Skipper and Slevin - [2017] FCCA 120

FEDERAL CIRCUIT COURT OF AUSTRALIA

SKIPPER & SLEVIN

[2017] FCCA 120

Catchwords:
FAMILY LAW – Property – de facto relationship of approximately ten years – modest asset pool – division of proceeds of sale of property – issue of de facto wife’s redundancy payment – contributions – whether further s.90SF(3) adjustments should be made.

Legislation:

Family Law Act 1975, ss.90SF, 90SM, 90SS, 90ST

Cases cited:

Bevan v Bevan [2013] FamCAFC 116; (2013) FLC 93-545
Bevan & Bevan (No.2) [2014] FamCAFC 19; (2014) FLC 93-572
C & C [2005] FamCA 429; (2005) 33 Fam LR 414; (2005) FLC 93-220
Hickey v Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; (2003) FLC 93-143
In the Marriage of Crapp and Crapp (No.2) (1979) 5 Fam LR 47; (1979) FLC 90-615
Norbis & Norbis (1986) 161 CLR 513; (1986) 10 Fam LR 819; [1986] FLC 91-712
Rockman & Rockman [2014] FCCA 1966
Stanford v Stanford [2012] HCA 52

Applicant:

MR SKIPPER

Respondent:

MS SLEVIN

File Number:

WOC 1119 of 2015

Judgment of:

Judge Monahan

Hearing dates:

17 and 18 November 2016

Date of Last Submission:

18 November 2016

Delivered at:

Sydney

Delivered on:

30 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Lo Schiavo

Solicitors for the Applicant:

Johnston Tobin

Solicitors for the Respondent:

Ms Ferguson of McNamara & Associates

ORDERS

THE COURT ORDERS THAT:

Subject to paragraph 2 herein, the parties cause the net proceeds of the sale of Property A, currently held in the controlled monies account of Johnston Tobin Solicitors, to be divided between the parties $74,041.23 to the Applicant, Mr Skipper, and $42,046.16 to the Respondent, Ms Slevin (“the Respondent’s share”), with any remaining balance to be divided 60% to the Applicant and 40% to the Respondent.
Simultaneously with paragraph 1 herein, the Respondent cause the sum of $2,434.00 to be paid to the Applicant from the Respondent’s share.
In accordance with Section 90MT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of Ms Slevin from her interest in (omitted) Super, Mr Skipper be entitled to be paid by the trustee of (omitted) Super, the amount calculated in accordance with Part 6 of the Family Law Superannuation Regulation 2001, using a base amount of $11,500.00 and that there be a corresponding reduction in the entitlement Ms Slevin would have but for this order.
Having been accorded procedural fairness in relation to the making of this Order, this order binds the Trustee of (omitted) Super.
The operative time of paragraph 3 herein is four (4) business days after the service of a certified copy of the original sealed Final Orders on the Trustee.
Paragraphs 3 to 5 herein be stayed.
Unless otherwise specified in these Orders:
(a)each party be solely entitled to all chattels, goods, motor vehicles, furniture, furnishings and any other property in the possession of such party as at this date;

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 Skipper and Slevin

Details

AGLC: Skipper and Slevin [2017] FCCA 120
Case: [2017] FCCA 120
Decision Date: 30 March 2017

CaseChat Overview and Summary

This matter concerned an application by Mr Skipper (the Applicant) and Ms Slevin (the Respondent) for final orders in relation to property settlement. The dispute involved the division of net proceeds from the sale of a property and the splitting of superannuation entitlements.

The Court was required to determine the appropriate division of the net proceeds from the sale of Property A, and to make orders regarding the splitting of Ms Slevin's superannuation interests in accordance with Part 6 of the Family Law Superannuation Regulation 2001. The Court also needed to consider the procedural fairness afforded to the trustee of Ms Slevin's superannuation fund in relation to the proposed splitting order.

