REDDEN & PENNINGTON - [2013] FamCA 123

FAMILY COURT OF AUSTRALIA

REDDEN & PENNINGTON

[2013] FamCA 123

FAMILY LAW – PROPERTY SETTLEMENT – final orders – adjustment of property interests – consideration of whether the Court should add back post-separation expenditure into the matrimonial asset pool – where pecuniary gifts given by the wife after separation to her new partner were added back to the matrimonial asset pool – where the contributions were assessed at 55:45 in favour of the wife – no adjustment made upon consideration of s 75(2) factors.

FAMILY LAW – PROPERTY SETTLEMENT – superannuation – where it was not just and equitable to bring the superannuation expectations into account as an asset of the matrimonial property – superannuation splitting order made to achieve 50:50 split of the superannuation accounts of the parties.

Family Law Act 1975 (Cth) 75, 79, 90MT

Family Law Act (Superannuation) Regulations 2001 (Cth)

Cerini and Cerini [1998] FamCA 143
Chorn and Hopkins (2004) FLC 93-204
Ferraro and Ferraro (1993) FLC 92-335
Omacini and Omacini (2005) FLC 93-218
Shimizu & Tanner [2011] FamCA 271
Stanford & Stanford [2012] HCA 52
Kouper & Kouper (No 3) [2009] FamCA 1080

APPLICANT:

Ms Redden

RESPONDENT:

Mr Pennington

FILE NUMBER:

ADC

1511

2011

DATE DELIVERED:

1 March 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

18-22 June & 15-16 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dickson

SOLICITOR FOR THE APPLICANT:

David Burrell & Co
(Formerly Robinson & Mason)

COUNSEL FOR THE RESPONDENT:

Mr McQuade

SOLICITOR FOR THE RESPONDENT:

Adey Lawyers

Orders

That in full and final settlement of all claims between the parties for settlement of property under Part VIII of the Family Law Act 1975 as amended that:
(a)Within thirty (30) days of this date the wife do transfer to the husband all her right, title and interest both at law and in equity in the house property situated B Street, Suburb A in the State of South Australia.
(b)Contemporaneously with the transfer set out in paragraph 1(a) herein, the husband shall discharge the mortgage in the joint names of the parties and he shall refinance the said mortgage into his sole name and indemnify and keep indemnified forever the wife in respect of the same.
(c)As and from the date of this Order the husband shall indemnify and keep forever indemnified the wife with respect to any and all liabilities that have accrued or which shall accrue, from time to time, with respect to the former matrimonial home including but not limited to the mortgage commitments secured by the former matrimonial home or other property, rates, taxes, utilities and all other outgoings.
(d)Contemporaneously with the transfer as set out in paragraph 1(a) herein, the husband shall pay the wife’s solicitors trust Account on behalf of the wife the sum of FIVE HUNDRED AND EIGHT THOUSAND SEVEN HUNDRED AND THIRTY FOUR DOLLARS AND NINETY-THREE CENTS [$508,734.93].
(e)As and from the date of this Order the wife is to retain all assets which she now…

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 REDDEN & PENNINGTON

Details

AGLC: REDDEN & PENNINGTON [2013] FamCA 123
Case: [2013] FamCA 123
Decision Date: 1 March 2013

CaseChat Overview and Summary

In a property settlement matter before Dawe J, the parties disputed the adjustment of their property interests. A key issue was whether certain post-separation expenditures by the wife, specifically pecuniary gifts to her new partner, should be added back to the matrimonial asset pool. The court also considered the treatment of superannuation expectations, determining whether they should be accounted for as an asset of the matrimonial property.

The court was required to determine the appropriate method for adjusting the parties' property interests, including the add-back of post-separation gifts and the inclusion of superannuation. The court also had to consider the impact of the section 75(2) factors of the *Family Law Act 1975* on any proposed adjustments.

Dawe J determined that the wife's post-separation gifts to her new partner should be added back to the matrimonial asset pool. The court assessed the parties' contributions at 55% in favour of the wife, but made no further adjustment under section 75(2) factors. Regarding superannuation, the court found it was not just and equitable to bring the superannuation expectations into account as an asset of the matrimonial property. Instead, a superannuation splitting order was made to achieve a 50:50 split of the parties' superannuation accounts. The final orders detailed the transfer of property, discharge of mortgages, indemnities, and specific monetary payments, including a superannuation splitting order for a base amount of $57,205.91 from the wife's Q Superannuation Fund to the husband.

Orders

Orders of the court

That in full and final settlement of all claims between the parties for settlement of property under Part VIII of the Family Law Act 1975 as amended that:

(a) Within thirty (30) days of this date the wife do transfer to the husband all her right, title and interest both at law and in equity in the house property situated B Street, Suburb A in the State of South Australia.

(b) Contemporaneously with the transfer set out in paragraph 1(a) herein, the husband shall discharge the mortgage in the joint names of the parties and he shall refinance the said mortgage into his sole name and indemnify and keep indemnified forever the wife in respect of the same.

