Schmidt and Fleming - [2014] FCCA 1625

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHMIDT & FLEMING

[2014] FCCA 1625

Catchwords:
FAMILY LAW – Whether a de facto relationship existed – whether the Court has jurisdiction to make property adjustment orders.

Legislation:

Family Law Act 1975, ss.4AA, 90RD, 90SM, 90SF(3), 90MT(1)(a), 90ME

Applicant:

MS SCHMIDT

Respondent:

MR FLEMING

File Number:

DUC 239 of 2013

Judgment of:

Judge Dunkley

Hearing dates:

26, 27, 28 & 29 May 2014

Date of Last Submission:

29 May 2014

Delivered at:

Parramatta

Delivered on:

5 August 2014

REPRESENTATION

Counsel for the Applicant:

Ms Obradovic

Solicitors for the Applicant:

North & Badgery

Solicitor-Advocate for the Respondent:

Mr Gittoes-Caesar

Solicitors for the Respondent:

Coleman Greig Lawyers

DECLARATIONS

A.Pursuant to section 90 RD of the Family Law Act1975, Ms Schmidt and Mr Fleming are declared to have lived in a de facto relationship from November 1991 until June 1999 and from December 1999 until 9 February 2013.

ORDERS

On or before the expiration of 40 days of the date hereof Mr Fleming shall transfer to Ms Schmidt his right, title and interest in the following properties:
(a)Property D, being all the land contained in Folio Identifier [omitted];
(b)Property M, being all the land contained Folio Identifier [omitted]; and
(c)Property A, being all the land contained in Folio Identifier [omitted]
On or before the expiration of 40 days of the date hereof Mr Fleming shall transfer to Ms Schmidt:
(a)43% of the units in water license [1]; and
(b)His shares in Telstra.
On or before the expiration of 90 days of the date hereof Mr Fleming shall pay to Ms Schmidt or as she directs the sum of $237,165, by way of property settlement.
Orders 4 to 8 (inclusive) are binding on the Trustee of [S] Super Allocated Pension Fund.
The base amount allocated to Ms Schmidt in these proceedings out of the interest of Mr Fleming (Member Number [omitted] account number [omitted]), in these proceedings in [S] Super Allocated Pension Fund is $172,763 (“the base amount”).
Pursuant to section 90MT(1)(a) of the Family Law Act1975, whenever a splittable payment within the meaning of section 90ME of the Act becomes payable in respect of the interest of Mr Fleming is [S] Super Allocated Pension Fund, Ms Schmidt shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount referred to in Order 12 above and that there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
Order 6 has the effect from the operative time.
The operative time for the purposes of Order 7 of these Orders is four business days after the date of service of these Orders upon the Trustee of [S] Super Allocated Pension Fund.
Orders 9 to 13 (inclusive) are binding on the Trustee of [S] Super Personal Retirement Plan.
The base amount allocated to Ms Schmidt in these proceedings…

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 Schmidt and Fleming

Details

AGLC: Schmidt and Fleming [2014] FCCA 1625
Case: [2014] FCCA 1625
Decision Date: 5 August 2014

CaseChat Overview and Summary

In the matter of Schmidt and Fleming, heard by Judge Dunkley, the court was required to determine the property settlement between the parties. The dispute concerned the division of various assets, including real estate, water licenses, shares, and superannuation interests.

The legal issues before the court were the appropriate distribution of these assets as a property settlement. Specifically, the court needed to decide how Mr Fleming's interests in several properties, a water license, Telstra shares, and two superannuation funds should be transferred or allocated to Ms Schmidt. The court also had to consider the mechanism for effectuating these transfers, including the role of superannuation fund trustees and the potential need for court-appointed execution of documents.

Judge Dunkley ordered Mr Fleming to transfer his right, title, and interest in three properties to Ms Schmidt. Additionally, Mr Fleming was ordered to transfer 43% of his units in a water license and his Telstra shares to Ms Schmidt. A sum of $237,165 was also to be paid by Mr Fleming to Ms Schmidt as property settlement. The court further made specific orders regarding the division of Mr Fleming's interests in two superannuation funds, [S] Super Allocated Pension Fund and [S] Super Personal Retirement Plan, allocating base amounts to Ms Schmidt and outlining the process for future splittable payments. The orders also stipulated that the Registrar of the Court could be appointed to execute documents if either party refused to do so. Finally, each party was to have sole right, title, and interest in chattels and monies in their respective possession or sole name not otherwise dealt with by the orders.

Orders

Orders of the court

On or before the expiration of 40 days of the date hereof Mr Fleming shall transfer to Ms Schmidt his right, title and interest in the following properties:

(a) Property D, being all the land contained in Folio Identifier [omitted];

(b) Property M, being all the land contained Folio Identifier [omitted]; and

On or before the expiration of 40 days of the date hereof Mr Fleming shall transfer to Ms Schmidt:

(a) 43% of the units in water license [1]; and

(b) His shares in Telstra.

On or before the expiration of 90 days of the date hereof Mr Fleming shall pay to Ms Schmidt or as she directs the sum of $237,165, by way of property settlement.

Orders 4 to 8 (inclusive) are binding on the Trustee of [S] Super Allocated Pension Fund.

The base amount allocated to Ms Schmidt in these proceedings out of the interest of Mr Fleming (Member Number [omitted] account number [omitted]), in these proceedings in [S] Super Allocated Pension Fund is $172,763 (“the base amount”).

Pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment within the meaning of section 90ME of the Act becomes payable in respect of the interest of Mr Fleming is [S] Super Allocated Pension Fund, Ms Schmidt shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount referred to in Order 12 above and that there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

Order 6 has the effect from the operative time.

The operative time for the purposes of Order 7 of these Orders is four business days after the date of service of these Orders upon the Trustee of [S] Super Allocated Pension Fund.

Orders 9 to 13 (inclusive) are binding on the Trustee of [S] Super Personal Retirement Plan.

10.

The base amount allocated to Ms Schmidt in these proceedings out of interest of Mr Fleming in these proceedings in [S] Super Personal Retirement Plan is $21,166 (“the base amount”).

11.

Pursuant to section 90MT(1)(a) of the Act, whenever a splittable payment within the meaning of section 90ME of the Act becomes payable in respect of the interest of Mr Fleming in [S] Super Personal Retirement Plan, Ms Schmidt shall be entitled to be paid an amount calculated in accordance with Part 6 of the Regulations using the base amount referred to in Order 10 above and that there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.

12.

Order 11 has effect from the operative time.

13.

The operative time for the purpose of order 12 of these Orders is four business days after the date of service of these orders upon the Trustee of [S] Super Personal Retirement Plan.

14.

The Respondent is to do all acts and things and sign all documents and give all necessary consents to subdivide Water License [1] so that 43% of units of [omitted] Regulated Rivers Water Source is transferred to the Applicant and the Respondent retains 57% units of units of [omitted] Regulated Rivers Water Source.

15.

That the parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

16.

That in the event that either party refuses or neglects to execute any deed or instrument within fourteen (14) days of being requested to do so then the Registrar of the Court be appointed pursuant to section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.

17.

That subject to the preceding orders the Applicant and Respondent are to have the sole right, title and interest in:

(a) Any chattels, goods, furnishings and other property not previously dealt with as part of these orders which are, at the date hereof in their possession respectively;

(b) Any monies, shares, debentures and superannuation entitlements not previously dealt with as part of these orders which stand in their sole name respectively at the date hereof.

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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