MUNTON and MUNTON - [2017] FCWA 60

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MUNTON and MUNTON [2017] FCWA 60

CORAM: DUNCANSON J

HEARD: 2 - 3 MARCH 2017

DELIVERED : 30 MAY 2017

FILE NO/S: PTW 5578 of 2015

BETWEEN: MS MUNTON
Applicant
AND
MR MUNTON
Respondent

Catchwords:

PROPERTY - where it is just and equitable to make a property settlement order - long marriage - where husband's contributions outweigh those of the wife primarily by reason of an inheritance - where the husband is in receipt of a pension for life which cannot be commuted to a lump sum - where the value ascribed to the husband's pension is not included in the asset and liability schedule - adjustment to the wife for s 75(2) factors

Legislation:

Family Law Act 1975 (Cth) s 75(2), s 79
Family Law (Superannuation) Regulations 2001 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Ms T Farmer
Respondent: Mr N Marsh

Solicitors:

Applicant: Lewis Blyth & Hooper
Respondent: Swan River Law

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

Clives v Clives (2008) FLC 93-385
Dickons v Dickons (2012) 50 Fam LR 244
Semperton v Semperton (2012) 47 Fam LR 626
Stanford v Stanford (2012) 247 CLR 108
Surridge & Surridge (2017) FLC 93-757

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms Munton] (“the wife”) and [Mr Munton] (“the husband”) are unable to agree about the division of their property. A significant issue for determination is the parties’ contributions. The wife says the parties’ contributions overall are equal. The husband disagrees, primarily because he inherited funds and shares shortly before and after separation. He says he made other contributions which were not matched by those of the wife.
2A further issue for determination is the treatment of the husband’s superannuation which is in its payment phase. The husband will receive a pension for life. The wife says she made significant contributions to his entitlement to this pension. She seeks an adjustment in her favour by reason of his receipt of the pension.

The orders sought by the wife

3The orders sought by the wife are contained within her Papers for the Judge filed 24 February 2017. The wife proposes that the husband transfer his interest in the property at [Sunny Drive, Suburb W] (“[the Sunny Drive property]”) to her and contemporaneously she transfer her interest in the property at [Cloudy Drive, Suburb W] (“[the Cloudy Drive property]”) to him.
4The wife proposes that the property at [Greenfield Drive, Suburb M] (“[the Greenfield Drive property]”) be sold and the net proceeds be paid to her.
5The wife proposes to transfer to the husband her interest in the properties at [Cranberry Grove, Suburb D] (“[the Cranberry Grove property]”) and [Darley Dale, Suburb W] (“[the Darley Dale property]”). The husband should refinance the mortgages over these properties.
6The wife seeks a splitting order of the husband’s GESB superannuation in the accumulation phase, such that she receives 100%…

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 MUNTON and MUNTON

Details

AGLC: MUNTON and MUNTON [2017] FCWA 60
Case: [2017] FCWA 60
Decision Date: 30 MAY 2017

CaseChat Overview and Summary

The case involved the spouses, Munton and Munton, who were before the Family Court of Australia. The dispute was centered on the making of a property settlement order in the context of their lengthy marriage. The wife argued for a more substantial settlement, whereas the husband contended that his contributions, predominantly in the form of an inheritance, warranted a lesser adjustment in favor of the wife. The husband was also in receipt of a life pension, which could not be converted into a lump sum, and its value was not factored into the asset and liability schedule prepared for the proceedings.

The court had to decide whether it was just and equitable to make a property settlement order, taking into account the various factors outlined in the Family Law Act. These factors included the contributions of each party to the marriage, both direct and indirect, and the needs, obligations, and future prospects of each party. The court also had to consider the principle of equality and the value of the husband's non-commutable pension. Furthermore, the court had to determine the appropriate method of assessing the value of the husband's pension for the purposes of making a property settlement order.

The court found that it was just and equitable to make a property settlement order, but the husband's contributions were significantly greater than those of the wife, mainly due to the inheritance. The court noted that the husband's pension, which could not be commuted to a lump sum, was a valuable asset that needed to be considered in the settlement. The court determined that it was appropriate to adjust the wife's entitlement under section 75(2) of the Family Law Act to account for the husband's pension. As a result, the wife's share of the settlement was reduced accordingly. The court ordered that the husband would retain certain assets and liabilities, and the wife would receive a specified amount as her share of the property settlement.

Orders