Simpson & Simpson - [2014] FamCA 521

FAMILY COURT OF AUSTRALIA

SIMPSON & SIMPSON

[2014] FamCA 521

FAMILY LAW – PROPERTY – Agreement reached between the parties as to division of the non-superannuation matrimonial assets

FAMILY LAW – SUPERANNUATION – What entitlement does each party have to the other parties’ superannuation entitlements – Whether the superannuation entitlements were accrued during the marriage and what contributions did each party make to those funds if accrued during the marriage – Where the husband has a Public service invalidity defined benefit pension and a member contribution – Where the husband is retired from public service on medical grounds

Family Law Act 1975 (Cth) ss 72, 74, 75(2), 79, 90MT(2), 90MZD

Bevan & Bevan [2013] FamCAFC 116

Crawford & Crawford (2013) 48 Fam LR 539
Fane & Lemott [2013] FamCA 604
Semperton & Semperton (2012) 47 Fam LR 626

Stanford v Stanford (2012) 247 CLR 108

Trott & Trott (2006) FLC 93-263; DJ & AJ (2006) FLC 93-289
Wheeldon & Wheeldon [2011] FamCA 40

APPLICANT:

Ms Simpson

RESPONDENT:

Mr Simpson

FILE NUMBER:

PAC

4480

2013

DATE DELIVERED:

16 July 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

20 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Levet

SOLICITOR FOR THE RESPONDENT:

Sarah Bevan Family Lawyers

Orders

BY CONSENT IT IS ORDERED THAT:

That the wife and the husband’s litigation guardian shall forthwith do all things and give all instructions as are necessary to cause the balance of proceeds of sale held on trust for the husband and the wife to be applied in the following priority:-
1.1In payment of the sum of $25,000 to Ms B, the wife’s grandmother, in discharge of her loan;
1.2In payment of the sum of $18,000 to Mr C, the wife’s father, in discharge of his loan;
1.3In payment of the balance to the wife.
That save and except as to any superannuation and any disability benefit entitlements, each party shall retain as against the other all property in their respective possession or control as at the date of these Orders.

THE COURT FURTHER ORDERS THAT:

That in accordance with section 90MT(1)(b) of the Family Law Act 1975 (Cth) (“the Act”), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of the Respondent husband from his interest, including his interest in the form of the pension benefit and his interest in the form of a preserved member benefit, in The Public Service Superannuation and Benefits Scheme, the Applicant wife is entitled to be paid by the Trustee of The Public Service Superannuation and Benefits Scheme eighteen (18) per cent of the splittable payment and there shall be a corresponding reduction in the amount the Respondent husband would be entitled to receive but for these Orders.
That the Trustee of The Public Service Superannuation and Benefits Scheme do all such acts and things and sign all such…

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 Simpson & Simpson

Details

AGLC: Simpson & Simpson [2014] FamCA 521
Case: [2014] FamCA 521
Decision Date: 16 July 2014

CaseChat Overview and Summary

In the matter of *Simpson & Simpson*, Foster J considered a dispute between a wife and a husband concerning the division of matrimonial assets, specifically addressing both non-superannuation property and the husband's superannuation entitlements. The husband had retired from public service on medical grounds and possessed a Public Service invalidity defined benefit pension along with a member contribution.

The primary legal issues before the court were the extent of each party's entitlement to the husband's superannuation, particularly in light of contributions made during the marriage, and the division of other matrimonial assets. The court was also required to determine the husband's application for spouse maintenance.

By consent, the court ordered the distribution of proceeds from the sale of property, with specific payments to the wife's grandmother and father for loans, and the balance to the wife. Crucially, each party was to retain their other property, save for superannuation and disability benefit entitlements. In accordance with section 90MT(1)(b) of the *Family Law Act 1975* (Cth), the wife was awarded 18 per cent of any "splittable payment" from the husband's interest in The Public Service Superannuation and Benefits Scheme, including his pension and preserved member benefit. The Trustee of the Scheme was directed to calculate and pay this entitlement. The husband's application for spouse maintenance was dismissed, as were all other outstanding applications.

Orders

Orders of the court

BY CONSENT IT IS ORDERED THAT:

That the wife and the husband’s litigation guardian shall forthwith do all things and give all instructions as are necessary to cause the balance of proceeds of sale held on trust for the husband and the wife to be applied in the following priority:-

1.1 In payment of the sum of $25,000 to Ms B, the wife’s grandmother, in discharge of her loan;

1.2 In payment of the sum of $18,000 to Mr C, the wife’s father, in discharge of his loan;

1.3 In payment of the balance to the wife.

That save and except as to any superannuation and any disability benefit entitlements, each party shall retain as against the other all property in their respective possession or control as at the date of these Orders.

THE COURT FURTHER ORDERS THAT:

That in accordance with section 90MT(1)(b) of the Family Law Act 1975 (Cth) (“the Act”), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of the Respondent husband from his interest, including his interest in the form of the pension benefit and his interest in the form of a preserved member benefit, in The Public Service Superannuation and Benefits Scheme, the Applicant wife is entitled to be paid by the Trustee of The Public Service Superannuation and Benefits Scheme eighteen (18) per cent of the splittable payment and there shall be a corresponding reduction in the amount the Respondent husband would be entitled to receive but for these Orders.

That the Trustee of The Public Service Superannuation and Benefits Scheme do all such acts and things and sign all such documents as may be necessary to:

(a) Calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation Regulations) 2001 (Cth) the entitlement awarded to the Applicant wife in the immediately preceding clause of this Order; and

(b) Pay the entitlement whenever the trustee makes a splittable payment from the Respondent husband’s interest in The Public Service Superannuation and Benefits Scheme.

That these Orders have effect from the operative time and the operative time is the fourth business day following service of a copy of the sealed Orders on the Trustee of The Public Service Superannuation and Benefits Scheme.

That the parties do all such things and sign all such documents as may be necessary to give effect to these Orders.

That the husband’s application for spouse maintenance be dismissed.

All outstanding 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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