Newett & Newett (No. 4) - [2021] FamCA 318

FAMILY COURT OF AUSTRALIA
Newett & Newett (No. 4) [2021] FamCA 318

File number(s): BRC 2179 of 2018

Judgment of: BAUMANN J

Date of judgment: 20 May 2021

Catchwords: FAMILY LAW – PROPERTY – Where further submissions were invited before final property orders were pronounced – Where the Court received oral submissions on behalf of the husband and written submissions from the wife as to the form of order – Where the wife sought a re-trial of or to re-open property proceedings – Final property orders made consistent with the Reasons for Judgment delivered.

Legislation:
Family Law Act1975 (Cth) ss 75(2), 102NA

Property Law Act 1974 (Qld)

Cases cited:
Kennon & Kennon (1997) FLC 92-757

Newett & Newett (No. 3) [2021] FamCA 187

Number of paragraphs: 26

Date of hearing: 10 May 2021

Place: Brisbane

Solicitor for the Applicant: Mr S Richardson
Damien Greer Lawyers

Respondent: Self-represented
ORDERS

BRC 2179 of 2018

BETWEEN:
MR NEWETT

Applicant

AND:
MS NEWETT

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

20 MAY 2021

THE COURT ORDERS:
1.That upon the sale of the property situated at R Street, Suburb JJ in the State of Queensland any net proceeds of sale available to either of the parties shall be distributed in the following order of priority:
(a)To pay to the husband such sum as will result in him receiving 60% of the combined net pool (taking in to account the superannuation split in Orders 2 to 7 below and the pool of assets and liabilities set out in paragraph 47 of the Reasons for Judgment delivered 8 April 2021); and
(b)To pay to the wife such sum as will result in her receiving 40% of the combined net pool (taking in to account the superannuation split in Orders 2 to 7 below and the pool of assets and liabilities set out in paragraph 47 of the Reasons for Judgment delivered 8 April 2021).

2.That the Court allocates, as required by s 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $50,000 to Ms Newett (“the wife”) out of Mr Newett’s (“the husband”) interest in Super Fund 1 (account number …27).
3.That in accordance with s 0XT(1)(a) of the Family Law Act 1975 (Cth):
(a)the wife is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)the entitlement of husband in the Super Fund 1 (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.

4.That the trustee of Super Fund 1, namely AL Bank Services Limited (“the Trustee”), shall do all such acts and things and sign all such documents as may be necessary to:
(a)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…

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.

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Details

Case: [2021] FamCA 318
Decision Date: 20 May 2021

CaseChat Overview and Summary

In *Newett & Newett (No. 4)*, Baumann J of the Family Court of Australia was required to make final property orders between Mr Newett (the husband) and Ms Newett (the wife). The dispute concerned the division of the parties' assets and liabilities, including the sale of a property and the splitting of superannuation interests. The court had previously delivered Reasons for Judgment on 8 April 2021, and further submissions were invited before the final orders were pronounced.

The legal issues before the court were to determine the just and equitable distribution of the parties' combined net pool of assets and liabilities, including the allocation of proceeds from the sale of a property and the division of superannuation interests. The wife also sought a re-trial or to re-open the property proceedings, which the court considered in its determination.

Baumann J reasoned that an overall adjustment of 60% to the husband and 40% to the wife was appropriate, taking into account the superannuation split. This decision was based on the husband's superior current income and his capacity to control his superannuation benefits, which persuaded the court that a higher cash return from the sale proceeds for the wife would achieve justice and equity. The court specifically ordered a superannuation split of approximately $50,000 to the wife, finding this to be more just and equitable than the husband's proposal. The court relied on findings made in its earlier Reasons for Judgment and the specific circumstances of the parties to reach its conclusion.

The court made final property orders consistent with its Reasons for Judgment. These orders detailed the distribution of net proceeds from the sale of the R Street property, allocating 60% to the husband and 40% to the wife. The orders also provided for a specific superannuation split, allocating a base amount of $50,000 to the wife from the husband's interest in Super Fund 1, and outlined the necessary steps for the trustee to implement this split. Further orders addressed the collection of personal items, the entitlement to property in each party's possession, and mutual indemnities for liabilities incurred prior to the orders.

Orders

Orders of the court

BRC 2179 of 2018

BETWEEN:

MR NEWETT

Applicant

AND:

MS NEWETT

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

20 MAY 2021

THE COURT ORDERS:

1. That upon the sale of the property situated at R Street, Suburb JJ in the State of Queensland any net proceeds of sale available to either of the parties shall be distributed in the following order of priority:

(a) To pay to the husband such sum as will result in him receiving 60% of the combined net pool (taking in to account the superannuation split in Orders 2 to 7 below and the pool of assets and liabilities set out in paragraph 47 of the Reasons for Judgment delivered 8 April 2021); and

(b) To pay to the wife such sum as will result in her receiving 40% of the combined net pool (taking in to account the superannuation split in Orders 2 to 7 below and the pool of assets and liabilities set out in paragraph 47 of the Reasons for Judgment delivered 8 April 2021).

