FAMILY COURT OF AUSTRALIA
| REICHSTEIN v REICHSTEIN | [2006] FamCA 1422 |
| APPEAL – PROPERTY – Whether trial Judge erred in failing to “add back” to pool of assets certain liabilities of husband and not including certain assets acquired by wife after separation – Whether trial Judge failed to give adequate reasons for inclusion of proceeds of sale of shares by husband after separation – Whether trial Judge gave insufficient weight to initial contributions of husband – Trial Judge made erroneous factual finding as to value of initial contribution of husband – Finding underpinned trial Judge’s overall assessment of contributions – Ground established – Whether trial Judge failed to properly assess husband’s contributions in respect of overseas bank account – Husband failed to comply with obligation to make full, frank and complete disclosure – Trial Judge not in error in treatment of account given state of evidence and husband’s substantial non-disclosure – Whether trial Judge erred in failing to take into account as a contribution the welfare of wife’s children from previous marriage – No error by trial Judge in rejecting husband’s submission he should receive weighting for a contribution under s 79(4)(c) – Whether trial Judge erred in failing to take into account husband’s post separation contributions to his superannuation – Trial Judge did not assess and make findings about parties’ post separation superannuation contributions – Failure constitutes appealable error. Whether trial Judge erred in making adjustment in wife’s favour of 13 per cent for Whether trial Judge in error in that overall result not just and equitable – Merit in this ground. Appeal allowed – Re-exercise of discretion – Overall contributions to superannuation and non-superannuation assets assessed at 76 per cent by the husband and 24 per cent by the wife after minor adjustment to pool – Appropriate adjustment under s 75(2) was 6 per cent. |
| Family Law Act 1975 (Cth), ss 75(2), 79 |
A v J (1995) FLC 92-619
Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 93-033
Bennett and Bennett (1991) FLC 92-191
Black and Kellner (1992) FLC 92-287
Briese and Briese (1986) FLC 91-713
Coghlan and Coghlan (2005) FLC 93-220
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
House v The King (1936) 55 CLR 499
JEL and DDF (2001) FLC 93-075
Kannis and Kannis (2003) FLC 93-135
Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712
Oriolo and Oriolo (1985) FLC 91-653
Robb and Robb (1995) FLC 92-555
Townsend and Townsend (1995) FLC 92-569
Waters and Jurek (1995) FLC 92-635
Weir and Weir (1993) FLC 92-338
| APPELLANT: | AER |
| RESPONDENT: | DLR |
| FILE NUMBER: | ADF | 908 | of | 2004 |
| APPEAL NUMBER: | SA | 15 | of | 2006 |
| DATE DELIVERED: | 29 November 2006 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | BRYANT CJ, KAY & BOLAND JJ |
| HEARING DATE: |
Continue reading Reichstein & Reichstein
Sign in free to access the full text
- AGLC
- Reichstein & Reichstein [2006] FamCA 1422
- Case
- [2006] FamCA 1422
- Decision Date
CaseChat Overview and Summary
The Full Court found that the trial judge had made an appealable error in failing to assess and make findings regarding the parties' post-separation superannuation contributions. Additionally, the court determined that the adjustment made in favour of the wife under section 75(2) of the *Family Law Act 1975* (Cth) was excessive. While acknowledging the husband's failure to make full and frank disclosure regarding an overseas bank account, the court found no error in the trial judge's treatment of that matter given the state of the evidence. The court also upheld the trial judge's rejection of the husband's submission for weighting regarding a contribution to the welfare of the wife's children.
Allowing the appeal, the Full Court re-exercised the discretion of the court. The overall contributions to superannuation and non-superannuation assets were assessed at 76 per cent for the husband and 24 per cent for the wife, with a minor adjustment to the asset pool. The appropriate adjustment under section 75(2) factors was determined to be 6 per cent in favour of the wife. The court substituted new orders, including specific provisions for the division of the husband's superannuation entitlement and a payment of $313,827.00 to the wife, with provisions for sale of property in the event of default. The parties were granted liberty to file written submissions regarding the costs of the appeal.
Orders
Orders of the court
1.
That the appeal is allowed.
2.
That Order 6.1, 6.2 and 6.9 of the orders of the Honourable Justice Mushin of 6 March 2006 being orders pursuant to the “slip rule” amending orders of the Honourable Justice Morgan of 15 February 2006 be set aside and the following orders substituted in lieu:
6.1. In respect of the husband's superannuation entitlement with Colonial Superannuation Fund;
6.1.1 That in accordance with s 90MT(i)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment is payable in respect of the superannuation interest of the husband in the Colonial Superannuation Fund the wife is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $39,452.00 of the member entitlement and there be a corresponding reduction in the entitlement the husband would have had but for these orders.
6.1.2 That the operative time of these orders shall be 4 days after the service of the order upon the trustee.
6.1.3 This order binds the trustee or trustees from time to time of the Colonial Superannuation Fund.
6.2 That the husband pay to the wife within 60 days of the date of this order by bank cheque the sum of $313,827.00.
6.9 That if the husband shall default in payment of the sum of $313,827.00 or any part thereof then interest shall accrue thereon from the date of default until the date of payment at the rate prescribed by the Family Law Rules 2004 and if such default shall continue for a further period of 14 days then:
6.9.1 the first property shall be sold upon such terms and conditions as may be agreed and in default of agreement as may be ordered by this Honourable Court and the net proceeds shall be applied:
(a) as to the monies due and owing to the wife pursuant to these orders including interest to the wife; and
(b) the balance to the husband.
PROVIDED THAT if the net proceeds of sale of the said first property shall be insufficient to pay the wife her entitlements pursuant to these orders then
6.9.2 the second property shall be forthwith placed for sale upon such terms and conditions as the parties may agree and in default of agreement as may be ordered by this Honourable Court and the net proceeds of sale shall be paid as to:
(a) any balance due and owing to the wife pursuant to these orders to the wife; and
(b) the balance to the husband.
3.
The parties are at liberty to file written submissions with regard to the costs of the appeal in accordance with the following timetable:
(a) on behalf of the appellant within 21 days of the date hereof;
(b) on behalf of the respondent in response thereto within 21 days thereafter;
(c) on behalf of the appellant in reply thereto within seven days thereafter; and
(d) that each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
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.