JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: R -v- T [2020] WASCA 109
CORAM: BUSS P
MURPHY JA
VAUGHAN JA
HEARD: 16 APRIL 2020
DELIVERED : 8 JULY 2020
FILE NO/S: CACV 70 of 2018
BETWEEN: R
Appellant
AND
T
First Respondent
X
Second Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: MONCRIEFF J
Citation: T and R [2018] FCWA 113
File Number : PTW 4513 of 2009
Catchwords:
Family law - De facto relationship - Application for interim orders for property settlement - Family Court Act 1997 (WA), s 205ZG - Where interim orders made in context of setting aside dispositions under s 222(1) of Family Court Act - Proper construction and application of s 222(1) of the Family Court Act - Where the power to set aside dispositions is enlivened under first limb of s 222(1) of Family Court Act involving an intention to defeat an existing or anticipated order - Where power enlivened under the first limb of s 222(1) of Family Court Act contains no requirement for applicant to establish second limb of s 222(1) concerning whether, irrespective of intention, the disposition is likely to defeat any such order
Family law - De facto relationship - Setting aside contributions to superannuation fund - Whether orders setting aside contributions to a superannuation fund involved contraventions of s 62 of Superannuation Industry (Supervision) Act 1993 (Cth) and reg 5.08 of Superannuation Industry (Supervision) Regulations 1994 (Cth) - Whether judge erred in finding that there were no taxation consequences in setting aside dispositions
Family law - De facto relationship - Adjournment under s 205ZG(5) of the Family Court Act - Interim orders under s 205ZG(6) of Family Court Act - Principles to be applied - Whether judge erred in making interim orders
Family law - De facto relationship - Practice and procedure - Whether appellant entitled to raise new points not litigated at trial - Whether appellant established that it was in the interests of justice to raise a new point in the appeal to the effect that the trustee of the superannuation fund had been denied natural justice in the primary proceedings.
Legislation:
Family Court Act 1997 (WA), s 205ZG(1), s 205ZG(3), s 205ZG(4), s 205ZG(5), s 205ZG(6), s 205ZI(1)(h), s 205ZLF, s 222, s 222(1), s 222(3), s 222(4a)
Family Court Rules 1998 (WA), r 12
Family Law Act 1975 (Cth), s 79, s 79(5), s 79(6), s 80(1)(h), s 85, s 85(1), s 106B, s 106B(1)
Family Law Rules 2004 (Cth), r 6.02
Income Tax Assessment Act 1936 (Cth), pt III div 6
Income Tax Assessment Act 1997 (Cth), s 6-5, s 295 - s 325
Income Tax Rates Act 1986 (Cth), s 26, s 26(2)
Matrimonial Causes Act 1959 - 1973 (Cth), s 120(1)
Relationships Act 2008 (Vic), s 63
Superannuation Industry (Supervision) Act 1993 (Cth), s 62(1)
Superannuation Industry (Supervision) Regulations 1993 (Cth), reg 5.08, reg 5.08(1A), reg 5.08(2)
Result:
Continue reading R v T
Sign in free to access the full text
- AGLC
- R v T [2020] WASCA 109
- Case
- [2020] WASCA 109
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the power to set aside dispositions under section 222(1) of the Family Court Act was correctly applied in the first instance. Specifically, the court needed to examine if the power to set aside dispositions was triggered by an intention to defeat an existing or anticipated order, and whether this required the applicant to establish the second limb of section 222(1). Additionally, the court assessed if the setting aside of superannuation contributions contravened sections 62 of the Superannuation Industry (Supervision) Act and regulation 5.08 of the Superannuation Industry (Supervision) Regulations 1994. The court also evaluated if there were any taxation consequences in setting aside these dispositions, and whether the judge erred in making the interim orders. Furthermore, the court considered whether the appellant was entitled to raise new points not previously litigated at trial, particularly regarding the denial of natural justice to the trustee of the superannuation fund.
