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 | of | 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…
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- Rickard and Griffin [2010] FamCA 1199
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- [2010] FamCA 1199
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CaseChat Overview and Summary
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
1.
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.
2.
This order binds the trustee from time to time of the superannuation fund.
3.
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.
4.
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%.
5.
That paragraph 4 of these orders is not operative until 4 pm on Friday 4 February 2011.
6.
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.
7.
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.
8.
If submission(s) are received relating to costs, they shall be determined by me in chambers.
9.
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
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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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