Manwaring and Manwaring - [2011] FMCAfam 50

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANWARING & MANWARING

[2011] FMCAfam 50

FAMILY LAW – Property distribution – superannuation only – 3 year marriage – 5 year relationship – the five years since separation – each has superannuation at commencement of the relationship – husband has more than the wife but also has debts at the commencement of the marriage – wife has other assets – wife’s redundancy package accessed just prior to the end of the marriage – no assets at separation, only debts and superannuation – wife solely contributes to 5 years of post separation contributions pursuant to s.79(4)(c) – husband and wife each work full time father chooses not to spend any meaningful time with the children – s.75(2) factors favour uplift in the wife’s favour – splitting order.

Family Law Act 1975 (Cth), ss.90MT (1)(a); 90MT (1)(b)

W and W EA 35 of 2004 (Bryant CJ, Finn, Coleman, Warnick and O’Ryan JJ)
Edwards v Edwards [2009] FAMCAFC 139 (Finn, Coleman and Cronin JJ);
C v C (2005) 33 Fam LR 414;
SDM v JCM [2006] FamCA 840 (Warnick, May and Boland JJ)
Dorney & Dorney [2007] FMCAFAM 617 (Walters FM);
C and C [2006] FamCA 528 (Bryant CJ, Warnick and Boland JJ);
Kapoor v Kapoor [2010] FAMCAFC 113 (Finn J)
BAR and JMR (No.2) [2005] FamCA 386 (Young J)
In the Marriage of Parshen (1996) 21 Fam LR 199;
T v T (2006) FLC 93-263 (Watts J);
Williams & Williams [2007] FamCA 313 (Kay, Coleman & Stevenson JJ);
Pierce v Pierce (1999) FLC 92-844;
Waters & Jurek (1995) FLC 92-635;
De Angelis & De Angelis (2003) FLC 93-133

Applicant:

MS MANWARING

Respondent:

MR MANWARING

File Number:

CSC 491 of 2008

Judgment of:

Willis FM

Hearing date:

23 September 2010

Date of Last Submission:

23 September 2010

Delivered at:

Cairns

Delivered on:

4 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr G Victoire

Solicitors for the Applicant:

Miller Harris Lawyers

Counsel for the Respondent:

Mr G Burridge

Solicitors for the Respondent:

Slater & Gordon

ORDERS

In accordance with section 90MT (1)(a) of the Family Law Act 1975 (“the Act”), wherever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of the respondent husband from his interest in the [P] Superannuation Scheme (“[P]”), the applicant Wife is entitled to be paid, by the trustee, [omitted], the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $183,695.00 and there is a corresponding reduction in the entitlement the respondent husband would have had but for the Orders.
The operative time for Order 1 is seven business days after the service of the Final Orders of the Trustee.
That each party be at liberty to apply in relation to the implementation of the Orders affecting the superannuation interest.
That Order 1, 2 and 4 are binding on the Trustee of the Fund.
Until such time as the superannuation split to the Wife…

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 Manwaring and Manwaring

Details

AGLC: Manwaring and Manwaring [2011] FMCAfam 50
Case: [2011] FMCAfam 50
Decision Date: 4 April 2011

CaseChat Overview and Summary

In the case of Manwaring and Manwaring, the Family Court of Australia was presented with a dispute concerning the division of superannuation benefits between the parties, following their separation. The husband had an interest in a superannuation scheme, and the wife sought a proportion of this interest pursuant to the Family Law Act 1975.

The court was required to determine the method of calculating the wife's entitlement to the husband's superannuation benefits, as well as the implications of these entitlements on the division of other assets and liabilities. The court also had to consider the provisions of the Family Law (Superannuation) Regulations 2001, and the specific provisions of the Family Law Act 1975 relating to the division of property upon the breakdown of a marriage.

In its reasoning, the court found that the wife was entitled to a specified proportion of the husband's superannuation benefits, calculated using a base amount of $183,695.00 as outlined in the Family Law (Superannuation) Regulations 2001. The court also determined that the husband was to provide the wife with notice before accessing his superannuation benefits, and that he was to indemnify the wife for any liabilities associated with a joint loan account. Additionally, the court made orders regarding the division of other property and liabilities between the parties, and the responsibilities of each party in relation to those assets.

Orders

Orders of the court

In accordance with section 90MT (1)(a) of the Family Law Act 1975 (“the Act”), wherever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of the respondent husband from his interest in the [P] Superannuation Scheme (“[P]”), the applicant Wife is entitled to be paid, by the trustee, [omitted], the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $183,695.00 and there is a corresponding reduction in the entitlement the respondent husband would have had but for the Orders.

The operative time for Order 1 is seven business days after the service of the Final Orders of the Trustee.

That each party be at liberty to apply in relation to the implementation of the Orders affecting the superannuation interest.

That Order 1, 2 and 4 are binding on the Trustee of the Fund.

Until such time as the superannuation split to the Wife pursuant to these Orders can be rolled over into a separate account for the Wife:

(a) The Husband shall provide the Wife with no less than 28 days notice before such time as he elects to retire from and/ or take voluntary retirement and/ or for any reason accept or become entitled to access in whole or in part his entitlement in the Fund;

(b) The Husband shall direct and authorise the Trustee of the Fund to communicate with the Wife and/ or any person authorised by him in writing.

That the Husband shall be responsible for all repayments as and when they fall due and other liabilities for the Bank of Queensland loan account, account number [omitted] held in the joint names, and shall indemnify the Wife in respect of all future liabilities associated with this loan as and when they fall due.

That the Wife retain her right, title and interest in the real property held in her sole name at Property M, more particularly described as Lot [omitted] and will indemnify the Husband in regards to any liabilities and outgoings of the real property.

Unless otherwise specified in these Orders, and except for the purposes of enforcing payment of any money due under these or any subsequent orders, each part is solely entitled to the exclusion of the other to all property in the possession of such party at this date.

Each party is solely liable for and will indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these Orders.

10.

If either party refuses or neglects to sign (within 14 days of a written request to do so) any document necessary to give effect to the terms of these Orders, the Registrar of the Federal Magistrates Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Family Law Act 1975 to sign such documents on behalf of each party.

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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