The court found that the power to set aside dispositions under section 222(1) of the Family Court Act was indeed triggered by an intention to defeat an existing or anticipated order and did not require the applicant to establish the second limb of the section. The court also determined that the setting aside of superannuation contributions did not contravene the relevant sections of the Superannuation Industry (Supervision) Act and regulations. The judge was found not to have erred in making the interim orders, and the appellant was not entitled to raise new points not previously litigated at trial. Consequently, the appeal was dismissed.
The court upheld the orders setting aside the contributions to the superannuation fund and rejected the contention that the setting aside of these contributions contravened any relevant legislation. The appeal was dismissed, and the interim orders made by the Family Court of Western Australia were affirmed.
Orders
Orders of the court
Full text does not contain this section.
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
On 2 November 2017, the de facto wife applied for and obtained leave to seek further amended orders.[36] By her minute of proposed orders dated 2 November 2017, the de facto wife sought orders, including orders to the following effect:[37][36] Primary decision [19].[37] Primary decision [20]. It is to be noted that the proposed orders of 2 November 2017 did not include orders to set aside the concessional contributions claimed in the orders of 4 October 2017.Declarations 1.Declarations that each of the LMN Investment Trust and GE Pty Ltd is the alter ego of the de facto husband, that the de facto husband is the true equitable owner of the D 15 property, and that any instrument purporting to issue or transfer to the de facto husband's daughter units in the LMN Investment Trust, is a sham.Setting aside transactions in relation to the VW Super Fund and consequential orders2.The purported contribution on 31 August 2016 of around $418,000 by the de facto husband to the VW Super Fund, and the consequential transfer of securities, be set aside.3.Consequential orders and declarations requiring the repayment of $444,248.62 from the VW Super Fund to the de facto husband.4.An order that a non‑concessional contribution by the de facto husband to the VW Super Fund in the sum of $96,859 in 2008 be set aside and be deemed to be a contribution of the de facto wife.5.An order that the non‑concessional contribution by the de facto husband to the VW Super Fund in the sum of $450,000 in June 2011 be set aside, and that the contribution be deemed to be a contribution of the de facto wife.Corrected financial statements of VW Super Fund6.The parties in their capacity as directors of GE Pty Ltd appoint Mr Mark Chan to review, and if considered appropriate amend, the financial statements of the VW Super Fund for the years ended June 2008 to June 2015 inclusive with focus on:(a)the value shown in the accounts of the fund for various unlisted and property investments;(b)the attribution of contributions and movements in value of property of the VW Super Fund as between members; and(c)the calculation of member balances as at 30 June 2017.7.The parties in their capacity as directors of GE Pty Ltd appoint Mr Mark Chan to prepare financial statements and taxation returns for the VW Super Fund for the years ended June 2016 and June 2017.Cash payments to the de facto wife8.On or before 1 March 2018, and by way of partial property settlement, the de facto husband pay to the de facto wife $700,000 (the cash payment).Adjournment - order 229.The proceedings be adjourned pursuant to s 205ZG(5) of the Act, with liberty to apply on reasonable notice in writing. The de facto husband sought the following orders at trial:[38] [38] Primary decision [21] - [22]. Minute of Final Orders Sought:1The children … continue to have contact with [the de facto husband] in accordance with their wishes.2[The de facto wife] retain for her benefit interim payments totalling [sic] $405,414.3[The de facto wife] retain for her benefit household effects, artwork and jewelery [sic] of the former matrimonial home, as better particularized in the Insurance Manifest $602,727, item 259‑260, of Schedule of Discovery dated 24 July 2016.4[The de facto wife] retain for her benefit the two vehicles per her Form 13, namely Honda $45,000 and Toyota $10,000.5[The de facto wife] resign from the [VW Super Fund] and advise the Trustees the nominated complying fund [the de facto wife] wishes her member entitlements to be rolled over.6[The de facto husband] retain his membership entitlements in the [VW Super Fund].7[the de facto husband] retain his capital (2) and income (1003) units in the [LMN Investment Trust].8[The de facto husband] continue to pay Child Support in the sum of $650 per week or any other rate as determined by the Department of Human Services.