Murdock and Tucker - [2015] FamCA 23

FAMILY COURT OF AUSTRALIA

MURDOCK & TUCKER

[2015] FamCA 23

FAMILY LAW – PROPERTY SETTLEMENT – only unusual contributions were a late inheritance by the wife and large bonus received by husband from his employment along with redundancy – Husband’s income greater than that of wife – Should there be a significant adjustment where husband and wife both in their 50s and “pool” is just over $2 million plus superannuation – Modest adjustment made.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Aleksovski v Aleksovski (1996) FLC 92-705
Clauson & Clauson (1995) FLC 92-595
Coghlan and Coghlan (2005) FLC 93-220
Dickons & Dickons [2012] FamCAFC 154
In the Marriage of Kowaliw (1981) FLC 91-092
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
Sinclair & Sinclair [2012] FamCA 388
Stanford v Stanford 247 CLR 108
Steinbrenner v Steinbrenner [2008] FamCAFC 193

APPLICANT:

Mr Murdock

RESPONDENT:

Ms Tucker

FILE NUMBER:

MLC

1719

2013

DATE DELIVERED:

28 January 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

19 October 2014; 18 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson

SOLICITOR FOR THE APPLICANT:

Westminster Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Puckey

SOLICITOR FOR THE RESPONDENT:

Burke Family Law

Orders

That the husband and the wife forthwith do all things necessary to place the property at M Street, Suburb B on the market for sale on such terms and conditions as the parties agree and failing agreement on terms and conditions as determined by the Court and upon the settlement of the sale, the proceeds be distributed as follows:
(a) First to pay all costs, commissions and expenses of the sale;
(b)Secondly to discharge the various loans up to $250,000 referred to in paragraph 54 of the reasons for judgment this day; and
(c)Thirdly, to add the net proceeds thereafter to the other assets referred to in paragraph 50 of the said reasons for judgment which shall then be divided as to 57.5 per cent to the wife and 42.5 per cent to the husband taking into account the assets described in paragraph 50 of the said judgment as retained by each party.
That the wife forthwith make available for collection by the husband and at a time to be nominated by him:
·The silver coasters and bottle stand which were a 21^st birthday present to the husband;
·The husband’s personal photographs;
·The digital copies of joint photographs;
·The husband’s books;
·The husband’s papers and personal belongings stored in the attic; and
·The husband’s record albums.
That pursuant to s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”) a base amount of $374,500 of the husband’s interest in the Australian Superannuation Fund (Employer No: …, Policy Number: …) be allocated to the wife.
Pursuant to s 90MT(1)(a) of the Act, whenever the trustee of the Australian Superannuation Fund makes a splittable payment out of the husband’s interest in the said fund (Member No …), the trustee shall…

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 Murdock and Tucker

Details

AGLC: Murdock and Tucker [2015] FamCA 23
Case: [2015] FamCA 23
Decision Date: 28 January 2015

CaseChat Overview and Summary

This matter concerned orders made by Cronin J in a family law proceeding between a husband and wife. The dispute involved the division of property and the allocation of superannuation interests.

The court was required to determine how the parties' assets, including a property and a superannuation fund, should be divided. This involved determining the terms of sale for a jointly owned property, the distribution of sale proceeds, and the specific allocation of a portion of the husband's superannuation to the wife. The court also addressed the return of personal belongings and the severance of joint tenancies.

Cronin J ordered that the jointly owned property be placed on the market for sale, with the proceeds to be applied first to sale costs, then to discharge specified loans up to $250,000, and the net balance to be added to other assets. These combined assets were to be divided 57.5% to the wife and 42.5% to the husband, taking into account assets already retained by each party. The wife was also ordered to return specific personal items belonging to the husband. Crucially, pursuant to sections 90MT(4) and 90MT(1)(a) of the *Family Law Act 1975* (Cth), a base amount of $374,500 of the husband's superannuation interest was to be allocated to the wife, with the trustee to pay her entitlement from splittable payments. Further orders clarified the operative time of this splitting order and the process for creating a new interest in the wife's name. Each party was to retain other assets in their possession and be solely liable for any liabilities encumbering those assets. Joint tenancies were expressly severed. All extant applications, save for issues of costs, were dismissed.

Orders

Orders of the court

1. That the husband and the wife forthwith do all things necessary to place the property at M Street, Suburb B on the market for sale on such terms and conditions as the parties agree and failing agreement on terms and conditions as determined by the Court and upon the settlement of the sale, the proceeds be distributed as follows:

(a) First to pay all costs, commissions and expenses of the sale;

(b) Secondly to discharge the various loans up to $250,000 referred to in paragraph 54 of the reasons for judgment this day; and

(c) Thirdly, to add the net proceeds thereafter to the other assets referred to in paragraph 50 of the said reasons for judgment which shall then be divided as to 57.5 per cent to the wife and 42.5 per cent to the husband taking into account the assets described in paragraph 50 of the said judgment as retained by each party.

2. That the wife forthwith make available for collection by the husband and at a time to be nominated by him:

· The silver coasters and bottle stand which were a 21st birthday present to the husband;

· The husband’s personal photographs;

· The digital copies of joint photographs;

· The husband’s books;

· The husband’s papers and personal belongings stored in the attic; and

· The husband’s record albums.

3. That pursuant to s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”) a base amount of $374,500 of the husband’s interest in the Australian Superannuation Fund (Employer No: …, Policy Number: …) be allocated to the wife.

4. Pursuant to s 90MT(1)(a) of the Act, whenever the trustee of the Australian Superannuation Fund makes a splittable payment out of the husband’s interest in the said fund (Member No …), the trustee shall pay to the wife her entitlement pursuant to these orders and make a corresponding reduction in the entitlement that the husband would have had but for this order.

5. The foregoing splitting order has effect from the operative time which is four days after the service of this order upon the trustee.

6. That the wife exercise a request for the creation of a new interest in her name in the Australian Superannuation Fund with the value of the transferable interest calculated in accordance with Regulation 7A.11 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).

7. Pursuant to Regulation 14F of the Family Law (Superannuation) Regulations 2001 (Cth), any payments from the husband’s superannuation interest made after the trustee has created a new interest in the wife’s name in the said fund, are not splittable payments.

8. That each party otherwise retain to the exclusion of the other, all such assets and interests therein in the possession of such party as at the date of this order.

9. That each party be solely liable for and indemnify the other and pay any liability encumbering any item of property to which that party is entitled pursuant to these orders.

10. Any joint tenancy in any property referred to in these orders is expressly severed by these orders.

11. Save as to issues of costs, all extant applications are otherwise dismissed.

12. That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 16 February 2015 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 2 March 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

IT IS CERTIFIED:

13. That pursuant to Order 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.