Vinci & Adamo

Case [2021] FedCFamC1A 53

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Vinci & Adamo [2021] FedCFamC1A 53

Appeal from: Adamo & Vinci [2020] FamCA 873
Appeal number(s): EAA 158 of 2020
File number(s): SYC 3598 of 2018
Judgment of: ALDRIDGE, GILL & HARTNETT JJ
Date of judgment: 5 November 2021
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from order splitting the appellant’s pension – Respondent entitled to 50 per cent of each splittable payment – Challenges to contribution findings and form of order – Adequacy of reasons – Factual findings – Attribution of weight – Where the legislative pathway was followed – Findings open on the evidence – No error established – Order varied under the slip rule – Appeal otherwise dismissed.
Legislation:

Civil Law and Justice Legislation Amendment Act 2018 (Cth) s 56

Family Law Act 1975 (Cth) ss 75, 79, 90XT

Family Law (Superannuation) