Schmidt & Schmidt - [2009] FamCA 1386

FAMILY COURT OF AUSTRALIA

SCHMIDT & SCHMIDT

[2009] FamCA 1386

FAMILY LAW – PROPERTY – Alteration of property interests – Superannuation – Two different categories of superannuation interest – Hurt on duty pension – Contributions – Just and equitable division of assets

Family Law Act 1975 (Cth)

APPLICANT:

Mr Schmidt

RESPONDENT:

Ms Schmidt

FILE NUMBER:

NCC

1180

2007

DATE DELIVERED:

2 April 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

15 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Kekeff & Associates

COUNSEL FOR THE RESPONDENT:

Mr Cummings

SOLICITOR FOR THE RESPONDENT:

Boyd Olsen Lawyers

Orders

An order is made pursuant to s.79 in accordance with paragraphs 2 to 8 below.
Within 28 days from the date of making these orders, the husband shall pay to the wife the sum of $324,384.00.
Contemporaneous with the payment referred to in paragraph 2, the wife shall do all acts and things and sign all necessary documents, instruments and writings so as to cause to transfer to the husband all of her right, title and interest in the former matrimonial home property situate at and known as V property in the State of New South Wales being Lot 1 DP …; Lot 3 DP … and Lot 190 DP … (“the V property”).
In the event that the husband fails to make payment to the wife in accordance with paragraph 2 each party will do all things and sign all necessary documents to effect a sale of the V property by private treaty at a price to be agreed upon by the parties and failing agreement to be determined by a nominee of the Real Estate Institute of New South Wales for the time being and the net proceeds of sale of the V property be distributed as follows:-
4.1.Payment of the costs of sale;
4.2.Payment to the wife of 67.6% of the proceeds to be calculated before the discharge of any encumbrance;
4.3.Discharge of any encumbrance;
4.4.Payment to the husband of the balance.
5.1 In this clause:
category 1 splittable payment is a payment made by the SAS Trustee Corporation (“the trustee”) prior to the Husband reaching the age of sixty (60); and
category 2 splittable payment is any other payment made by the trustee to the Husband which is not a category 1 splittable payment.
5.2In accordance with paragraph 90MT(1)(b) of the Family Law Act 1975:
5.2.1the wife is entitled to be paid the specified percentage, being 10%, of the category 1 splittable payment to be made from the husband’s superannuation interest in the SAS Trustee Corporation Pooled Fund and payable in accordance with the Police Regulation (Superannuation) Act 1906 (NSW); and
5.2.2the husband’s entitlement to that payment from the SAS Trustee Corporation Pooled Fund is correspondingly reduced.
5.3The trustee shall do all such acts and things and have signed all such documents as may be necessary to:
5.3.1calculate, in accordance with the requirements of the Family Law Act

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 & Schmidt

Details

AGLC: Schmidt & Schmidt [2009] FamCA 1386
Case: [2009] FamCA 1386
Decision Date: 2 April 2009

CaseChat Overview and Summary

The case of *Schmidt & Schmidt* concerned a dispute between a husband and wife regarding the division of their property. The matter came before Watts J in the Family Court of Australia.

The court was required to determine the appropriate orders for the division of the former matrimonial home, known as the V property, and the husband's superannuation interests in the SAS Trustee Corporation Pooled Fund. The court also needed to address the distribution of other assets and liabilities between the parties.

Watts J made orders pursuant to section 79 of the *Family Law Act 1975* (Cth). The orders provided for the husband to pay a sum of money to the wife, and contemporaneously, the wife was to transfer her interest in the V property to the husband. In the alternative, if the husband failed to make the payment, the V property was to be sold, with the net proceeds distributed in a specific manner, including a 67.6% share to the wife before the discharge of any encumbrance. The court also made detailed orders concerning the husband's superannuation, entitling the wife to 10% of "category 1 splittable payments" (made before the husband turned 60) and 35% of "category 2 splittable payments" from the SAS Trustee Corporation Pooled Fund, with corresponding reductions to the husband's entitlement. The court dispensed with formal notice requirements to the trustee and restrained the husband from commuting his pension without the wife's consent. Each party was declared solely entitled to other property in their possession, with specific provisions for bank accounts, insurance policies, and motor vehicles. Each party was to be solely liable for and indemnify the other against liabilities encumbering property they received. The Registrar of the Court was appointed to execute any necessary documents if a party refused to do so.

