Renoir and O’Reilly

[2008] FamCA 218

FAMILY COURT OF AUSTRALIA

RENOIR & O’REILLY [2008] FamCA 218

FAMILY LAW – PROPERTY SETTLEMENT – SUPERANNUATION – Application of the wife seeking a splitting order of the superannuation fund of the husband successful, pursuant to s 90MT Family Law Act 1975 – Norbis v Norbis (1986) FLC 91-712 and C & C (2005) FLC 93-220 cited.

Family Law Act 1975(Cth) Part VIII and Part VIIIB s 90MT(1)(a), 90ME, 106A
Family Law (Superannuation) Regulations 2001(Cth) Rule 14G

APPLICANT: Ms Renoir

RESPONDENT: Mr O’Reilly

FILE NUMBER: PAF 1430 of 2004

DATE DELIVERED: 7 April 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: COLEMAN J

HEARING DATE: 2 APRIL 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms Sarah Bevan
Sarah Bevan Family Lawyers

COUNSEL FOR THE RESPONDENT: Self Represented

SOLICITOR FOR THE RESPONDENT:

Orders

1. The Court notes that the husband is a member of the AMP Flexible Lifetime Superannuation Plan (Member No. …) (“the fund”).

2. That, pursuant to s 90MT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment within the meaning of s 90ME of the Act becomes payable in respect of the husband’s interest in the fund, the wife shall be entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 (“the Regulations”), using a base amount of $31 908 and that there be a corresponding reduction to the entitlement the husband would have had in the fund but for this order.

3. The operative time for Order 2 is four business days from the date of the service of these orders upon the trustee.

4. That the non-member wife request the trustee to roll over or transfer the transferable benefits out of the husband’s superannuation interest in accordance with the requirements of the trust deed.

5. The Court notes, pursuant to r 14G of the Family Law (Superannuation) Regulations 2001, any payments from the husband’s superannuation interests made after the trustee has rolled-over or transferred the wife’s interest out of the fund are not splittable payments.

6. That, except as otherwise provided herein, each party is solely entitled, to the exclusion of the other party, to the property (real and personal), financial resources and superannuation currently held in that party’s name or to which that party may be otherwise beneficially entitled.

7. In the event that either party fails, refuses or neglects to sign any document required to give effect to these orders then the Registrar of this Court is hereby empowered pursuant to s 106A of the Act to sign that document in the place of the party in default and to do all acts and things to give that document full force, effect and validity.

8. That costs be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Renoir & O’Reilly is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1430 of 2004

MS RENOIR

Applicant

And

MR O’REILLY

Respondent

REASONS FOR JUDGMENT

1. On 20 July 2007 the Court published its Reasons for Judgment in proceedings between the parties pursuant to Parts VIII and VIIIB of the Family Law Act 1975 (Cth) (“the Act”). For reasons then given, the Court did not make orders finally determining the proceedings. As the judgment of 20 July 2007 envisaged, evidence of the valuation of the husband’s superannuation interest in accordance with the regulations has now been filed and further submissions made by each of the parties.

2. The valuation of the husband’s superannuation interest provided by AMP Life Limited and dated 14 August 2007 is accepted by both parties as a valuation within the terms of the Family Law (Superannuation) Regulations 2001 (Cth). Both parties accept the valuation determined by AMP Life Limited with respect to the husband’s superannuation interest. The Court is thus able to find the value of the husband’s superannuation interest to be $196 021.97.

3. As the primary judgment of 20 July 2007 reveals, for reasons there advanced, the Court concluded that, were it to be now payable, the wife should receive $31 908.14 out of the husband’s superannuation interest. Although not a valuation for the purposes of the regulations, regard was had to the figure of $205 000 in order to gain some application of the qualitative impact of that conclusion. The husband’s superannuation interest continues to be an accumulation interest currently in the growth phase and, as such, no question of the wife now receiving that sum (or any) arises. Realistically, the only way that the wife could or will ever receive her entitlement is if a splitting order is made pursuant to the provisions of Part VIIIB of the Act.

4. The trustee of the superannuation fund has been afforded procedural fairness and does not object to any splitting order, as a letter from the trustee of AMP Life Limited to the wife dated 13 June 2007 confirms. The nature of the husband’s superannuation interest, the orders sought by the wife, the provisions of the regulations and compliance with the relevant provisions of the regulations enable the Court to make a splitting interest in favour of the wife. Objectively, although so doing may appear to involve the exercise of discretion, the reality is that the basis of the splitting order was determined by the Court in its primary judgment of 20 July 2007 particularly as the value of the interest as it has emerged approximates the figure to which regard was had in the Court’s primary judgment. At the commencement of the trial of the proceedings in June 2007, counsel for the wife provided Minutes of the Order sought by her client. Such Minutes were served on behalf of the husband at that time and were referred to during the course of proceedings on 2 April 2008.

5. Although there was a suggestion by counsel for the wife that the splitting order should now be referrable to the current value of the husband’s superannuation interest, to the extent that the Court might be able to do that, it does not propose so doing, particularly as there is no evidence of the value of the husband’s superannuation interest at the present time and reliance upon the valuation in accordance with the regulation which has been filed, albeit now almost eight months old, does not in the circumstances of this case have the potential to visit an injustice upon the wife. This is particularly so as the valuation of the husband’s interest is almost $8000 less than the only other figure which the Court could, and did, regard.

6. In the Court’s view the appropriate order is that the “base amount” of $31 908 be inserted in the Minute of Orders sought by the wife and the Court will so order. As the Court was reminded by counsel for the wife, the appropriate operative time for the splitting order should be four business days after the service of the orders upon the Trustee, and the Court will so order.

7. The costs of the hearing of 2 April 2008 will be reserved.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate: 

Date:  7 April 2008