SINGERSON & JOANS
[2015] FamCAFC 172
•8 September 2015
FAMILY COURT OF AUSTRALIA
| SINGERSON & JOANS | [2015] FamCAFC 172 |
| FAMILY LAW – APPEAL AND CROSS-APPEAL – Where upon the Full Court allowing the appeal and the cross-appeal the Full Court re-exercised the discretion – Where further submissions were sought regarding adjustment to superannuation interests – Where the submissions received also addressed a typographical error in the previous orders and reasons for judgment – Where the Full Court re-issued the previous orders and reasons for judgment as amended pursuant to r 17.02 – Where the Full Court also made orders for the adjustment of superannuation interests. |
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth), r 17.02
| APPELLANT/CROSS-RESPONDENT: | Mr Singerson |
| RESPONDENT/CROSS-APPELLANT: | Ms Joans |
| FILE NUMBER: | PTW | 726 | of | 2011 |
| APPEAL NUMBER: | WA | 9 | of | 2013 |
| DATE DELIVERED: | 8 September 2015 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | By way of written submissions |
| JUDGMENT OF: | Bryant CJ, Ainslie-Wallace & Crisford JJ |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 14 March 2013 |
| LOWER COURT MNC: | [2013] FCWA 36 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT/CROSS-RESPONDENT: | Mr Hooper SC |
| SOLICITOR FOR THE APPELLANT/CROSS-RESPONDENT: | Lewis, Blyth & Hooper | |
| COUNSEL FOR THE RESPONDENT/CROSS-APPELLANT: | Ms Kerr | |
| SOLICITOR FOR THE RESPONDENT/CROSS-APPELLANT: | DCH Legal Group |
Orders
Pursuant to r 17.02 of the Family Law Rules 2004 (Cth) (“the Rules”) order 4 of the orders made on 10 December 2014 be amended as follows:
(4) In lieu thereof:
25 (f) as to
$516,486$513,861 to the applicant wife; and(g) the remainder to the respondent husband.
Pursuant to r 17.02 of the Rules, the judgment delivered 10 December 2014 be amended as follows:
(a) At paragraph 91, the value of “Interest in [the C Business]” be amended to 1,137,752;
(b) At paragraph 91, the value of “Subtotal - Wife” be amended to 3,037,987;
(c) At paragraph 91, the value of “Matrimonial Property” be amended to 4,858,470;
(d) At paragraph 91, the value of “Total property” be amended to 7,477,575;
(e) At paragraph 101, the last sentence be amended as follows:
The net result is that she will retain
$3,549,473$3,551,848 and the husband with 52.5 per cent will retain$3,923,102$3,925,727.(f) At paragraph 102, the first sentence be amended as follows:
As the wife already has assets of
$3,032,987$3,037,987 she is entitled to a further sum of$516,486$513,861.Within 21 days the husband pay to the wife the sum of $122,078.
In accordance with s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $100,000 is allocated to the husband out of the wife’s interest in the [ABC] Superannuation Fund (“the Fund”);
In accordance with s 90MT(1)(a) of the Act:
(a) the husband is entitled to be paid, using the base amount allocated in paragraph 4, the amount calculated in accordance with Pt 6 of Family Law (Superannuation) Regulations 2001 (Cth);
(b) the entitlement of the wife in the Fund (or the entitlement of such other person who becomes entitled to receive a payment of the wife’s superannuation interest) is correspondingly reduced by force of this order; and
(c) the wife’s interest in her member account in the Fund, be correspondingly reduced.
The parties take all steps necessary and execute all documents necessary to:
(a) calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth), the splittable payment to the husband as set out in paragraphs 4 and 5 above; and
(b) pay the entitlement to the husband whenever the trustees make a splittable payment out of the wife’s interest in the Fund.
Paragraphs 4, 5 and 6 have effect from the operative date and the operative date is 30 June 2013.
In the event that the superannuation split to the husband can be rolled over into a separate account to the husband, the parties take all steps necessary and execute all documents necessary to facilitate and implement that rollover.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Singerson & Joans has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 9 of 2013
File Number: PTW 726 of 2011
| Mr Singerson |
Appellant/Cross-Respondent
And
| Ms Joans |
Respondent/Cross-Appellant
REASONS FOR JUDGMENT
On 10 December 2014 we made orders allowing both the appeal and the cross-appeal in this matter.
Relevantly for present purposes we made orders that from the parties’ property the respondent wife was to receive $516,486 and the appellant husband was to receive the remainder. In practical terms the wife received an extra 1.5 per cent of the parties’ property.
At the request of each party at the hearing of the appeal we made a further order as follows:
5.The husband file written submissions as to whether there should be an adjustment to the wife’s superannuation account in the [ABC] Superannuation Fund and if so in what amount, with a commensurate adjustment to the amount the wife to receive pursuant to order 25(f), by close of business 21 days after the publication of these reasons. The wife provide written submissions in response by close of business 21 days thereafter.
Despite this order the wife filed submissions on 23 January 2015 and the husband responded to these submissions on 16 March 2015. We will firstly deal with a minor matter of procedure.
THE “SLIP RULE”
The use of r 17.02 of the Family Law Rules 2004 (Cth) allows the court to correct a clerical mistake or error arising from an accidental slip or omission. The notes to r 17.02 observe that “an amendment of an order may be made under this rule only if it is an error obvious when reading the order”. Here, the error is one of transposition of figures.
In her submissions of 23 January 2015 the wife identified a typographical error at paragraph 19 of our reasons for judgment delivered on 10 December 2014 such that the interest in the business asset, the C Pharmacy, was identified as $1,132,752 instead of $1,137,752.
The husband agreed that a minor transposition had been made. However, having identified the error both parties compounded its effect with mathematical errors of their own. We have corrected those errors.
We do not accept that the error of this Court, as suggested by the wife, is “de minimis” in its impact. The use of the maxim de minimis non curat lex is inappropriate in the financial situation here. The mathematical error is one clearly calling for the application of r 17.02 and we will adjust the figures accordingly.
The outcome of this correction is that our orders will now read that the wife is to receive $513,861 of the parties’ property and the remainder will go to the husband. We will reissue our orders and reasons for judgment of 10 December 2014 accordingly.
SUPERANNUATION ISSUE
We now turn to the subject matter of the written submissions filed pursuant to Order 5.
For context to the applicability, or otherwise, of a superannuation split here, it is useful to revisit the judgment at first instance.
The learned trial judge dealt with this issue as follows:
Giving Effect to those Determinations, Justice and Equity Considerations
[161]Under my approach to the property pool, the wife retains the following property:
Assets
$555,598
Interest in [C Business]
$1,137,752
Interest in [L Business]
$1,350,527
Total
$3,043,877
[162]In order to give effect to her full entitlement, the wife would therefore require an additional cash settlement of $364,000.
[163] The husband retains the following:
Assets
$377,326
Estate
$2,619,105
Total
$2,996,431
[164]The husband would therefore require a cash settlement of some $1,021,000 to give effect to my determination.
[165]The net proceeds of sale of the [W Street] property are estimated to be of the order of $1,384,000 which precisely covers the cash payments referred to above due to the parties.
[166]I was to be informed during the course of submissions that the wife has a need for as much capital as possible to enable her to purchase a home for herself and the children and to limit the borrowings necessary for that purpose.
[167]Mr Hooper, counsel for the husband, did not resist the notion that the husband might take a small superannuation split to optimise the cash component of the wife’s settlement and to limit her borrowings. I note that the husband has the use of a home and he will have access to substantial cash reserves even with a modest superannuation adjustment.
[168]In the circumstances, I am satisfied that it is appropriate to make an order which secures a superannuation split of some $100,000 of the wife's superannuation to the husband. After that adjustment, the wife would therefore need to receive some $474,000 from the proceeds of sale of [W Street]. In addition, she will receive some $150,000 from the earlier distributions from that source, although I have no doubt she has some debts to meet.
To put this into effect the learned trial judge made these orders:
24.The [wife] take all steps necessary and execute all documents necessary to effect a distribution of $100,000 of the [ABC] Superannuation Fund, presently in her name, to the [husband].
…
30.The parties, in their capacities as trustees of the fund, do all things necessary to rollover the [husband’s] member balance in the fund into a complying superannuation fund of his choosing.
The learned trial judge’s intention was that, on the figures before him, the wife would receive $364,000 cash from the estimated proceeds of sale of W Street and a further $100,000 from those proceeds which would otherwise have gone to the husband. In lieu the husband would receive that portion of his entitlement in the form of a superannuation split of $100,000 from the wife’s interest in the ABC Superannuation Fund. The remainder of his entitlement would come from the proceeds of sale of W Street.
We were advised at the hearing of the appeal the W Street property sold for more than originally anticipated at $1,446,419.
