband by clauses (a) and/or (b) of this Order; and
(ii)pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the (omitted) Super Fund.
(e)That these Orders have effect from the operative time and the operative time for this Order is four (4) business days after the date of service of these Orders upon the Trustee…

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 Lindsay and Lindsay

Details

AGLC: Lindsay and Lindsay [2015] FCCA 3016
Case: [2015] FCCA 3016
Decision Date: 18 December 2015

CaseChat Overview and Summary

This matter concerned the distribution of property and superannuation interests between a husband and wife, as determined by Judge Neville. The dispute involved the division of proceeds from the sale of real estate, an insurance claim relating to a truck, and significant superannuation entitlements held by the husband in multiple superannuation funds. The court also addressed the allocation of outstanding debts.

The primary legal issues before the court were how to equitably divide the parties' assets and liabilities, particularly the husband's superannuation interests, and to make binding orders in relation to these divisions. This included determining the specific percentages of various asset pools to be allocated to each party and ensuring that the orders were enforceable against the trustees of the superannuation funds. The court was also required to consider the implications of the *Family Law Act 1975* and the *Family Law (Superannuation) Regulations 2001* in relation to superannuation splitting.

The court ordered that the proceeds of sale from the parties' real estate be distributed with 60% of the balance to the wife and 40% to the husband, after payment of school fees. The husband was also ordered to account to the wife for an insurance claim relating to a truck and pay her 60% of the amount received. Crucially, the court made detailed orders binding the trustees of several superannuation funds, allocating specific percentages of the husband's superannuation entitlements to the wife. These allocations varied between the funds, with some being 60% and others 50% of the husband's entitlements less taxation. The court also ordered that outstanding debts to Telstra, Bigpond, and for electricity be borne 60% by the husband and 40% by the wife. Each party was ordered to bear their own costs. The court also noted that the parties have equal shared parental responsibility for their children, who live with the mother, with the father spending time with them as agreed.

Orders

Orders of the court

The parties do all things and execute all documents necessary to distribute the proceeds of sale from the parties’ real estate in the following manner and priority :

(a) (omitted) School fees.

(b) 60% of balance to Wife.

The Husband account to the Wife for the proceeds of the insurance claim in relation to (omitted) Truck and pay to the Wife 60% of total amount received.

With regard to the Husband’s Superannuation with (omitted) Super:-

(a) That Orders 12(a) to 12(f) inclusive are binding on the Trustees of the (omitted) Super Fund.

(b) That a base amount, calculated in accordance with the following formula:

60% of A :-

A = The Husband’s superannuation entitlements less taxation payable thereon.

is allocated, as required by s90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s interest in the (omitted) Super Fund.

(i) The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2010; and

(ii) The Husband’s entitlement to payments out of his interest in the (omitted) Super Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.

(d) That the Trustee of the (omitted) Super Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

(i) calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Husband by clauses (a) and/or (b) of this Order; and

(ii) pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the (omitted) Super Fund.

(e) That these Orders have effect from the operative time and the operative time for this Order is four (4) business days after the date of service of these Orders upon the Trustee of the Funds.

(f) That liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

With regard to the Husband’s Superannuation with (omitted) Superannuation :-

(a) That Orders 12(a) to 12(f) inclusive are binding on the Trustees of the (omitted) Superannuation Fund.

(b) That a base amount, calculated in accordance with the following formula:

50% of A :-

A = The Husband’s superannuation entitlements less taxation payable thereon.

Is allocated, as required by s.90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s interest in the (omitted) Superannuation Fund.

(i) The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2010; and

(ii) The Husband’s entitlement to payments out of his interest in the (omitted) Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.

(d) That the Trustee of the (omitted) Superannuation Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

(ii) pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the (omitted) Superannuation Fund.

(e) That these Orders have effect from the operative time and the operative time for this Order is four (4) business days after the date of service of these Orders upon the Trustee of the Funds.

(f) That liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

With regard to the Husband’s Superannuation with (omitted) Superannuation :-

(a) That Orders 12(a) to 12(f) inclusive are binding on the Trustees of the (omitted) Superannuation Fund.

(b) That a base amount, calculated in accordance with the following formula:

60% of A :-

A = The Husband’s superannuation entitlements less taxation payable thereon.

is allocated, as required by s90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s interest in the (omitted) Superannuation Fund.