S & S - [2007] FamCA 973

FAMILY COURT OF AUSTRALIA

S & S

[2007] FamCA 973

FAMILY LAW – SUPERANNUATION – Consent Orders – Application to set aside superannuation orders made prior to the commencement of superannuation legislation – Impracticability – Review of Decision of Registrar – Extension of Time to Review – Leave to Review – Order made splitting superannuation.

Family Law Act 1975 (Cth) s 79A
Family Law Legislation Amendment (Superannuation) Act 2001 (Cth)

RBH & JIH [2005] FamCA 226

APPLICANT:

Ms S

RESPONDENT:

Mr S

FILE NUMBER:

HBC

527

2007

DATE DELIVERED:

5 July 2007

PLACE DELIVERED:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

5 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M. Trezise

SOLICITOR FOR THE APPLICANT:

Dobson Mitchell and Allport

COUNSEL FOR THE RESPONDENT:

Mr I. Guest

SOLICITOR FOR THE RESPONDENT:

Ian Guest and Associate

Orders

BY CONSENT

THAT an extension of time be granted to the Wife to review the property adjustment Orders of Registrar Weidmann made 18 December 2001 (“the Orders”).
THAT paragraph 7 of the Orders be set aside.
THAT in relation to the Husband’s superannuation interest with the X Superannuation Fund – Member No. … (“the Fund”):-
(a)having been accorded procedural fairness, sub-paragraphs 3(b), (c) and (d) below are binding on the Trustee of the Fund;
(b)pursuant to Section 90MT(4) of the Family Law Act 1975 the base amount allocated to the Wife out of the interest of the Husband in the Fund is $13,500.00 (“the base amount”);
(c)pursuant to Section 90MT (1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the Husband in the Fund, the Wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there will be a corresponding reduction in the entitlement of the Husband;
(d)sub-paragraph (c) has effect from the operative time and the operative time for these purposes is four (4) business days after the date of service of a sealed copy of this Order upon the Trustee of the Fund.
(e)within fourteen (14) days of becoming entitled to receive a superannuation benefit from the Fund, the Husband will give the Trustee of the Fund:-
(i)all such forms as are necessary to enable it to determine the nature and quantum of the Wife’s superannuation entitlement; and
(ii)any other related information it may reasonably require;
(f)there be liberty to each party and the Trustee of the Fund to apply regarding the implementation of this Order affecting the interests of the Husband and the Wife in the Fund;
(g)in the event that the superannuation split to the Wife pursuant to this Order can be rolled over into a separate account to the Wife each of the parties will do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that roll over.
(h)until such time as the superannuation split to the Wife pursuant to this Order…

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 S & S

Details

AGLC: S & S [2007] FamCA 973
Case: [2007] FamCA 973
Decision Date: 5 July 2007

CaseChat Overview and Summary

This matter came before Benjamin J concerning an application by the Wife to review property adjustment orders made by Registrar Weidmann on 18 December 2001. The dispute centred on the division of the Husband's superannuation interest in the X Superannuation Fund.

The court was required to determine whether to grant the Wife an extension of time to review the existing orders, whether to set aside paragraph 7 of those orders, and how to adjust the Husband's superannuation interest in the X Superannuation Fund to provide for the Wife's entitlement. The court also needed to consider the procedural fairness afforded to the Trustee of the Fund and the operative time for any new orders concerning the superannuation split.

By consent of the parties, Benjamin J granted the Wife an extension of time to review the property adjustment orders and set aside paragraph 7 of those orders. The court then made orders pursuant to sections 90MT(4) and 90MT(1)(a) of the *Family Law Act 1975*, allocating a base amount of $13,500.00 to the Wife from the Husband's superannuation interest. These orders stipulated that whenever a splittable payment became payable from the Husband's interest, the Wife would be entitled to a calculated amount, resulting in a corresponding reduction in the Husband's entitlement. The court also made detailed provisions regarding the operative time for these orders, the Husband's obligations to provide information to the Trustee, and mechanisms to facilitate and protect the Wife's superannuation entitlement, including restraints on the Husband and communication protocols with the Trustee. Liberty to apply was granted to all parties and the Trustee regarding the implementation of these orders.

The court ordered that all extant applications be otherwise dismissed. It was certified that it was reasonable to engage counsel to attend the proceedings.

Orders

Orders of the court

BY CONSENT

THAT an extension of time be granted to the Wife to review the property adjustment Orders of Registrar Weidmann made 18 December 2001 (“the Orders”).

THAT paragraph 7 of the Orders be set aside.

THAT in relation to the Husband’s superannuation interest with the X Superannuation Fund – Member No. … (“the Fund”):-

(a) having been accorded procedural fairness, sub-paragraphs 3(b), (c) and (d) below are binding on the Trustee of the Fund;

(b) pursuant to Section 90MT(4) of the Family Law Act 1975 the base amount allocated to the Wife out of the interest of the Husband in the Fund is $13,500.00 (“the base amount”);

(c) pursuant to Section 90MT (1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the Husband in the Fund, the Wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there will be a corresponding reduction in the entitlement of the Husband;

(d) sub-paragraph (c) has effect from the operative time and the operative time for these purposes is four (4) business days after the date of service of a sealed copy of this Order upon the Trustee of the Fund.

(e) within fourteen (14) days of becoming entitled to receive a superannuation benefit from the Fund, the Husband will give the Trustee of the Fund:-

(i) all such forms as are necessary to enable it to determine the nature and quantum of the Wife’s superannuation entitlement; and

(ii) any other related information it may reasonably require;

(f) there be liberty to each party and the Trustee of the Fund to apply regarding the implementation of this Order affecting the interests of the Husband and the Wife in the Fund;

(g) in the event that the superannuation split to the Wife pursuant to this Order can be rolled over into a separate account to the Wife each of the parties will do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that roll over.

(h) until such time as the superannuation split to the Wife pursuant to this Order can be rolled over into a separate account to the Wife:-

(i) the Husband will give to the Wife written notice not less than twenty-eight (28) days before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the Fund;

(ii) the Husband will direct and authorise the Trustee of the Fund to communicate with the Wife and/or any person authorised by her in writing:

- to answer any reasonable enquiries as may be made by her or on her behalf from time to time regarding her entitlement in the Fund; and

- to give to the Wife and/or her authorised representative a copy of any notice of any application or request by the Husband which seeks release of entitlements in the Fund in so far as that release may affect the Wife’s entitlement in the fund pursuant to this Order;

(iii) the Husband by himself, his servants and/or agents be and are restrained from doing any act or thing which would prevent the Wife, her heirs, executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to this Order;

(i) each party sign all such documents and do all such things as may be required to implement the terms of this Order.

THAT all extant applications be otherwise dismissed.

IT IS DIRECTED

THAT a transcript of the reasons for these orders be taken out and placed on the Court file.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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