ODENS & ODENS - [2021] FCCA 575

FEDERAL CIRCUIT COURT OF AUSTRALIA

ODENS & ODENS

[2021] FCCA 575

Catchwords:
FAMILY LAW – Property – marriage in excess of 22 years – consideration of property entitlements in circumstances where the only asset available for distribution is superannuation – wife seeking 50% be split from the husband’s self-managed superannuation fund – husband opposes on the basis that the real property in which the fund is invested should only be sold upon the parties reaching retirement age in order to maximise their entitlements – considerations of justice and equity.

Legislation:

Bankruptcy Act 1966 (Cth), ss.58, 116, 116(2)

Family Law Act 1975 (Cth), ss.75, 79, 81, 90XC, 90XT, 106A, 117

Federal Circuit Court of Australia Act 1999 (Cth), s. 3

Federal Circuit Court Rules 2001 (Cth), rr. 21.02, 21.10, 21.15, 21.16

Cases cited:

Bevan & Bevan [2013] FamCAFC 116

Biltoft & Biltoft (1995) FLC 92-614

Clauson v Clauson (1995) FLC 92-595

C & C (2005) FLC 93-220

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Ferguson & Ferguson (1978) FLC 90-500

Ferraro v Ferraro (1993) FLC 92-335

Hickey v Hickey and Attorney General for Commonwealth of Australia (2003)

FLC 93-143

Kohan & Kohan (1993) 93-340

Lee Steere v Lee Steere (1998) FLC 91-626

Russell v Russell (1999) FamCA 187

Wardman & Hudson (1978) FLC 90-466

Applicant:

MS ODENS

Respondent:

MR ODENS

File Number:

ADC 1582 of 2019

Judgment of:

Judge Brown

Hearing date:

16 December 2020

Date of Last Submission:

16 December 2020

Delivered at:

Adelaide

Delivered on:

24 March 2021

REPRESENTATION

Counsel for the Applicant:

Ms Miller

Solicitors for the Applicant:

Precision Legal

The Respondent:

The Respondent appearing in person

ORDERS

Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) there be a splitting order, in the sum of one hundred and forty one thousand nine hundred and sixty one dollars ($141,961.00), made in the wife’s favour out of the funds currently standing in the husband’s name in the Mr Odens self-managed Superannuation Fund (“SMSF”), with the husband to bear the incurred costs.
The trustee of the SMSF do all things necessary to give effect to order (1) hereof and within twenty eight days (28) of the making of this order to rollover the sum to be split in the wife’s favour to the superannuation fund as nominated by the wife.
The wife will serve a copy of these orders on the trustee of the husband’s SMSF within twenty eight days (28) of the date of these orders and thereafter the aforesaid trustee has liberty to relist the matter in the event that the trustee is unable to comply with order (1) hereof.
The trustee of the SMSF and the wife in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all necessary documents as are required to calculate the payment entitlements of the wife in accordance with order (1) hereof.
Pursuant to section 106A of the Act the Registrar of the Court at Adelaide is…

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 ODENS & ODENS

Details

AGLC: ODENS & ODENS [2021] FCCA 575
Case: [2021] FCCA 575
Decision Date: 24 March 2021

CaseChat Overview and Summary

In the matter of ODENS & ODENS, Judge Brown of the Family Court of Australia considered a property dispute between a husband and wife following a marriage of over 22 years. The central issue was the distribution of assets, specifically the husband's self-managed superannuation fund (SMSF), which was the only significant asset available for division. The wife sought a 50% split of the SMSF, while the husband contended that the real property, in which the fund was invested, should not be sold until the parties reached retirement age to maximise their respective entitlements.

The court was required to determine how to achieve a just and equitable distribution of the parties' property, particularly in circumstances where the sole asset was the husband's SMSF. This involved considering the wife's claim for a substantial portion of the superannuation and the husband's preference for deferring the sale of the underlying asset to optimise its value. The court had to balance the immediate financial needs and entitlements of both parties against the potential future benefits of delaying the realisation of the asset.

Judge Brown applied the principles of justice and equity under the *Family Law Act 1975* (Cth) to resolve the dispute. The court ordered a splitting order pursuant to section 90XT(1)(a) of the Act, awarding the wife $141,961.00 from the husband's SMSF, with the husband to bear the associated costs. The trustee of the SMSF was directed to facilitate the rollover of the specified sum to the wife's nominated superannuation fund within 28 days. The court also made detailed orders regarding the execution of necessary documents by the trustee and appointed the Registrar of the Court at Adelaide to act in the event of default. Finally, the orders stipulated that each party would retain their respective personal effects, motor vehicles, savings, shares, investments, and any other property not specifically addressed by the splitting order, free from further claim by the other.

Orders

Orders of the court

Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) there be a splitting order, in the sum of one hundred and forty one thousand nine hundred and sixty one dollars ($141,961.00), made in the wife’s favour out of the funds currently standing in the husband’s name in the Mr Odens self-managed Superannuation Fund (“SMSF”), with the husband to bear the incurred costs.

The trustee of the SMSF do all things necessary to give effect to order (1) hereof and within twenty eight days (28) of the making of this order to rollover the sum to be split in the wife’s favour to the superannuation fund as nominated by the wife.

The wife will serve a copy of these orders on the trustee of the husband’s SMSF within twenty eight days (28) of the date of these orders and thereafter the aforesaid trustee has liberty to relist the matter in the event that the trustee is unable to comply with order (1) hereof.

The trustee of the SMSF and the wife in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all necessary documents as are required to calculate the payment entitlements of the wife in accordance with order (1) hereof.

Pursuant to section 106A of the Act the Registrar of the Court at Adelaide is appointed to execute all necessary documents to give effect to these Orders if the trustee defaults in executing same.

Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:

(a) the furniture and furnishings in his possession, power and control;

(b) any motor vehicle in his possession;

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in his name subject to order (1) hereof;

(e) his personal effects; and

(f) any other real and/or personal property and/or financial resources of the husband or in the husband’s name and/or possession not otherwise specified herein.

Including but without limiting the effect hereof, the wife shall retain for her sole use and benefit absolutely free from any further claim or demand of the husband:

(a) the furniture and furnishings in her possession, power and control;

(b) any motor vehicle in her possession;

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in her name;

(e) her personal effects.

(f) any other real and/or personal property and/or financial resources of the wife or in the wife’s name and/or possession not otherwise specified herein.

All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.

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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