VINCE & VINCE (No.2)

Case [2021] FCCA 282


FEDERAL CIRCUIT COURT OF AUSTRALIA

VINCE & VINCE (No.2) [2021] FCCA 282
Catchwords:
FAMILY LAW – Property proceedings – application for leave to proceed out of time with proceedings for property settlement – parties separated for 11 years – application brought by the wife in circumstances where the husband received compensation from a WorkCover claim post separation, which he had originally commenced during the parties’ marriage – issues of child support being assessed in light of the husband being found to have been entitled to regular compensation payments in the period post-separation – section 75(2) factors considered – question of whether contributions must be tied to assets available to be divided in property proceedings – assessment of prospective needs – considerations of justice and equity.

Legislation:

Family Law Act 1975 (Cth), ss.4, 39, 44, 79, 79A, 90XC

Child Support (Assessment) Act 1989 (Cth) ss.4, 25, 43, 98S, 111, 112, 117, 118

Child Support (Registration and Collection) Act 1988 (Cth)

Cases cited:

Bevan & Bevan [2013] FamCAFC 116

Biltoft & Biltoft (1995) FLC 92-614; (1995) Fam LR 82

Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541

NHC & RCH (2004) FLC 93-204

Clauson & Clauson (1995) FLC 92-595

C & C (2005) FLC93-220

Edmunds & Edmunds [2018] FamCAFC 121

Farmer & Bramley (2000) FLC 93-060

Ferguson & Ferguson (1978) FLC 90-500

Fox v Percy (2003) 214 CLR 118

Gadzen & Simkin [2018] FamCAFC 218

Gallo & Dawson [1990] HCA 30

Gilmour & Gilmour (1995) FLC 92-591

Hall, K A and Hall, J C (1979) FLC 90-679

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143

Ingold & Ingold [2019] FamCA 734

In the Marriage of Browne & Green (1999) 25 Fam LR 482

In the Marriage of DJM and JLM (1998) 23 Fam LR 396

In the Marriage of Kowaliw (1981) FLC 91-092

In the Marriage of Omacini (2005) 33 Fam LR 134

In the Marriage of Townsend (1994) 18 Fam LR 505

Jacenko & Jacenko (1986) FLC 91-776

Lee Steere & Lee Steere (1985) FLC 91-626

McColl & McColl [2013] FCCA 736

Milas v GM Holden Limited [2015] FCCA 1311

Rushton & Rushton [2011] FMCAfam 1259

Russell & Russell [1999] FamCA 1875

Sharp & Sharp [2011] FamCAFC 150

Slocomb & Hedgewood (2015) FLC 93-678

Stanford v Stanford [2012] HCA 52

Trevi & Trevi [2018] FamCAFC 173

Vince & Vince [2016] FCCA 2590

Wardman & Hudson (1978) FLC 90-466

Waters & Jurek (1995) FLC 92-635

Watson & Ling [2013] FamCA 57

Whitford & Whitford (1979) FLC 90-612

Applicant: MS VINCE
Respondent: MR VINCE
File Number: ADC 4545 of 2007
Judgment of: Judge Brown
Hearing dates: 22, 23 & 24 July 2020
Date of Last Submission: 24 July 2020
Delivered at: Adelaide
Delivered on: 22 February 2021

REPRESENTATION

Counsel for the Applicant: Mr Anderson
Solicitors for the Applicant: CG Family Law
Counsel for the Respondent: Mr Bowler
Solicitors for the Respondent: Duncan Basheer Hannon

ORDERS

In full and final settlement of all claims for settlement of matrimonial property:

  1. That,…

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VINCE & VINCE (No.2) [2021] FCCA 282
Case
[2021] FCCA 282
Decision Date

CaseChat Overview and Summary

In *Vince & Vince (No.2)*, the wife sought leave to proceed out of time with her application for property settlement against the husband. The parties had separated 11 years prior, and the application was brought in circumstances where the husband had received post-separation compensation from a WorkCover claim, which he had initiated during the marriage. Issues also arose concerning child support assessments in light of the husband's entitlement to regular post-separation compensation payments.

The court was required to determine whether to grant the wife leave to proceed with her property settlement application out of time, considering the significant delay since separation. Furthermore, the court had to assess the relevant factors under section 75(2) of the *Family Law Act 1975* (Cth), including the wife's prospective needs and the husband's post-separation compensation. A key legal question was whether contributions made by a party must be directly tied to assets available for division in property proceedings, and how to assess prospective needs in the context of justice and equity.

Judge Brown granted the wife leave to proceed out of time pursuant to section 44(3) of the *Family Law Act 1975* (Cth). The court reasoned that despite the delay, the circumstances warranted granting leave, particularly in light of the husband's post-separation compensation and the wife's prospective needs. The court applied principles of justice and equity, considering that contributions do not necessarily need to be tied to specific divisible assets to be taken into account. The court ordered a final settlement, including a payment of $52,000 to the wife, a transfer of 32.5% of the husband's current share portfolio, and a splitting order of $60,000 from the husband's Super Fund B Account in the wife's favour. The remaining assets were to be retained by each party respectively.

Orders

Orders of the court

In full and final settlement of all claims for settlement of matrimonial property:

1.

That, pursuant to section 44(3) of the Family Law Act 1975 (Cth), leave is granted for the wife to proceed with her application for property settlement out of time.

2.

The husband pay to the wife the sum of fifty two thousand dollars ($52,000.00) within fourteen (14) days of the date of these orders.

3.

Within fourteen (14) days of the date of these orders, the husband do execute a transfer of his shares to the wife, at his expense, to the value of 32.5% of his current share portfolio.

4.

The parties are given liberty to apply in the event that order (3) hereof cannot be satisfied.

5.

Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) there be a splitting order, in the sum of sixty thousand dollars ($60,000.00), made in the wife’s favour out of the funds currently standing in the husband’s name in his Super Fund B Account.

6.

The trustee of the Super Fund B Fund do all things necessary to give effect to order (5) hereof and within twenty eight days (28) of the making of this order to rollover the sum to be split in the wife’s favour to the superannuation fund as nominated by the wife.

7.

The wife will serve a copy of these orders on the trustee of the husband’s Super Fund B Fund within twenty eight days (28) of the date of these orders and thereafter the aforesaid trustee has liberty to relist the matter in the event that the trustee is unable to comply with order (5) hereof.

8.

The trustee of the Super Fund B Fund and the wife in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all necessary documents as are required to calculate the payment entitlements of the wife in accordance with order (5) hereof.

9.

Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:

(a) the furniture and furnishings in his possession, power and control;

(b) any motor vehicle in his possession;

(c) all savings, shares and investments in his name subject to orders (2) & (3) hereof;

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in his name subject to order (5) hereof;

(e) his personal effects; and

(f) any other real and/or personal property and/or financial resources of the husband or in the husband’s name and/or possession not otherwise specified herein.

10.

Including but without limiting the effect hereof, the wife shall retain for her sole use and benefit absolutely free from any further claim or demand of the husband:

(a) the furniture and furnishings in her possession, power and control;

(b) any motor vehicle in her possession;

(c) all savings, shares and investments in her name;

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in her name;

(e) her personal effects.

(f) any other real and/or personal property and/or financial resources of the wife or in the wife’s name and/or possession not otherwise specified herein.

11.

All applications be otherwise 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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