SANDER & ABBEY (No.2) - [2019] FCCA 1792

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDER & ABBEY (No.2)

[2019] FCCA 1792

Catchwords:
FAMILY LAW – Property – division of matrimonial property – marriage of 8 years in duration – pool of property potentially available to be distributed modest – assessment of contributions – treatment of add backs – superannuation – earning capacity – section 75(2) factors – just and equitable.

Legislation:

Evidence Act 1995 (Cth), s.140

Family Law Act 1975 (Cth), ss.75, 79, 90XC, 90XE, 90XT

Cases cited:

Bevan & Bevan [2013] FamCAFC 116

Biltoft & Biltoft (1995) FLC 92-614

Clauson v Clauson (1995) FLC 92-595

C & C (2005) FLC 93-220

D & D [2003] FamCA 473

Ferraro v Ferraro (1993) FLC 92-335

Fox v Percy (2003) 214 CLR 118

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143

In the Marriage of Browne & Green (1999) 25 Fam LR 482

In the Marriage of DJM & JLM (1998) 23 Fam LR 396

In the Marriage of Kowaliw (1981) FLC 91-092

In the Marriage of Marker [1998] FamCA 42

In the Marriage of Townsend (1994) 18 Fam LR 505

Lee Steere v Lee Steere (1998) FLC 91-626

Russell & Russell [1999] FamCA 1875

Stanford v Stanford [2012] HCA 52

Trevi & Trevi [2018] FamCAFC 173

Wardman & Hudson (1978) FLC 90-466

Waters & Jurek (1995) FLC 92-635

Applicant:

MR SANDER

Respondent:

MS ABBEY

File Number:

ADC 2749 of 2016

Judgment of:

Judge Brown

Hearing date:

4 June 2019

Date of Last Submission:

4 June 2019

Delivered at:

Adelaide

Delivered on:

11 July 2019

REPRESENTATION

Counsel for the Applicant:

Mr Anderson

Solicitors for the Applicant:

Adelaide Family Law

Counsel for the Respondent:

Mr Dillon

Solicitors for the Respondent:

Andrew Hill & Co

ORDERS

Within twenty eight days (28) of the making of this order the husband receive the amount of thirty nine thousand seven hundred and eighty eight dollars and fifty three cents ($39,788.53) from the proceeds of sale of the Suburb A property.
Within twenty eight days (28) of the making of this order the wife receive the amount of sixty nine thousand six hundred and thirty five dollars and eighteen cents ($69,635.18) from the proceeds of sale of the Suburb A property.
Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) there be a splitting order, in the sum of fourteen thousand two hundred and seventy five dollars and ten cents ($14,275.10), made in the wife’s favour out of the funds currently standing in the husband’s name in his Employer C Super Fund.
The trustee of the chosen super fund do all things necessary to give effect to order (3) hereof and within twenty eight days (28) of the making of this order to rollover the sum to be split in the wife’s favour to the superannuation fund as nominated by the wife.
The wife will serve a copy of these orders on the trustee of the husband’s Employer C Super Fund within twenty eight days (28) of the date of these orders and thereafter…

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 SANDER & ABBEY (No.2)

Details

AGLC: SANDER & ABBEY (No.2) [2019] FCCA 1792
Case: [2019] FCCA 1792
Decision Date: 11 July 2019

CaseChat Overview and Summary

In this matter before Judge Brown, the parties, husband and wife, sought the division of their matrimonial property following an eight-year marriage. The dispute concerned the assessment of contributions, the treatment of "add backs" to the property pool, superannuation entitlements, earning capacity, and the application of section 75(2) factors to achieve a just and equitable outcome. The overall pool of property available for distribution was described as modest.

The court was required to determine the appropriate method for valuing and dividing the parties' assets and liabilities, including the treatment of certain financial resources that the husband sought to have added back to the property pool. Key issues included the assessment of the parties' respective financial and non-financial contributions to the marriage, the impact of their earning capacities on future financial circumstances, and how the statutory considerations under section 75(2) of the *Family Law Act 1975* (Cth) should inform the final property division to ensure it was just and equitable. The court also had to consider the division of superannuation interests.

Judge Brown reasoned that a just and equitable division required a careful balancing of the parties' contributions and future needs. The court considered the evidence presented regarding the parties' financial and non-financial contributions throughout the marriage, as well as their respective earning capacities and other relevant circumstances under section 75(2). The court made specific orders for the division of proceeds from the sale of a property, a splitting order in relation to the husband's superannuation fund in favour of the wife, and confirmed that each party would retain certain specified assets and personal effects for their sole use and benefit. All property applications were dismissed.

Orders

Orders of the court

Within twenty eight days (28) of the making of this order the husband receive the amount of thirty nine thousand seven hundred and eighty eight dollars and fifty three cents ($39,788.53) from the proceeds of sale of the Suburb A property.

Within twenty eight days (28) of the making of this order the wife receive the amount of sixty nine thousand six hundred and thirty five dollars and eighteen cents ($69,635.18) from the proceeds of sale of the Suburb A property.

Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) there be a splitting order, in the sum of fourteen thousand two hundred and seventy five dollars and ten cents ($14,275.10), made in the wife’s favour out of the funds currently standing in the husband’s name in his Employer C Super Fund.

The trustee of the chosen super fund do all things necessary to give effect to order (3) hereof and within twenty eight days (28) of the making of this order to rollover the sum to be split in the wife’s favour to the superannuation fund as nominated by the wife.

The wife will serve a copy of these orders on the trustee of the husband’s Employer C Super Fund within twenty eight days (28) of the date of these orders and thereafter the aforesaid trustee has liberty to relist the matter in the event that the trustee is unable to comply with order (3) hereof.

The trustee of the Employer C Super Fund and the wife in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all necessary documents as are required to calculate the payment entitlements of the wife in accordance with order (3) hereof.

As and from the date of this order the husband retain for his sole use and benefit, absolutely free from any further claim or demand of the wife:

(a) All furniture and effects in his possession, power and control, including the pool table that was included in the pool of assets;

(b) all motor vehicles in his possession;

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits, subject to the provisions of order (3) hereof;

(e) his personal effects; and

(f) any other real and/or personal property and/or financial resources of the husband or in the husband’s name and/or possession not otherwise specified herein.

As and from the date of this order the wife retain for her sole use and benefit absolutely free from any further claim or demand of the husband:

(a) all furniture and furnishings in her possession, power and control;

(b) any motor vehicle in her possession;

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits;

(e) her personal effects; and

(f) any other real and/or personal property and/or financial resources of the wife or in the wife’s name and/or possession not otherwise specified herein.

All property applications are 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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