(c) As and from the date of this Order the husband shall indemnify and keep forever indemnified the wife with respect to any and all liabilities that have accrued or which shall accrue, from time to time, with respect to the former matrimonial home including but not limited to the mortgage commitments secured by the former matrimonial home or other property, rates, taxes, utilities and all other outgoings.

(d) Contemporaneously with the transfer as set out in paragraph 1(a) herein, the husband shall pay the wife’s solicitors trust Account on behalf of the wife the sum of FIVE HUNDRED AND EIGHT THOUSAND SEVEN HUNDRED AND THIRTY FOUR DOLLARS AND NINETY-THREE CENTS [$508,734.93].

(e) As and from the date of this Order the wife is to retain all assets which she now has in her possession whensoever and howsoever acquired and the wife shall retain for her sole use and benefit absolutely free from any further claim or demand of the husband the following:

(i) The furniture, furnishings and other articles of domestic use normally in her possession, power or control;

(ii) The savings and investments in her sole name;

(iii) Her superannuation (save and except as provided for herein) long service leave, annual leave and any other work related benefit;

(iv) Her personal effects, including but not limited to jewellery;

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

(f) Save and except as provided for herein as and from the date of this Order the husband is to retain all assets which he now has in his possession whensoever and howsoever acquired and the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife the following:

(i) The furniture, furnishings and other articles of domestic use normally in his possession, power or control;

(ii) The motor vehicle in his possession;

(iii) The savings and investments in his sole name;

(iv) His superannuation, long service leave, annual leave and any other work related benefit;

(v) His personal effects;

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

(g) If the husband shall fail to pay the sum referred to in paragraph 1(d) herein, then interest shall run on the outstanding amount of such payment from the date of default to the date of payment at the rate of ten point seven five percent (10.75%) per annum and if such default shall continue for more than one calendar month, the former matrimonial home shall be placed on the market for sale with such agents and upon such terms as may be agreed between the parties and failing agreement as determined by this Honourable Court and the proceeds of sale shall be applied as follows:-

(i) Firstly, in payment of all costs and disbursements incurred in relation to such sale;

(ii) Secondly, to discharge the mortgage and any other encumbrances affecting or registered against the former matrimonial home;

(iii) Thirdly, to the wife the sum of FIVE HUNDRED AND EIGHT THOUSAND SEVEN HUNDRED AND THIRTY FOUR DOLLARS AND NINETY-THREE CENTS [$508,734.93] (or so much thereof as is then outstanding) plus any interest accrued and owing as set out herein;

(iii) Fourthly, in payment of any and all legal, accounting or other professional costs and expenses incurred by the wife in enforcing or giving effect to this Order;

(iv) Finally, to the husband the remaining balance (if any).

(h) As required by Section 90MT (4) of the Family Law Act 1975 the Court allocates a base amount of FIFTY SEVEN THOUSAND TWO HUNDRED AND FIVE DOLLARS AND NINETY-ONE CENTS [$57,205.91] to the husband out of the wife’s interest in the Q Superannuation Fund (“the fund”).

(i) Pursuant to Section 90MT (1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable from the wife’s interest in the fund, the trustee shall pay to the husband or his administrators, executors, beneficiaries, heirs or assigns the entitlements calculated in accordance with Part VII of the Family Law (Superannuation) Regulations 2001 using a base amount of FIFTY SEVEN THOUSAND TWO HUNDRED AND FIVE DOLLARS AND NINETY-ONE CENTS [$57,205.91] and there shall be a corresponding reduction to the entitlement the wife would have received from the fund but for these Orders.

(j) Within fourteen [14] days of the date of this Order the husband is to serve upon the trustee of the wife’s Q Superannuation fund a sealed copy of these orders.

(k) These Orders bind the trustees of the fund to observe the trustee’s obligation set out in the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, noting that such trustees have been accorded procedural fairness.

(l) The trustees of the fund in accordance with the Family Law Act 1975 shall do all such acts and things and sign the necessary documents as may be necessary to make payment to the husband in accordance with the terms herein.

(m) The Order for splitting has effect from the operative time, being the fourth (4th) business day after which a copy of such Orders are served upon the Trustee.

(n) Each party do all such acts and things and sign all such necessary documents to give effect to the terms of this Order.

(o) Hereafter each party shall discharge without calling upon the other to contribute to their several debts contracted by or for them.

(p) Hereafter each party is restrained and an injunction is hereby granted restraining each of them from pledging the credit of the other.

(q) The transferee shall pay the costs and disbursements of and incidental to the transfer necessary to give effect to the terms of this Order.

(r) If either party shall refuse, neglect or fail to execute any documents necessary to give effect to the terms hereof, then, upon proof by Affidavit of such refusal or failure to sign, after providing such documents to the other party for a period of not less than seven (7) days:

(i) A Registrar of this Honourable Court is hereby appointed to execute on behalf of the defaulting party and the Registrar shall do all such further act, matters, deeds or things required to execute such documents that shall be necessary to give full force and effect to the Orders;

(ii) The party in default shall pay the other parties costs as agreed between the parties or as taxed.

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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