Tanberg & Balsano

Case [2024] FedCFamC2F 256


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Tanberg & Balsano [2024] FedCFamC2F 256

File number(s): PAC 5881 of 2022
Judgment of: JUDGE MURDOCH
Date of judgment: 7 March 2024
Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Where the parties cohabited for 38 years - Where both parties were medically discharged during their employment with the public service and respectively received a pension – Where the husband commuted his pension to a one-off lump sum payment during the relationship – Where the wife received her pension as an income stream and continues to do so – Where it is agreed that a superannuation splitting order should be made from the wife’s pension to the husband – Where notwithstanding the valuation of the wife’s pension arrived at by applying the provisions of Family Law Act and Regulations regard must be had to the nature, form and characteristics of such superannuation interest - Where the Husband can elect to receive a splitting order in his favour as a tax free cash lump sum and the time for the wife to be able, as of right, to commute her pension has passed - Where the requirement to achieve justice and equity permeates the entire s 79 process - Where the wife’s pension ought to be dealt with in a separate pool of property – Finding of equal contributions to both pools of property – Finding that no adjustment ought to be made in respect of either party – Finding that to effect a percentage adjustment of a figure calculated by the Regulations is an artificial exercise and is neither just or equitable - Orders made for an equal distribution of the substantive property pool – Orders made for a lump sum payment to be made to the husband out of the wife’s pension.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 75(2), 79, 79(4)(d) - (g), 90XT(2)

Family Law (Superannuation) Regulations2001 (Cth)

Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003.

Cases cited:

Bulow & Bulow [2019] FamCAFC 3

C & C [2005] FamCA 429

Fields & Smith [2015] FamCAFC 57

Horrigan & Horrigan [2020] FamCAFC 25

Kowaliw and Kowaliw [1981] FamCA 70

Norbis v Norbis [1986] HCA 17

Schmidt & Schmidt [2009] FamCA 1386

Stanford & Stanford [2012] HCA 52

T & T [2006] FamCA 207

Welch & Abney [2016] FamCAFC 271

Division: Division 2 Family Law
Number of paragraphs: 180
Date of hearing: 5 – 6 February 2024
Place: Sydney
Counsel for the Applicant:  Mr Levick
Solicitor for the Applicant:  Brydens Lawyers
Counsel for the Respondent:  Mr Livingstone
Solicitor for the Respondent:  ALA Law

ORDERS

PAC 5881 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS TANBERG

Applicant

AND:

MR BALSANO

Respondent

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

7 MARCH 2024

THE COURT ORDERS THAT:

1.Within 7 days of the date of these Orders both parties shall sign all documents and do all things…

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Tanberg & Balsano [2024] FedCFamC2F 256
Case
[2024] FedCFamC2F 256
Decision Date

CaseChat Overview and Summary

Ms Tanberg and Mr Balsano, who cohabited for 38 years, presented to the Federal Circuit and Family Court of Australia for a property settlement. Both parties were medically discharged from public service employment, receiving pensions; Mr Balsano opted for a lump sum, while Ms Tanberg continues with an income stream. The court needed to determine how to equitably distribute their assets, including handling the superannuation interests. It was agreed that a superannuation splitting order should be made from Ms Tanberg’s pension to Mr Balsano. The court had to consider the nature and characteristics of the superannuation interest while also ensuring justice and equity in the division of property. Given the husband's ability to receive his superannuation splitting order as a tax-free lump sum and the wife's inability to commute her pension, the court found an equal distribution of the substantive property pool appropriate. It also mandated a lump sum payment to Mr Balsano from Ms Tanberg's pension.

The court ruled that the proceeds from the sale of their former matrimonial home should be equally split between the parties. It ordered a superannuation splitting from Ms Tanberg’s pension to Mr Balsano, specifying the amounts and conditions for the payments. The court emphasised that the nature of the wife’s pension required separate consideration in property division. The court found that neither party required an adjustment to their shares of the property pool and that a percentage adjustment of calculated figures would be artificial and inequitable. The orders concluded with an equal division of the substantive property pool and specific lump sum payments from Ms Tanberg's pension to Mr Balsano.

