Silver and Woden - [2016] FamCA 120

FAMILY COURT OF AUSTRALIA

SILVER & WODEN

[2016] FamCA 120

FAMILY LAW – PROCESS AND PROCEDURE

APPLICANT:

Ms Silver

RESPONDENT:

Mr Woden

FILE NUMBER:

WOC

367

2013

DATE DELIVERED:

2 March 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

24 February 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Bailey Mullard Lawyers

THE RESPONDENT:

In Person

Orders

IT IS ORDERED

That pursuant to section 9MU(1)(a) of the Family Law Act1975 (Cth) (“the Act”) the Court orders the trustees of the husband’s (Mr Woden born …1951) superannuation accounts, BT Lifetime Super – Employer plan (D Pty Ltd)(Member number …) be restrained by injunction from making any splittable payment to the husband in respect of his interest in that account without the leave of the Court.
That pursuant to section 90MU(1)(b) of the Act the Court orders the trustees to notify the solicitors for the wife (being Bailey Mullard Lawyers Pty Limited) and the husband, within 28 days of the next occasion when a splittable payment becomes payable in respect of the husband’s interest.
That the operative time in respect of the flagging order is four working days from the date of a copy of this sealed order being served on the trustee of the fund.
That pursuant to section 114 of the Act the husband shall be restrained by injunction from dealing with his superannuation interest held by BT Lifetime Super (Member number …) including a transfer or claim on such funds without the leave of the Court.
That the wife’s costs of this application be reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 367 of 2013

Ms Silver

Applicant

And

Mr Woden

Respondent

REASONS FOR JUDGMENT

Property proceedings between Mr Woden (“the husband”) and Ms Silver (“the wife”) have been on foot since about October 2013.
On 12 August 2015, the parties were ordered to file all affidavits upon which they sought to rely by 4pm on 4 December 2015. Also on that day the Court noted that the parties had agreed that the property which was owned by the husband at Town H, Queensland, had a value of $800,000 and orders were made for the valuation of shares in E Pty Ltd (“E”) owned by the husband. In order to value the shares in E, it was necessary to value the shares in another company owned by E and that company’s underlying real estate.
On 27 March 2015, the wife filed an application for a flagging order in relation to the husband’s superannuation entitlement.
When the matter came before the Court for call-over on 18 January 2016, the matter was not ready for trial as the husband had not filed his trial affidavit. The wife sought to agitate her Application in a Case in relation to…

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 Silver and Woden

Details

AGLC: Silver and Woden [2016] FamCA 120
Case: [2016] FamCA 120
Decision Date: 2 March 2016

CaseChat Overview and Summary

In the matter of *Silver and Woden*, heard before Rees J, the wife sought orders restraining the trustees of the husband's superannuation account from making splittable payments to the husband and from dealing with his superannuation interest without the leave of the Court. The dispute concerned the protection of the husband's superannuation interests pending further proceedings.

The primary legal issues before the Court were whether to grant an injunction pursuant to section 90MU(1)(a) of the *Family Law Act 1975* (Cth) to restrain the trustees of the husband's superannuation fund from making splittable payments to the husband, and whether to grant an injunction pursuant to section 114 of the Act restraining the husband from dealing with his superannuation interest. The Court was also required to determine the notification obligations of the trustees and the operative time for any flagging order.

Rees J ordered that the trustees of the husband's superannuation account, BT Lifetime Super – Employer plan, be restrained by injunction from making any splittable payment to the husband in respect of his interest in that account without the leave of the Court, pursuant to section 90MU(1)(a) of the Act. Furthermore, the trustees were ordered to notify the solicitors for both parties within 28 days of the next occasion when a splittable payment becomes payable. The Court also ordered, pursuant to section 114 of the Act, that the husband be restrained by injunction from dealing with his superannuation interest held by BT Lifetime Super, including any transfer or claim on such funds, without the leave of the Court. The operative time for the flagging order was set at four working days from the date of service of the sealed order on the trustee. The wife's costs of the application were reserved.

Orders

Orders of the court

IT IS ORDERED

That pursuant to section 9MU(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) the Court orders the trustees of the husband’s (Mr Woden born …1951) superannuation accounts, BT Lifetime Super – Employer plan (D Pty Ltd)(Member number …) be restrained by injunction from making any splittable payment to the husband in respect of his interest in that account without the leave of the Court.

That pursuant to section 90MU(1)(b) of the Act the Court orders the trustees to notify the solicitors for the wife (being Bailey Mullard Lawyers Pty Limited) and the husband, within 28 days of the next occasion when a splittable payment becomes payable in respect of the husband’s interest.

That the operative time in respect of the flagging order is four working days from the date of a copy of this sealed order being served on the trustee of the fund.

That pursuant to section 114 of the Act the husband shall be restrained by injunction from dealing with his superannuation interest held by BT Lifetime Super (Member number …) including a transfer or claim on such funds without the leave of the Court.

That the wife’s costs of this application be reserved.

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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