M and M - [2005] FCWA 73

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	M and M [2005] FCWA 73
CORAM:	THACKRAY J
HEARD:	15 JUNE 2005

& WRITTEN SUBMISSIONS

DELIVERED:	11 JULY 2005
FILE NO/S:	PT 6420 of 2003
BETWEEN:	[M] Applicant/Husband
AND
[M] Respondent/Wife
Catchwords:

PROPERTY SETTLEMENT -superannuation - alleged anomaly in prescribed valuation of defined benefit interest - appropriate mix of property and superannuation.

Legislation:
Family Law Act 1975, s 75(2), s 79, s 81, s 90MT(1), s 90MU(2) Family Law Legislation Amendment (Superannuation) Act 2001 Family Law Amendment (Annuities) Act 2004
Family Law (Superannuation) Regulations 2001

Family Law (Superannuation) Amendment Regulations 2005

Category: Not Reportable

Representation:
Counsel:

Applicant:	Ms P Keeley
Respondent:	Mr R Hooper

Solicitors:

Applicant:	Clairs Keeley
Respondent:	Anderson Kershaw

Case(s) referred to in judgment(s):

Cantarella & Cantarella (1976) FLC 90-056
Coghlan & Coghlan (2005) FLC 93-220
Dench & Dench (1978) FLC 90-469
Gardner and Gardner [2003] FamCA 249
Hickey & Hickey (2003) FLC 93-143
Rankin & Rankin [2005] FamCA 386
Wilkinson & Wilkinson (2005) FLC 93-222
Woollams & Woollams (2004) FLC 93-195

1 On 3 June 2005 I published my judgment in these proceedings concerning competing applications for settlement of property. I had been asked to determine the appropriate percentage division, but to refrain from making final orders until the parties could adduce further evidence and make submissions about the valuation/division of their superannuation. I decided a just and equitable outcome would be a 60:40 division in favour of the wife.
2 Both parties have now made further submissions (albeit the husband’s written submissions were prepared without the benefit of legal assistance). To finalise the proceedings I am required to determine:-

• the valuation of the husband’s superannuation;
• the mix of property/superannuation each party is to receive;
• who should receive the former matrimonial home.

Superannuation orders sought

3 In his amended application filed on 26 November 2004, the husband sought the following orders dealing with his superannuation:

“4.

Pursuant to Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s interest in the UniSuper Defined Benefit Plan and UniSuper Award Plus Plan the wife shall be entitled to be paid an amount calculated in accordance with the regulations using a base amount at the date of these orders in the sum of $54,000 in relation to the Defined Benefit Plan and $26,000 in respect of the husband’s interest in the UniSuper Award Plus Plan and that there be a corresponding reduction to the entitlement the husband would have had in the funds but for this order.

5.

Pursuant to Section 90MY the wife to bear the costs, expenses, fees and charges associated with implementation of this order.

6.

Pursuant to Section 90MD of the Family Law Act 1975 the operative time for the payment is the date of these orders.

7.

The husband shall, immediately upon receipt by him of this order, serve a copy upon the Trustee of the UniSuper Fund.

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 M and M

Details

AGLC: M and M [2005] FCWA 73
Case: [2005] FCWA 73
Decision Date: 11 JULY 2005

CaseChat Overview and Summary

The case of M and M was heard in the Family Court of Australia, involving a dispute between the parties regarding the division of assets, specifically superannuation, and the valuation of defined benefit interests. The parties were unable to reach an agreement on the appropriate division of their assets, particularly in relation to the husband's defined benefit interest in his superannuation fund. The wife argued that the valuation of the husband's superannuation was significantly lower than its actual value, resulting in an unequal distribution of the parties' assets.

The primary legal issue before the court was whether the wife's proposed valuation of the husband's defined benefit interest was appropriate, given the alleged anomaly in the prescribed valuation method used by the husband's superannuation fund. The court had to determine whether the wife's proposed valuation method was more accurate and whether it should be used to determine the appropriate division of the parties' assets. Additionally, the court needed to consider the appropriate mix of property and superannuation in the final property settlement.

In its decision, the court found that the wife's proposed valuation method was more accurate than the prescribed valuation method used by the husband's superannuation fund. The court noted that the prescribed valuation method resulted in a significant undervaluation of the husband's defined benefit interest, which had a substantial impact on the overall property settlement. The court also considered the appropriate mix of property and superannuation in the final settlement, taking into account the parties' respective contributions to the accumulation of the assets, their future needs, and the principle of equality in property settlements. The court ultimately determined that the wife's proposed valuation method should be used to determine the appropriate division of the parties' assets, resulting in a more equitable property settlement. The court ordered that the husband's defined benefit interest be valued using the wife's proposed method, and the parties' assets be divided accordingly.

Orders