PARDO & SILVE - [2011] FamCA 140

FAMILY COURT OF AUSTRALIA

PARDO & SILVE

[2011] FamCA 140

FAMILY LAW - PROPERTY - global approach in a single pool - assessment of contributions and s 79(4)(d) - (g) - whether superannuation should be split - alleged financial non disclosure

FAMILY LAW - CHILD SUPPORT - departure from administrative assessment - lump sum fund for school fees

Family Law Act 1975 (Cth)

Sections 79(4)(d) – (g) ; s 75(2)
Child Support (Assessment) Act 1989 (Cth)

Section 117

Kowaliw v Kowaliw (1981) FLC 91-092.
Coghlan & Coghlan (2005) 33 Fam LR 414; FLC 93-220
Hickey & Hickey (2003) 30 Fam LR 355; (2003) FLC 93-143
Kennon and Kennon (1997) FLC 92-757; 22 Fam LR 1
Mallet v Mallet (1984) FLC 91-507
Polonius & York [2010] FamCAFC 228
Chang v Su (2002) FLC 93-117
Gould & Gould [2007] FLC 93-333
Gyselman (1992) FLC 92-279

APPLICANT:

Mr Pardo

RESPONDENT:

Ms Silve

FILE NUMBER:

SYC

973

2010

DATE DELIVERED:

2 March 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

8 - 9 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Gayle Meredith & Associates

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

Pursuant to s 79 Family Law Act 1975 an order be made in the terms of paragraphs 2 to 11 below.
Within seven days the husband and wife do all acts and execute all documents necessary to cause the monies held by Gayle Meredith & Associates on behalf of the husband and the wife in National Australia Bank account number … to be disbursed as follows:
2.1.$428,481 to the husband and $150,527 to the wife;
2.2.any balance, 60% to the husband and 40% to the wife.
Contemporaneously with the husband receiving the sum referred to in paragraph 2.1, the husband pay the balance owed with respect to the following credit card facilities:
3.1.Citibank Platinum Card account number …;
3.2.ANZ Low Rate MasterCard account number …;
3.3.ANZ Frequent Flyer Card account number …;
Within 14 days the wife do all necessary to transfer to the husband all shares owned by her in M Pty Ltd ACN … and that thereafter the husband do all acts necessary to cause M Pty Ltd and M Discretionary Trust to be liquidated and/or wound up and in the event there are funds available for distribution thereafter that those funds be distributed as to 60% to the husband and 40% to the wife. The husband is to indemnify the wife in respect of any liability arising from any activity conducted by M Pty Ltd.
Pursuant to s 90MT(4) of the Family Law Act 1975 a base amount of $24,500 of the husband’s superannuation benefits to the wife out of the husband’s interest in MLC Super Plan in the name of L Pty Ltd for Mr Pardo, member number …, customer number … (“the L Super Plan”).
In accordance with Section 90MT(1)(a) of the Family Law Act 1975 that whenever a splittable payment becomes payable the trustees…

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 PARDO & SILVE

Details

AGLC: PARDO & SILVE [2011] FamCA 140
Case: [2011] FamCA 140
Decision Date: 2 March 2011

CaseChat Overview and Summary

In *Pardo & Silve*, Watts J of the Family Court of Australia considered a property settlement dispute between a husband and wife, as well as issues relating to child support. The proceedings involved the division of various assets, including bank accounts, shares in a company, and superannuation interests, and also addressed the wife's child support liability and the funding of their child's private school fees.

The court was required to determine the appropriate division of the parties' global property pool, taking into account their respective contributions under sections 79(4)(d) to (g) of the *Family Law Act 1975*. A key issue was whether the husband's superannuation should be split between the parties. Additionally, the court had to consider a departure from the administrative assessment of child support, specifically to increase the wife's liability and to establish a fund for the child's private school fees.

Watts J applied a global approach to the property settlement, treating all assets as part of a single pool for division. The court ordered the disbursement of funds from a joint bank account, with a specific allocation to each party and a remaining balance to be split 60% to the husband and 40% to the wife. The husband was ordered to pay off certain credit card debts. The wife was to transfer her shares in M Pty Ltd to the husband, who would then be responsible for the liquidation of M Pty Ltd and M Discretionary Trust, with any remaining funds distributed in the same 60/40 ratio. Crucially, the court ordered a base amount of the husband's superannuation to be paid to the wife, and further provided for future splittable payments from his superannuation to be made to the wife in accordance with the *Family Law (Superannuation) Regulations 2001*. Each party was to retain other property and superannuation in their sole names, with mutual indemnities for associated debts.

