Rickard and Griffin - [2010] FamCA 1199

FAMILY COURT OF AUSTRALIA

RICKARD & GRIFFIN

[2010] FamCA 1199

FAMILY LAW – PROPERTY SETTLEMENT – Argument about contributions and add backs – Adjustments under ss 79 and 75(2) because of limited pool of assets, husband not seeing the children and lack of regular child support

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Bonnici (1992) FLC 92-272
Chorn and Hopkins (2004) FLC 93-204
Coghlan and Coghlan (2005) FLC 93-220
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervenor)(2003) FLC 93-143
In the Marriage of Clausen (1995) 18 Fam LR 693
Kowali and Kowali (1981) FLC 91-092
Mallett and Mallett (1984) 156 CLR 605
MVB and SDB (2005) FamCA 389
Norbis and Norbis (1986) 161 CLR 513
Omacini and Omacini (2005) FLC 93-218
Townsend and Townsend (1995) FLC 92-569
VAK and AK [2005] FamCA 803

APPLICANT:

Mr Rickard

RESPONDENT:

Ms Griffin

FILE NUMBER:

MLF

2650

2006

DATE DELIVERED:

24 DECEMBER 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

20 DECEMBER 2010

REPRESENTATION

THE APPLICANT:

IN PERSON

COUNSEL FOR THE RESPONDENT:

MR WEIL

SOLICITOR FOR THE RESPONDENT:

HOGG AND REID

Orders

Whenever a splittable payment is payable in respect of the superannuation interest of THE HUSBAND born … 1965 in the EMERGENCY SERVICES SUPERANNUATION SCHEME:
(a)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 $65,000 at the operative time being the date of this order; and
(b)there is to be a corresponding reduction in the entitlement of THE HUSBAND, being the person to whom the splittable payment would have been made but for this order.
This order binds the trustee from time to time of the superannuation fund.
The operative time for the purposes of this order is 4 business days after the day of service upon the trustee of a sealed copy of this order.
That the funds held in trust by Moores Legal on behalf of the husband and the wife including any accrued interest thereon, be divided as follows:
(a) as to the husband, 30%; and
(b) as to the wife, 70%.
That paragraph 4 of these orders is not operative until 4 pm on Friday 4 February 2011.
That should either party seek costs arising out of these orders or any extant orders for reserved costs, they may do so by written submission filed and served by 4 pm on 14 January 2011 with the original submission endorsed with the details of the service on the other party.
Any party who receives a written submission relating to costs referred to in paragraph 6 of these orders shall have until 4 pm on 21 January 2011 to file and serve any reply and the reply shall be endorsed with the details of the service on the other party.
If submission(s) are received relating to costs, they shall be determined by me in chambers.
Upon the operation…

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 Rickard and Griffin

Details

AGLC: Rickard and Griffin [2010] FamCA 1199
Case: [2010] FamCA 1199
Decision Date: 24 DECEMBER 2010

CaseChat Overview and Summary

This matter concerned an application before Justice Cronin concerning the division of superannuation interests and other funds between a husband and wife. The dispute involved the entitlement of the wife to a portion of the husband's superannuation and the division of funds held in trust by Moores Legal.

The court was required to determine the specific entitlements of each party to the husband's superannuation interest, including the method of calculation and the operative time for such division. Additionally, the court needed to determine the proportions in which funds held in trust by Moores Legal were to be divided between the husband and wife, and the operative date for this division. The court also addressed the procedure for any applications relating to costs.

Justice Cronin ordered that whenever a splittable payment became payable in respect of the husband's superannuation interest, the wife was entitled to a calculated amount based on a specified sum, with a corresponding reduction in the husband's entitlement. This order was to bind the superannuation trustee. The operative time for this superannuation division was set at four business days after service of the sealed order on the trustee. Furthermore, the court ordered that funds held in trust by Moores Legal were to be divided, with 70% to the wife and 30% to the husband, this division to become operative on a specific date. The court also established a process for written submissions regarding costs, with specific deadlines for initial submissions and replies, and reserved the determination of costs to chambers. Upon the operative date of the fund division, Moores Legal was to pay the husband's entitlement by cheque. All other extant applications, save for costs, were dismissed.

Orders

Orders of the court

Whenever a splittable payment is payable in respect of the superannuation interest of THE HUSBAND born … 1965 in the EMERGENCY SERVICES SUPERANNUATION SCHEME:

(a) 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 $65,000 at the operative time being the date of this order; and

(b) there is to be a corresponding reduction in the entitlement of THE HUSBAND, being the person to whom the splittable payment would have been made but for this order.

This order binds the trustee from time to time of the superannuation fund.

The operative time for the purposes of this order is 4 business days after the day of service upon the trustee of a sealed copy of this order.

That the funds held in trust by Moores Legal on behalf of the husband and the wife including any accrued interest thereon, be divided as follows:

(a) as to the husband, 30%; and

(b) as to the wife, 70%.

That paragraph 4 of these orders is not operative until 4 pm on Friday 4 February 2011.

That should either party seek costs arising out of these orders or any extant orders for reserved costs, they may do so by written submission filed and served by 4 pm on 14 January 2011 with the original submission endorsed with the details of the service on the other party.

Any party who receives a written submission relating to costs referred to in paragraph 6 of these orders shall have until 4 pm on 21 January 2011 to file and serve any reply and the reply shall be endorsed with the details of the service on the other party.

If submission(s) are received relating to costs, they shall be determined by me in chambers.

Upon the operation of paragraph 4 and any amendment to it by virtue of any costs determination, any entitlement of the husband shall be forthwith paid to him by Moores Legal by cheque by post.

10.

That save as to the issue of costs, all extant applications are otherwise dismissed.

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.