TETHYS & TETHYS - [2012] FamCA 811

FAMILY COURT OF AUSTRALIA

TETHYS & TETHYS

[2012] FamCA 811

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Where the husband seeks an adjustment in his favour to account for an inheritance he received during the marriage following his mother’s death – Where the contribution of the inheritance must be assessed having regard to the contributions of the parties over 38 years of marriage and hard work and taking into account that the parties themselves contributed to the testator’s property

FAMILY LAW – PROPERTY – Disclosure – Where the husband failed to disclose his interest in a property in South East Europe until the first day of the hearing – Where the husband has not produced any documents in relation to the property – Court to err on the side of generosity towards the innocent party

Family Law Act 1975 (Cth) s75(2)

Kannis WA 9 of 2002
Lint & Lint [2011] Fam CAFC 115
Pierce and Pierce (1999) FLC 92-844
Weir v Weir (1993) FLC 92-338

APPLICANT:

Ms Tethys

RESPONDENT:

Mr Tethys

FILE NUMBER:

SYC

1303

2010

DATE DELIVERED:	18 September 2012
ORDERS DELIVERED:	21 September 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

4 & 5 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

SOLICITOR FOR THE APPLICANT:

Crawford Ryan Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Hodgson

SOLICITOR FOR THE RESPONDENT:

Fox O'Brien

ORDERS
IT IS ORDERED

This Order is made by way of alteration of property interests pursuant to s.79:

1.1.That within thirty (30) days from the date of these orders the husband do all acts and things and sign all documents as may be required to cause the payment by way of bank cheque of $24,235 to the wife.
1.2.That within thirty (30) days the husband do all acts and things and sign and execute all documents necessary to transfer to the wife his right, title and interest in work vehicle licence No. …7.
1.3.That simultaneous with Order 1.2 the wife do all acts and things and sign and execute all documents necessary to transfer to the husband her right, title and interest in work vehicle licence No. …7.
1.4.
1.4.1.Pursuant to s.90MT (1) (a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest held by Mr Tethys (Member No. …01) in the MasterKey Superannuation Fund, the Trustee of the MasterKey Superannuation Fund shall pay to Ms Tethys born … 1948 an entitlement calculated in accordance with Part 6 of the Family Law (Superannuation ) Regulations 2001 using a base amount of $255,403 held on behalf of Mr Tethysin the MasterKey Superannuation Fund and there will be a corresponding reduction in the entitlements held on behalf of Mr Tethys which he would otherwise have had but for these Orders:
That for the purposes of this Order:
1.4.1.1.The base amount to be allocated to Ms Tethys is the amount of $255,403
1.4.1.2.These orders will have effect from the operative time
1.4.1.3.The operative…

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 TETHYS & TETHYS

Details

AGLC: TETHYS & TETHYS [2012] FamCA 811
Case: [2012] FamCA 811
Decision Date: 18 September 2012

CaseChat Overview and Summary

In the matter of Tethys & Tethys, Rees J considered a property settlement dispute between a husband and wife. The husband sought an adjustment in his favour to account for an inheritance he received during their 38-year marriage. The wife, in turn, raised issues concerning the husband's failure to disclose an interest in a property located in South East Europe until the first day of the hearing, and his lack of production of any documents relating to that property.

The court was required to determine how the husband's inheritance should be assessed as a contribution, particularly in light of the parties' extensive contributions over their long marriage, their hard work, and the fact that they themselves had contributed to the testator's property. Additionally, the court had to address the consequences of the husband's non-disclosure of the overseas property and the lack of supporting documentation.

Rees J reasoned that the assessment of the inheritance contribution must be balanced against the parties' overall contributions during their 38-year marriage and their hard work. The court also took into account the parties' contributions to the testator's property. Regarding the non-disclosure, the court indicated it would err on the side of generosity towards the innocent party, the wife.

