MCGALLAHAN & MCGALLAHAN

[2012] FamCA 788

FAMILY COURT OF AUSTRALIA

MCGALLAHAN & MCGALLAHAN [2012] FamCA 788

FAMILY LAW – PROPERTY - Consent Orders - Where the parties have consented to Orders regarding the Husband's superannuation - Where the Court is satisfied the Orders are just and equitable in the circumstances

Family Law Act 1975 (Cth)

APPLICANT: Ms McGallahan

RESPONDENT: Mr McGallahan

FILE NUMBER: BRF 4966 of 1999

DATE DELIVERED: 14 September 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J Hogan

SOLICITOR FOR THE APPLICANT: Murdoch Lawyers

Orders by Consent

Revocation of Flag Order

1. That the orders 1 – 3 (inclusive) of the Orders made in this matter on 18 February 2004 are revoked.

Splitting Order in Favour of Wife

1. That a base amount of $700,000 be allocated, as required by Section 90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s Superannuation interest in the R Superannuation Fund. .

2. That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975:

   (a) the Wife is entitled, using the base amount allocated in the Order immediately preceding this Order, to the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (b)        the Husband’s entitlement (and the entitlement of any other person to payments out of the husband’s interest) in the R Superannuation Fund  is correspondingly reduced.

3. That the trustee of the R Superannuation Fund shall do all such acts and things and have signed all such documents as may be necessary to:

   (a)       calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Wife in the Order immediately preceding this Order; and

   (b)        pay the entitlement whenever the trustees make a splittable payment out of the Husband’s superannuation interest in the R Superannuation Staff Fund.

4. The operative time for the splitting order in Order 3 herein is 11 July 2012.

Wife to make application to withdraw super

1. The Wife shall within 7 days of the date of these Orders, make an election in accordance with either Regulation 7A.06 or Regulation 7A.03D (whichever applies) of the Superannuation Industry (Supervision) Regulations 1994, to transfer or rollover the transferable benefit or the non-member spouse interest (whichever applies) to another complying superannuation fund of the Wife’s choosing (“the Wife’s New Super Fund”).

2. Within 7 days of being notified by the trustee of the Wife’s New Super Fund that the Wife’s entitlement is an entitlement in her sole name, the Wife shall make an application to that trustee for the payment of benefits by way of a lump sum payment in the amount of $70,000.00 accompanied by a direction from the Wife to the trustee of the Wife’s New Super Fund that the lump sum be paid to the trust account of the solicitor for the Wife.

3. That each party pay their own costs of and incidental to this application.

Orders

1. The injunctions imposed by paragraph 2 of the Orders of Federal Magistrate Cassidy of 10 August 2012 be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McGallahan & McGallahan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 4966 of 1999

Ms McGallahan

Applicant

And

Mr McGallahan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The Applicant, Ms McGallahan, may be conveniently referred to as the first Wife of the Respondent, Mr McGallahan. The parties married in 1973, separated on 28 February 1999 and divorced on 10 July 2000. There are two adult children of that marriage.

2. The Respondent Husband remarried Ms M, who may be conveniently referred to as the second Wife, in 2003, and they divorced in December 2011.

3. The subject matter of this application, as indeed an application with respect to the second Wife, have some common elements. I note that consent Orders have been made, as I understand it, yesterday, with respect to the application pursued by the second Wife.

4. The first Wife’s application for property settlement was filed in this Court on 5 May 1999. On 30 August 2000, Warnick J made Orders for partial property settlement and adjourned the application for final property settlement. His Honour also made injunctive Orders with respect to the Husband’s superannuation. A flagging Order with respect to the Husband’s superannuation was made by Warnick J on 18 February 2004, and the final property proceedings remained adjourned.

5. On 3 August 2012, the first Wife, the current Applicant, filed an Amended Initiating Application seeking a range of interim and final Orders. It is that application which comes before me today. Relevantly, the Orders sought in that application include variations to the Orders made on 30 August 2000 and 18 February 2004 respectively as earlier mentioned.

6. The application sought by way of final Orders revocation of the flagging Order made on 18 February 2004 and final Orders with respect to the first Wife’s interest in the relevant superannuation fund. The Respondent, who appears for himself on this application, filed an affidavit responding to the application on 23 August 2012.

7. One matter earlier raised by the Husband was the question of the first Wife meeting payment of any fee for splitting the superannuation interest, but in the event, the Husband confirms to me this morning that, as appears on the proposed consent Orders that have been signed by the parties, that issue has not been specifically dealt with against the background of correspondence in the Exhibits I have admitted, confirming that the trustees of the fund would deal with the splitting fee equally as between the parties within the calculations of the fund.

8. In the result, the parties have been able to reach agreement as to final consent Orders with respect to the adjourned property proceedings.

9. Reference was also made to an Order made by Federal Magistrate Cassidy on 10 August 2012, which, amongst other things, imposed some injunctions by paragraph 2 of those Orders. In addition to the matters specifically addressed by way of consent in the Minute of Consent Orders to which I have referred, the Husband essentially seeks, and the first Wife does not oppose, the discharge of those injunctions and I will include an Order to that effect.

10. I note that as appears from the reasons for judgment of Warnick J that have been referred to, the question of the value of the Husband’s superannuation interest has been earlier addressed, albeit that the Husband had raised issues, including on the current application, with respect to that valuation. In the event, I am satisfied that the parties respectively have been able to address the relevant issues concerning a just and equitable outcome concerning the splitting of the superannuation interest vis-à-vis the earlier Orders for property settlement that were made by Warnick J.

11. In the circumstances, I am satisfied that the Minutes of Consent Orders placed before me effect a just and equitable outcome and I make Orders in those terms as now initialled by me and placed with the file.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 14 September 2012.

Associate: 

Date:  14 September 2012