Schendel and Rawlin - [2020] FamCA 114

FAMILY COURT OF AUSTRALIA

SCHENDEL & RAWLIN

[2020] FamCA 114

FAMILY LAW – PROPERTY SETTLEMENT – Where the de facto husband is a bankrupt – Where the applicant de facto wife resolved property issues as to non-superannuation property with the de facto husband’s Trustee in Bankruptcy – Where orders sought as to superannuation splitting order – Where discussion of applicable principles – Where appropriate that there be a splitting order in favour of the de facto wife of the husband’s superannuation.

Family Law Act 1975 (Cth) ss 79, 90SF, 90SM

Bevan& Bevan [2014] FamCAFC 19
Brandt v Brandt [1997] FamCA 21; (1997) FLC 92-758
Chapman & Chapman [2014] FamCAFC 91
Fontana & Fontana [2018] FamCAFC 63
Harris & Harris (1991) 104 FLR 458
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

APPLICANT:

Ms Schendel

RESPONDENT:

Mr Rawlin

FILE NUMBER:

PAC

1220

2019

DATE DELIVERED:

28 February 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

6 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Pearce of Coleman Greig Lawyers

RESPONDENT – SELF-REPRESENTED LITIGANT:

No appearance

Orders

That a base amount of $38,000 is allocated, as required by Section 90XT(4) of the Family Law Act 1975 (Cth) to the applicant Ms Schendel out of the respondent Mr Rawlin’s (born … 1975) interest in the B Super Fund (“the fund”), member number …31.
That in accordance with Section 90XT(1)(a) of the Family Law Act 1975 (Cth) the Court:
(a)Creates an entitlement on the part of the applicant Ms Schendel to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)Makes a corresponding reduction in the entitlement of the respondent Mr Rawlin, or such other person to whom a splittable payment may be made or would have had in the fund but for this order.
That whenever the Trustee of the fund makes a splittable payment out of the respondent Mr Rawlin’s interest in the fund, the fund shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in the orders above in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth).
That the above orders have effect from the operative time and the operative time is four business days after the service of the sealed copy of these orders on the trustee.
That these orders bind the Trustee of the B Super Fund.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Schendel & Rawlin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 Schendel and Rawlin

Details

AGLC: Schendel and Rawlin [2020] FamCA 114
Case: [2020] FamCA 114
Decision Date: 28 February 2020

CaseChat Overview and Summary

This matter came before Foster J concerning an application by Ms Schendel against Mr Rawlin regarding the division of superannuation interests. The dispute centred on the appropriate allocation of a portion of Mr Rawlin's superannuation fund to Ms Schendel.

The court was required to determine how to implement a division of superannuation interests pursuant to the *Family Law Act 1975* (Cth). Specifically, the court needed to establish a base amount to be allocated to Ms Schendel and create a corresponding entitlement for her within Mr Rawlin's superannuation fund, while reducing his entitlement.

Foster J applied sections 90XT(4) and 90XT(1)(a) of the *Family Law Act 1975* (Cth) and Part 6 of the *Family Law (Superannuation) Regulations 2001* (Cth). The court ordered that a base amount of $38,000 be allocated to Ms Schendel from Mr Rawlin's interest in the B Super Fund. The court further created an entitlement for Ms Schendel to be paid an amount calculated in accordance with the regulations, with a corresponding reduction in Mr Rawlin's entitlement. The trustee of the fund was directed to take all necessary steps to give effect to these orders upon service of the sealed court documents.

Orders

Orders of the court

That a base amount of $38,000 is allocated, as required by Section 90XT(4) of the Family Law Act 1975 (Cth) to the applicant Ms Schendel out of the respondent Mr Rawlin’s (born … 1975) interest in the B Super Fund (“the fund”), member number …31.

That in accordance with Section 90XT(1)(a) of the Family Law Act 1975 (Cth) the Court:

(a) Creates an entitlement on the part of the applicant Ms Schendel to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and

(b) Makes a corresponding reduction in the entitlement of the respondent Mr Rawlin, or such other person to whom a splittable payment may be made or would have had in the fund but for this order.

That whenever the Trustee of the fund makes a splittable payment out of the respondent Mr Rawlin’s interest in the fund, the fund shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in the orders above in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth).

That the above orders have effect from the operative time and the operative time is four business days after the service of the sealed copy of these orders on the trustee.

That these orders bind the Trustee of the B Super Fund.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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