Orders

Orders of the court

An order is made pursuant to s.79 in accordance with paragraphs 2 to 8 below.

Within 28 days from the date of making these orders, the husband shall pay to the wife the sum of $324,384.00.

Contemporaneous with the payment referred to in paragraph 2, the wife shall do all acts and things and sign all necessary documents, instruments and writings so as to cause to transfer to the husband all of her right, title and interest in the former matrimonial home property situate at and known as V property in the State of New South Wales being Lot 1 DP …; Lot 3 DP … and Lot 190 DP … (“the V property”).

In the event that the husband fails to make payment to the wife in accordance with paragraph 2 each party will do all things and sign all necessary documents to effect a sale of the V property by private treaty at a price to be agreed upon by the parties and failing agreement to be determined by a nominee of the Real Estate Institute of New South Wales for the time being and the net proceeds of sale of the V property be distributed as follows:-

4.1. Payment of the costs of sale;

4.2. Payment to the wife of 67.6% of the proceeds to be calculated before the discharge of any encumbrance;

4.3. Discharge of any encumbrance;

4.4. Payment to the husband of the balance.

5.1 In this clause:

category 1 splittable payment is a payment made by the SAS Trustee Corporation (“the trustee”) prior to the Husband reaching the age of sixty (60); and

category 2 splittable payment is any other payment made by the trustee to the Husband which is not a category 1 splittable payment.

5.2 In accordance with paragraph 90MT(1)(b) of the Family Law Act 1975:

5.2.1 the wife is entitled to be paid the specified percentage, being 10%, of the category 1 splittable payment to be made from the husband’s superannuation interest in the SAS Trustee Corporation Pooled Fund and payable in accordance with the Police Regulation (Superannuation) Act 1906 (NSW); and

5.2.2 the husband’s entitlement to that payment from the SAS Trustee Corporation Pooled Fund is correspondingly reduced.

5.3 The trustee shall do all such acts and things and have signed all such documents as may be necessary to:

5.3.1 calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife in paragraph 6.2 of this clause; and

5.3.2 pay the entitlement whenever the trustee makes the category 1 splittable payment out of the husband’s interest in the SAS Trustee Corporation Pooled Fund.

5.4 In accordance with paragraph 90MT(1)(b) of the Family Law Act 1975:

5.4.1 the wife is entitled to be paid the specified percentage, being 35%, of the category 2 splittable payment to be made from the husband’s superannuation interest in the SAS Trustee Corporation Pooled Fund and payable in accordance with the Police Regulation (Superannuation) Act 1906 (NSW); and

5.4.2 the husband’s entitlement to that payment from the SAS Trustee Corporation Pooled Fund is correspondingly reduced.

5.5 The trustee shall do all such acts and things and have signed all such documents as may be necessary to:

5.5.1 calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife in paragraph 6.4 of this clause; and

5.5.2 pay the entitlement whenever the trustee makes the category 2 splittable payment out of the husband’s interest in the SAS Trustee Corporation Pooled Fund.

5.6 This clause has effect from the operative time and the operative time is the date of this order.

5.7 Any rule that has not been formally complied with relating to giving notice to the trustees of the SAS Trustee Corporation Pooled Fund, as to the form of the orders sought, is dispensed with.

Unless the wife gives her written consent to do so, the husband be restrained from giving notice to the SAS Trustee Corporation pursuant to s 14K of the Police Regulation (Superannuation) Act 1906 to commute the pension payable to him from time to time to a lump sum.

The wife be declared to be the sole beneficial owner of the superannuation entitlements in which she is named as the superannuant.

Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of the making of these orders, and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, any motor vehicles are deemed to be in the possession of the registered owner thereof and specifically the husband shall be entitled to those items to which the distribution table contained in the reasons for judgment dated this day indicates he is entitled and the wife shall be entitled to those items to which the distribution table contained in the reasons for judgment dated this day indicates she is entitled.

Except as otherwise provided in these orders, each party shall be declared to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

10.

In the event either party refuses or neglects to execute any deed or instrument, 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.

11.

Either party have liberty to restore on seven days notice in respect of the implementation of these orders.

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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