2. That the Court allocates, as required by s 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $50,000 to Ms Newett (“the wife”) out of Mr Newett’s (“the husband”) interest in Super Fund 1 (account number …27).

3. That in accordance with s 0XT(1)(a) of the Family Law Act 1975 (Cth):

(a) the wife is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and

(b) the entitlement of husband in the Super Fund 1 (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.

4. That the trustee of Super Fund 1, namely AL Bank Services Limited (“the Trustee”), shall do all such acts and things and sign all such documents as may be necessary to:

(a) 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

(b) pay the entitlement whenever the Trustee makes a splittable payment from husband’s interest in Super Fund 1.

5. That Orders 2 to 4 hereof have effect from the operative time and the operative time is the fourth business day after the date of service of these Orders on the Trustee.

6. That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the SIS Regulations”), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the husband’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the wife’s choosing in accordance with the SIS Regulations.

7. That the Court notes:

(a) the value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and

(b) any payments from the husband’s superannuation interest in Super Fund 1 made after the Trustee has created a new interest in the wife’s name in Super Fund 1 are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001 (Cth).

8. That within twenty one (21) days (“the collection period”), the wife shall do all things, sign all documents necessary and collect all of her personal items currently held in storage by ANZ, and the husband shall be declared the owner absolutely of any items not collected by the wife and remaining in storage by ANZ from the expiry of the collection period.

9. That from the settlement date and unless otherwise specified in this Order and except for the purposes of enforcing payment of any money due under these or any subsequent Orders:

(a) each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles;

(b) moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;

(c) each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other; and

(d) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.

10. That each of the parties shall indemnify and keep the other indemnified with respect to all liabilities, debts, taxes, loans, liens, charges, claims in contract, tort or breach of statutory duty, actions, suits, demands and or chooses in action owing by them either solely, jointly and or together with any third party and with respect to any such claim that may from time to time be brought by one of the parties against the other relating to matters prior to the date of these Orders.

11. That the husband and the wife shall do all such things and sign all documents necessary to give effect to these Orders and in the event that either party refuses or neglects to comply with any part of these Orders, then the Registrar of the Family Court of Australia Brisbane Registry is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to these Orders, and the party in default shall pay all reasonable costs incurred by the other party for the purposes of enforcing this Order.

12. That it shall be sufficient authority for the Registrar to act pursuant to Order 11 hereof to have before him or her an affidavit sworn by a party or by the solicitor for a party in which they depose that one of the parties has refused or neglected to comply with a provision of this Order, and detailing the provision, the acts undertaken to have him or her comply and his or her response (or lack of a response).

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

I do not regard that as just and equitable for the reasons set out in the earlier Judgment. Having heard her submissions, I propose to find that an adjustment, overall, of 60% to the husband and 40% to the wife is appropriate, including, as it must, a superannuation splitting order. This differential of 20% on a combined net pool of $389,860, perhaps to yet be adjusted by the actual net proceeds of sale and the mortgage on the R Street property, would equate to approximately $77,000 which, in all of the circumstances, I regard for the reasons given, as appropriate. CONCLUSION Of course, it is not percentages that determine what is just and equitable. The law requires the Court to consider the effect of the orders to demonstrate that justice and equity to both parties is achieved. I rely upon findings made in these Reasons for Judgment and those in my earlier Reasons. The effect of the orders which appear at the commencement of these Reasons, based on the notional pool set out at paragraph 46 of the earlier Reasons is as set out next – noting the use of the term “notional pool” denotes the uncertainty that arises from whether the net proceeds from the sale of the Suburb JJ home is greater or less than the amount of $181,704 after a sale by the ANZ Bank as mortgagee in possession. On a net pool of $389,860 the husband’s 60% share ($233,916) will comprise as follows: The wife’s 40% share ($155,944) will comprise as follows: I believe that a superannuation split in the region of $50,000 to the wife is more just and equitable than the husband’s proposal of $68,413 as this slightly increases her share of the cash proceeds. The husband’s superior current income and his capacity to decide the extent to which he wishes to increase or not his superannuation benefits (as effectively a self-employed person through VV Pty Ltd) persuade me that the wife having a higher cash return from the sale proceeds than that proposed by the husband, creates justice and equity. I order accordingly.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 2179 of 2018
Judgment of:	BAUMANN J
Date of judgment:	20 May 2021
Catchwords:	FAMILY LAW – PROPERTY – Where further submissions were invited before final property orders were pronounced – Where the Court received oral submissions on behalf of the husband and written submissions from the wife as to the form of order – Where the wife sought a re-trial of or to re-open property proceedings – Final property orders made consistent with the Reasons for Judgment delivered.
Legislation:	Family Law Act1975 (Cth) ss 75(2), 102NA Property Law Act 1974 (Qld)
Cases cited:	Kennon & Kennon (1997) FLC 92-757 Newett & Newett (No. 3) [2021] FamCA 187
Number of paragraphs:	26
Date of hearing:	10 May 2021
Place:	Brisbane
Solicitor for the Applicant:	Mr S Richardson Damien Greer Lawyers
Respondent:	Self-represented

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	20 MAY 2021