This amount was distributed by the parties, in accordance with the decision of the learned trial judge, as to 66 per cent to the husband and 34 per cent to the wife. The superannuation split as anticipated by the learned trial judge was not effected between the disbursement of the proceeds of sale of the property and the appeal.
Both parties accepted the superannuation splitting orders made by the learned trial judge were not in accordance with the legislative requirements and his proposed adjustment could not be put into effect.
The re-exercise of our discretion was that the wife should receive 47.5 per cent and the husband 52.5 per cent. The net effect is that the husband is to pay the wife a further $22,078.
APPEAL OF HIS HONOUR’S ORDERS
In his amended notice of appeal the husband addressed the superannuation adjustment made by the learned trial judge in paragraph 6 as follows:
The orders made by the Court in respect of superannuation adjustment at para 24 are not enforceable and do not effectively promote the determination of the Court (which is not challenged by the parties) that the superannuation interests of the parties in their self-managed superannuation fund should be adjusted to closer to equality by an increase in the husband’s member entitlements of $100,000 and a corresponding decrease in the wife’s member entitlements.
The husband sought amended orders in paragraph 2 as follows:
That paragraph 24 of the orders made by His Honour Acting Judge Jordan on 14 March 2013 (“the final orders”) be set aside and in lieu thereof the following orders be made.
“24A.An order pursuant to Section 90MT of the Family Law Act 1975 that the member account of the husband in the [ABC] Superannuation Fund (“the Fund”) be increased by $100,000 and there be a corresponding reduction in the member account of the wife in the Fund.
24B.The parties in their capacity as the trustees and the members of the said Fund do promptly perform such acts and sign such documents as necessary to reflect the above mentioned adjustment to member accounts in the Fund.
24C.The operative date in respect of the above mentioned adjustment of member accounts be 30 June 2013.”
The cross-appellant made no reference to the superannuation in her amended notice of cross-appeal filed 12 August 2013.
At the hearing of the appeal on 31 March 2014 the appellant handed up to us a written response to the summary of argument of the cross-appellant. The appellant says:
13.However, if the Full Court is minded to accept propositions put by the Cross-Appellant as to overall division with the Cross-Appellant receiving 50% or more of the overall asset pool, then the Appellant contends that a superannuation adjustment is not necessary or appropriate.
14.The Appellant notes that much of the property interest that he has via his father’s estate are in illiquid form and do not produce much of a current income such as the redevelopment land prospects which constitute a significant portion of the estate interest. …
In her summary of argument the cross-appellant indicated she did not oppose that the superannuation split would be made on the operative date of 30 June 2013. Her counsel accepted that if any procedural inadequacies required amendment to the order of the learned trial judge then they should be made.
PRESENT POSITION
The cross-appellant continues to propose the Full Court make orders that there be a superannuation splitting order from the wife to the husband in the amount of $100,000; that the husband pay the wife the equivalent of the superannuation splitting order; and the balance as a result of our judgment in the amount of $22,078. She wants this paid within 21 days.
The husband resists any superannuation order being made on the basis that the cross-appellant received a more favourable award from this Court than she had received from the trial judge and thus no superannuation splitting order should be made. He confirms that much of the property of the appellant is in an illiquid form.
We noted in our appeal decision:
103.Generally speaking, whilst we accept the making of an adjustment of such a minor percentage militates against appellate intervention we note that in real terms the difference between our assessment of 47.5 per cent to the wife rather than the judgment result of 46 per cent translates to an extra $111,375 on the figures before his Honour and will also have an impact on the amount the wife will receive from the increased net proceeds of the [W Street] property. In the circumstances of this case we consider this a significant amount. We are satisfied such division is just and equitable in relation to the value of the property to be retained by each party and the nature of the assets.
The difference in the result on the figures before this Court is far less at $22,078. This arises, in the main, from the learned trial judge rounding up some of the values presented at trial in a somewhat robust fashion; for example:
Total matrimonial assets
4,805,666
Adopt
4,806,000
Husband’s interest in the estate
2,619,105
Adopt
2,620,000
Given the additional amount, albeit small, the wife is to receive as a result of the outcome of the appeal, and which is less than the 50 per cent nominated by the husband as the ceiling to any such order, we consider the superannuation splitting order in the amended form to be appropriate. We agree that the operative date should be 30 June 2013.
I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ainslie-Wallace & Crisford JJ)
Associate:
Date: 8 September 2015
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