FAMILY COURT OF AUSTRALIA
| MAYNE & MAYNE (NO 2) | [2012] FamCAFC 90 |
| FAMILY LAW – APPEAL – PROPERTY – Re-exercise of trial judge’s discretion –Where the main non-superannuation assets of the parties were constituted by two properties which entered the property pool through an inheritance of the wife – Where the contributions of the parties were uncontentious save for the wife’s financial contribution by way of a series of inheritances – Where the wife could not account for expenditure of part of one of the inheritances and the sum of this expenditure represented a significant percentage of the property pool – Faulks DCJ & May J agreed contentious amount not to be treated as add-back but considered as s 75(2) factor, or at contributions stage – Strickland J in dissent, contentious amount able to be considered as add-back – Where the contributions to non-superannuation assets were considered to be 70 per cent to the wife and 30 per cent to the husband – Where the contributions to the superannuation assets were considered to be 65 per cent to the husband and 35 per cent by way of direct and indirect contributions to the wife – Where the value of the parties non-superannuation assets has decreased since the trial – Where the husband’s superannuation has grown significantly since the trial however no account of the nature of the growth was provided – Where no evidence as to the prospect of selling a portion of one of the properties was provided – Where the just and equitable requirement in this case requires that both parties receive a portion of non-superannuation and superannuation assets. |
| Family Law Act 1975 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 Hickey & Hickey & Attorney-General (Intervenor) (2003) FLC 93-143 Stanford & Stanford [2012] FamCAFC 1 Warner & Warner [2008] FamCAFC 156 |
| APPELLANT: | Ms Mayne |
| RESPONDENT: | Mr Mayne |
| FILE NUMBER: | CAC | 114 | of | 2007 |
| APPEAL NUMBER: | EA | 78 | of | 2009 |
| DATE DELIVERED: | 19 June 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ, May & Strickland JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 5 June 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 559 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Watkins |
| SOLICITOR FOR THE APPELLANT: | Strong Law Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Howard |
| SOLICITOR FOR THE RESPONDENT: | Farrar Gesini & Dunn |
Orders
In accordance with Section 90MT(4) of the Family Law Act 1975 (Cth), a base amount of $104,880 is allocated to the wife from the husband’s interest in the N Superannuation Scheme.
In accordance with Section 90MT(1)(a) of the Family Law Act 1975 (Cth):
(i)the wife (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocating in order (1), the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(ii)the entitlement of the husband in the N Superannuation Scheme (or…
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- Mayne and Mayne (No 2) [2012] FamCAFC 90
- Case
- [2012] FamCAFC 90
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the appropriate base amount to be allocated to the wife from the husband’s superannuation. This involved interpreting and applying sections 90MT(4) and 90MT(1)(a) of the Family Law Act 1975 (Cth), as well as the Family Law (Superannuation) Regulations 2001 (Cth). The court also had to address the obligations of the trustee of the superannuation scheme and ensure that the wife's entitlements were calculated and paid according to the law.
The court found that a base amount of $104,880 should be allocated to the wife. It mandated the trustee to perform necessary actions to calculate and pay this amount in accordance with the regulations. The court further specified that any payments made by the trustee after fulfilling its obligations regarding the wife’s entitlements should not be considered splittable payments. The orders also included provisions for the sale of specified properties to discharge any outstanding payments and interest. Additionally, the court made provisions for the division of personal property and retained assets.
The court's final orders included the allocation of the specified base amount, instructions for the trustee, requirements for the sale of certain properties to satisfy financial obligations, and the division of personal property. The orders were designed to ensure compliance and enforceability, with provisions for interest and additional steps if the wife failed to meet her payment obligations.
Orders
Orders of the court
1.
In accordance with Section 90MT(4) of the Family Law Act 1975 (Cth), a base amount of $104,880 is allocated to the wife from the husband’s interest in the N Superannuation Scheme.
2.
In accordance with Section 90MT(1)(a) of the Family Law Act 1975 (Cth):
(i) the wife (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocating in order (1), the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(ii) the entitlement of the husband in the N Superannuation Scheme (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.
3.
The trustee of the N Superannuation Scheme (“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 (Cth) the entitlement awarded to the wife in the immediately preceding clause of this order; and
(ii) pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the N Superannuation Scheme.
4.
Orders 1 to 3 (inclusive) have effect from the Scheme operative time and Scheme the operative time is four days after service of these orders on the trustee.
5.
Within the time prescribed under the governing rules of the N Superannuation Scheme, the wife shall request the trustee of the Scheme to observe its obligations in relation to the wife’s entitlement in accordance with the requirements of the Superannuation Act 1916 (NSW).
6.
In accordance with the Family Law (Superannuation) Regulations 2001, any payments from the husband’s superannuation interest made after the trustee has acted under its governing rules in relation to the wife’s entitlements are not splittable payments.
7.
The above orders bind the Trustee.
8.
The wife pay to the husband the sum of $227,117 (“the payment”) within 90 days of the date of these orders (“the due date”).
9.
If the whole of the payment has not been made by the due date:
(i) the wife shall, in addition to the payment, pay to the husband interest on the payment or the amount outstanding from time to time at the rate prescribed by the Family Law Rules to be calculated from the due date to the date of payment; and
(ii) the wife shall do all things necessary to sell either property known as Property A in C, or Property S in C, at her election.
10.
The wife do all things necessary to cause the proceeds of the sale of the property to be distributed as follows:
(i) to pay all costs, commissions and expenses of the sale;
(ii) to pay the usual rate adjustments;
(iii) to pay the amount required to discharge any encumbrances secured over the properties;
(iv) to pay so much of the payment as is then outstanding together with interest in accordance with order 8 and 9(i) to the husband;
(iii) to pay the balance to the wife.
11.
Liberty be reserved to either party to apply to the Federal Magistrates Court on seven days notice to the other with respect to the terms and conditions of the sale.
12.
If either party refuses, fails or neglects to execute any document necessary to put these orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served on behalf of the party alleging this, the Registrar of the Family Court of Australia at Canberra be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such document in the name of such party.
13.
The furniture and chattels in the home situated on the
S property and the farm machinery, tools and stock situated on that property and the A property be retained by the wife.
14.
Unless otherwise specified in these orders, each party be solely entitled to the exclusion of the other to all other property including motor vehicles, bank accounts and shares in the possession of such party at the date of these orders.
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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