Moreton and Moreton - [2006] FMCAfam 449

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MORETON & MORETON

[2006] FMCAfam 449

FAMILY LAW – Property settlement – previous partial property orders – whether jurisdiction of the Court exhausted in relation to property subject to earlier orders – distinction, if any between partial and interim property orders – factors to consider – effect of actions of both parties subsequent to partial distribution – growth in superannuation entitlements – factors to consider in determining justice and equity.

Family Law Act 1975 (Cth), ss.75, 79, 79(2), 79(4)(a)-(c), 79(5), 79(6), 79(7), 80, 80(j), 90MT(1)(a)
Child Support (Assessment) Act 1989

In the Marriage of Lee Steere & Lee Steere
In the Marriage of Ferraro & Ferraro
In the Marriage of Clauson & Clauson
Russell v Russell (1999) FLC 92-877
DW & GT (2005) FLC 93-217
Z & Z (2005) FLC 93-241
S & S (2002) FMCA Family 295
Harris & Harris (1993) FLC 92-378
Burridge (1980) FLC 90-902
Bassi and KD Sales Force Specialists Pty Ltd v Maas (1999) FLC 92-867
Taylor and Taylor (1977) FLC 90-226; (1977) 3 Fam. L.R. 11,220
King and King (1977) FLC 90-229; (1977) 3 Fam. L.R. 11,564
Jarrett & Lukosius [2006] FMCAfam 139

Applicant:

MS MORETON

Respondent:

MR MORETON

File number:

TVM 2224 of 2000

Judgment of:

Coker FM

Hearing date:

8 June 2006

Date of last submission:

8 June 2006

Delivered at:

Townsville

Delivered on:

25 August 2006

REPRESENTATION

Counsel for the Applicant:

Mrs Pagani

Solicitors for the Applicant:

Miller Harris Lawyers

Counsel for the Respondent:

Mrs Willis

Solicitors for the Respondent:

Mellick Smith & Associates

ORDERS

That by way of full and final settlement of property as between the husband and the wife:

That 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 Q Super Fund (the fund) the wife shall be entitled to be paid an amount calculated in accordance with part 6(6) of the Family Law (Superannuation) Regulations 2001 using a percentage as at the operative date as per these orders of 43.29 per cent of the superannuation and that there be a corresponding reduction to the entitlement of the person to whom the splittable payment would have been made but for this order.
The operative date for these orders is the date being 14 business days after the date upon which a sealed copy of these orders are served upon the trustee of the fund.
That the wife indemnify the husband in respect of any superannuation surcharges which he may be liable upon his retirement to the extent that surcharge relates to superannuation interests received by the wife.
That paragraphs 1 and 2 of the flagging orders made by this Court on

5 December 2005
be vacated.
That all other applications herein before the Court be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Moreton & Moreton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT

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 Moreton and Moreton

Details

AGLC: Moreton and Moreton [2006] FMCAfam 449
Case: [2006] FMCAfam 449
Decision Date: 25 August 2006

CaseChat Overview and Summary

Moreton and Moreton involved a dispute between the husband and wife over the division of superannuation interests under the Family Law Act 1975. The wife sought a determination regarding the division of the husband's superannuation interests in the Q Super Fund. The legal issues before the Court included the calculation of the wife's entitlement to the husband's superannuation and the indemnity for any superannuation surcharges the husband may incur due to the division. The Court was also asked to vacate certain parts of a previous order and to dismiss other applications.

The Court considered the statutory provisions under the Family Law Act and the Family Law (Superannuation) Regulations, focusing on the calculation of the wife's entitlement to the husband's superannuation. The Court determined that the wife was entitled to 43.29 per cent of the superannuation and set the operative date for the orders. Additionally, the Court ruled that the wife must indemnify the husband for any superannuation surcharges incurred due to the division. The Court vacated certain paragraphs of a previous order and dismissed other applications not relevant to the current dispute.

In conclusion, the Court made orders that the wife is entitled to 43.29 per cent of the husband's superannuation in the Q Super Fund, with the operative date being 14 business days after the orders are served on the trustee. The wife must also indemnify the husband for any superannuation surcharges related to her superannuation interests. The Court vacated specific paragraphs of a previous order and dismissed other applications not pertinent to the current dispute.

Orders

Orders of the court

That by way of full and final settlement of property as between the husband and the wife:

That 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 Q Super Fund (the fund) the wife shall be entitled to be paid an amount calculated in accordance with part 6(6) of the Family Law (Superannuation) Regulations 2001 using a percentage as at the operative date as per these orders of 43.29 per cent of the superannuation and that there be a corresponding reduction to the entitlement of the person to whom the splittable payment would have been made but for this order.

The operative date for these orders is the date being 14 business days after the date upon which a sealed copy of these orders are served upon the trustee of the fund.

That the wife indemnify the husband in respect of any superannuation surcharges which he may be liable upon his retirement to the extent that surcharge relates to superannuation interests received by the wife.

That paragraphs 1 and 2 of the flagging orders made by this Court on

5 December 2005

be vacated.

That all other applications herein before the Court be dismissed.

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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