Regarding child support, the court departed from the administrative assessment, increasing the wife's monthly liability and ordering her to pay one half of the child's private school fees and associated expenses until she turned 18 or completed secondary schooling. Furthermore, a lump sum of $60,000 from the husband and $40,000 from the wife was to be placed into a cash management fund to cover the child's private school fees, with any remaining balance to be divided 40% to the wife and 60% to the husband upon completion of secondary education. The husband was otherwise responsible for costs associated with the child's education while funds remained in the account. The court also included provisions for the Registrar of the Family Court to execute documents if a party failed to do so.

Orders

Orders of the court

Pursuant to s 79 Family Law Act 1975 an order be made in the terms of paragraphs 2 to 11 below.

Within seven days the husband and wife do all acts and execute all documents necessary to cause the monies held by Gayle Meredith & Associates on behalf of the husband and the wife in National Australia Bank account number … to be disbursed as follows:

2.1. $428,481 to the husband and $150,527 to the wife;

2.2. any balance, 60% to the husband and 40% to the wife.

Contemporaneously with the husband receiving the sum referred to in paragraph 2.1, the husband pay the balance owed with respect to the following credit card facilities:

3.1. Citibank Platinum Card account number …;

3.2. ANZ Low Rate MasterCard account number …;

3.3. ANZ Frequent Flyer Card account number …;

Within 14 days the wife do all necessary to transfer to the husband all shares owned by her in M Pty Ltd ACN … and that thereafter the husband do all acts necessary to cause M Pty Ltd and M Discretionary Trust to be liquidated and/or wound up and in the event there are funds available for distribution thereafter that those funds be distributed as to 60% to the husband and 40% to the wife. The husband is to indemnify the wife in respect of any liability arising from any activity conducted by M Pty Ltd.

Pursuant to s 90MT(4) of the Family Law Act 1975 a base amount of $24,500 of the husband’s superannuation benefits to the wife out of the husband’s interest in MLC Super Plan in the name of L Pty Ltd for Mr Pardo, member number …, customer number … (“the L Super Plan”).

In accordance with Section 90MT(1)(a) of the Family Law Act 1975 that whenever a splittable payment becomes payable the trustees of the L Super Plan:

6.1. create an entitlement for the wife or her administrators, executors, beneficiaries, heirs or assigns to the extent permitted by law to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

6.2. make a corresponding reduction in the entitlement the husband would have had in the L Super Plan but for this order.

The trustee of the L Super Plan (“the trustee”) do all such acts and things and sign all documents as may be necessary to:

7.1. calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement for the wife created by Orders 6.1 and 6.2 of these Orders; and

7.2. pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the L Super Plan.

The trustee do all acts and things and sign all such documents as may be necessary so that in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001 the trustee can calculate the entitlement of and make payment to the wife in accordance with paragraphs 7.1 and 7.2 of these Orders.

Paragraphs 5 to 9 have effect from the operative time being four days after service of the Order upon the trustee.

10.

Paragraphs 5 to 9 bind the Trustee to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

11.

Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.

12.

If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

Child Support Departure and lump sum fund for school fees

13.

Pursuant to Part 4, Division 5 of the Child Support (Assessment) Act 1989, there be a departure from the assessment of the Child Support Agency reference number … dated 15 June 2010, so that the wife’s child support liability be increased to the sum of $1,500 per calendar month and payment of one half the child’s private school fees and associated expenses for the child for the child support period from the date of these Orders to the date the child reaches the age of 18 years of age or completes her secondary schooling at J whichever last occurs.

14.

Contemporaneously with the receipt by the parties of the monies referred to in paragraph 2 above, and pursuant to s 123 Child Support (Assessment) Act, the husband pay the sum of $60,000 and the wife pay the sum of $40,000 into a cash management fund to be used to pay G Pardo’s (“G’s”) private school fees and associated expenses (as invoiced by G’s school) until completion of her secondary education and, at the conclusion of her secondary schooling, if there are any funds remaining in the account that the account be closed and the proceeds divided between the husband and the wife as to 40% to the wife and 60% to the husband and that the husband be otherwise responsible for any costs associated with G’s education during the period of time that monies remain in the cash management fund.

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.