The Court ordered that the net proceeds of the sale of Property A be divided between the parties, with a specific amount to the Applicant and a lesser amount to the Respondent, and the remaining balance to be split 60% to the Applicant and 40% to the Respondent. A further sum was to be paid by the Respondent to the Applicant from her share. The Court also made orders for a superannuation splitting payment to the Applicant from the Respondent's superannuation interest, subject to procedural fairness being afforded to the trustee. This superannuation splitting order was stayed pending confirmation from the superannuation trustee that procedural fairness had been provided and that they did not object. The Court noted that procedural fairness had not yet been afforded to the trustee and that it would consider lifting the stay upon receipt of confirmation. All other extant applications were dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

Subject to paragraph 2 herein, the parties cause the net proceeds of the sale of Property A, currently held in the controlled monies account of Johnston Tobin Solicitors, to be divided between the parties $74,041.23 to the Applicant, Mr Skipper, and $42,046.16 to the Respondent, Ms Slevin (“the Respondent’s share”), with any remaining balance to be divided 60% to the Applicant and 40% to the Respondent.

Simultaneously with paragraph 1 herein, the Respondent cause the sum of $2,434.00 to be paid to the Applicant from the Respondent’s share.

In accordance with Section 90MT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of Ms Slevin from her interest in (omitted) Super, Mr Skipper be entitled to be paid by the trustee of (omitted) Super, the amount calculated in accordance with Part 6 of the Family Law Superannuation Regulation 2001, using a base amount of $11,500.00 and that there be a corresponding reduction in the entitlement Ms Slevin would have but for this order.

Having been accorded procedural fairness in relation to the making of this Order, this order binds the Trustee of (omitted) Super.

The operative time of paragraph 3 herein is four (4) business days after the service of a certified copy of the original sealed Final Orders on the Trustee.

Paragraphs 3 to 5 herein be stayed.

Unless otherwise specified in these Orders:

(a) each party be solely entitled to all chattels, goods, motor vehicles, furniture, furnishings and any other property in the possession of such party as at this date;

(b) each party be solely entitled to any moneys, shares and debentures which stand in such party’s name as at this date;

(c) each party be solely entitled to any superannuation benefits held in such party’s name and each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other; and

(d) each party be solely liable for and indemnify the other against any debt, loan or liability whatsoever held in such party’s name as at this date.

Each party do all such things including the signing of all documents to give effect to these Orders.

In the event that either party refuses or neglects to execute any deed or instrument that may be required to give effect to these Orders, the Registrar of the Court be appointed pursuant to s.106A of the Act to execute such deed or instrument in the name of such party or parties and do all acts necessary to give validity to the operation to the deed or instrument.

10.

In the event that either or both parties propose to seek their costs of these proceedings, they make, file and serve an Application in a Case within forty-two (42) days of this date.

AND THE COURT DIRECTS THAT:

11.

Within 7 days following receipt of these orders, the Applicant cause correspondence to be sent to (omitted) Super together with a sealed copy of these orders for the purposes of providing that superannuation fund with procedural fairness.

AND THE COURT FURTHER ORDERS THAT:

12.

The Applicant have leave to approach Chambers with relevant correspondence from (omitted) Super confirming that they have no objections to the superannuation splitting order and if so, seeking that the stay pursuant to paragraph 6 herein be lifted.

13.

Subject to paragraphs 10 and 12 herein, all extant applications before this Court be otherwise dismissed.

AND THE COURT NOTES THAT:

A. Paragraphs 3 to 5 herein reflect the superannuation splitting form of order sought by the Applicant.

B. Despite being raised by the Court during the hearing, there is no evidence that procedural fairness has been afforded to the relevant superannuation trustee.

C. Upon receipt of correspondence from (omitted) Super confirming that procedural fairness has been afforded and that they do not wish to be further heard in relation to the superannuation splitting order, the Court will consider in Chambers lifting the stay pursuant to paragraph 6 herein.

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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