Orders

Orders of the court

PAC 5881 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS TANBERG

Applicant

AND:

MR BALSANO

Respondent

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

7 MARCH 2024

THE COURT ORDERS THAT:

1. Within 7 days of the date of these Orders both parties shall sign all documents and do all things necessary to cause the balance of the proceeds of sale of the property situated at and known as B Street, Suburb C in the State of New South Wales ("the former matrimonial home") held in the trust account of Amanda Little & Associates as follows:

(a) $428,308 to the Wife; and

(b) $406,405 to the Husband.

2. There be a superannuation splitting Order affecting the interest of the Applicant Wife, Ms Tanberg (also known as Ms Balsano), ("the Wife") in the Super Fund 1 ("the Fund") Member Number … in the following terms:

(a) A base amount of $200,000 is allocated, as required by section 90XT(l)(a) of the Family Law Act 1975 (Cth) ("the Act") to the Husband, Mr Balsano (''the Husband") out of the Wife's interest in the Super Fund 1.

(b) In accordance with section 90XT(I)(a) of the Family Law Act 1975:

(i) the Husband is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and

(ii) the Wife's entitlement to payments out of their interest in the Super Fund 1 and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.

(c) The trustee of the Super Fund 1 ("the Trustee") shall do all such acts and things and sign all such documents as may be necessary to:

(i) Calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Husband by Order 2(a); and

(ii) Pay the entitlement whenever the Trustee makes a splittable payment out of the Wife's interest in the Super Fund 1.

(d) These Orders have effect from the operative time and the operative time is the fourth business day after a copy of the sealed Orders is served on the Trustee.

(e) This order binds the Trustee of the Super Fund 1.

3. There be a superannuation splitting Order affecting the interest of the Applicant Wife, Ms Tanberg (also known as Ms Balsano) ("the Wife") in the Super Fund 2 ("the Fund") Member Number … in the following terms:

(a) A base amount of $135,453.50 is allocated, as required by section 90XT (4) of the Family Law Act 1975 (Cth) ("the Act") to Mr Balsano ("the Husband") out of the Wife's interest in the Fund.

(b) In accordance with section 90XT(l)(a) of the Family Law Act 1975 (Cth) (“the Act”), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of the Wife from her interest in the Fund, the Husband is entitled to be paid (by the Trustee of the Fund) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $340,377 and there is a corresponding reduction in the entitlement the Wife would have had but for these Orders.

(c) Whenever a splittable payment is made out of the Wife's interest in the Fund, Super Fund 3 ("the Trustee") shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraphs 3(a) and 3(b) of these Orders in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

(d) That his Order have effect from the operative time and the operative time is the fourth business day after an original certified copy of the sealed Orders is served on the Trustee.

(e) This order binds the Trustee of the Fund.

4. The parties do all such things as are necessary to close all bank accounts held jointly by the parties and distribute any such remaining balances to the Wife.

5. Subject to the above Orders, the Wife shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the Husband in:

(a) Any motor vehicle in her possession;

(b) All items of furniture and contents in her possession;

(c) All savings or monies in her possession, custody or control, other than stated above;

(d) Her contributions and accumulated entitlements with respect to or arising from her membership of any superannuation fund, other than stated above; and

(e) Her employment related entitlements including but not limited to annual leave, sick leave and long service leave.

6. Subject to the above Orders, the Husband shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the Wife in:

(a) Any motor vehicle in his possession;

(b) All items of furniture and contents in his possession;

(c) All savings or monies in his possession, custody or control, other than stated above;

(d) His contributions and accumulated entitlements with respect to or arising from his membership of any superannuation fund, other than stated above; and

(e) His employment related entitlements including but not limited to annual leave, sick leave and long service leave.

7. In the event that either party fails or neglects to sign any document pursuant to these Orders, a Registrar of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed to execute such documents in the name of the party in default so as to give validity and operation to these Orders pursuant to s 106A of the Family Law Act 1975 (Cth) upon being satisfied of such failure or neglect by way of affidavit evidence.

8. The costs of the parties are reserved for a period of 28 days from the date of these Orders. Any application for costs is to be by way of the filing of an Application in a Proceeding together with any Affidavit in support within 14 days of these orders.

9. Save as to costs, the Wife’s Application filed on 26 October 2022 and the Response filed by the Husband on 28 November 2022 are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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Legal Principle Established

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