The orders made by the court included a payment of $24,235 from the husband to the wife, the transfer of a work vehicle licence to the wife, and a division of the husband's superannuation interest in the MasterKey Superannuation Fund, with a base amount of $255,403 allocated to the wife. The husband was also restrained from dealing with his superannuation interest in a way that would defeat the wife's entitlement. The court also ordered the transfer of a motor vehicle to the wife and provided for the Registrar to execute documents if a party failed to comply.

Orders

Orders of the court

IT IS ORDERED

This Order is made by way of alteration of property interests pursuant to s.79:

1.1. That within thirty (30) days from the date of these orders the husband do all acts and things and sign all documents as may be required to cause the payment by way of bank cheque of $24,235 to the wife.

1.2. That within thirty (30) days the husband do all acts and things and sign and execute all documents necessary to transfer to the wife his right, title and interest in work vehicle licence No. …7.

1.3. That simultaneous with Order 1.2 the wife do all acts and things and sign and execute all documents necessary to transfer to the husband her right, title and interest in work vehicle licence No. …7.

1.4.

1.4.1. Pursuant to s.90MT (1) (a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest held by Mr Tethys (Member No. …01) in the MasterKey Superannuation Fund, the Trustee of the MasterKey Superannuation Fund shall pay to Ms Tethys born … 1948 an entitlement calculated in accordance with Part 6 of the Family Law (Superannuation ) Regulations 2001 using a base amount of $255,403 held on behalf of Mr Tethys in the MasterKey Superannuation Fund and there will be a corresponding reduction in the entitlements held on behalf of Mr Tethys which he would otherwise have had but for these Orders:

That for the purposes of this Order:

1.4.1.1. The base amount to be allocated to Ms Tethys is the amount of $255,403

1.4.1.2. These orders will have effect from the operative time

1.4.1.3. The operative date is 4 days after the Orders have been served upon the Trustees of the MasterKey Superannuation Fund.

1.4.1.4. These orders are binding on the Trustees of the MasterKey Superannuation Fund.

1.4.2. That each party and each of the Trustees have liberty to apply in relation to the implementation of the Orders effecting the superannuation interests of Mr Tethys in the MasterKey Superannuation Fund.

1.4.3. Pursuant to Section 90MZD of the Family Law Act 1975 as a matter of procedural fairness, the Trustees of the MasterKey Superannuation Fund, having been given notice of the intention of the parties to seek Orders set out herein are bound by them as and from the date of service upon the Trustees and shall give effect to these Orders.

1.4.4. Until the happening of :

1.4.4.1. The establishment of a separate account in the name of the wife or

1.4.4.2. The transfer or rolling into another superannuation fund of the payment created herein in favour of the wife or

1.4.4.3. The wife satisfies a condition of release and is paid the payment created by the Orders herein or

1.4.4.4. The wife executes a waiver of rights within the meaning of section 90 MZA of the Family Law Act 1975 in relation to the payment split

The husband is forthwith restrained from drawing upon or encumbering the member’s interest in the Fund or executing any death benefit nomination in favour of any person or doing any act or thing that would have the effect of defeating, diminishing or otherwise reducing the allocated splittable payment or rendering any part of his interest as a “not splittable payment” within the meaning of Regulation 12 and 13 of the Family Law (Superannuation) Regulations 2001.

1.5. That within 14 days of the date of these Orders the husband do all acts and things and sign and execute all documents necessary to transfer to the wife all of his right title and interest in the … motor vehicle registration no. …4X.

Except as otherwise provided in these Orders, the husband and the wife are entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.

That the parties do all acts and things, sign and execute all documents and give all consents necessary to give full force and effect to these orders.

That if either party refuses or neglects to sign or execute any document, instrument or writing or to comply with any order contained herein after seven days of being required to do so, pursuant to Section 106A of the Act that the Registrar of the Family Court of Australia at Sydney be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to orders herein.

Leave to either party to apply upon seven (7) days notice in respect of the implementation of any or all of these orders.

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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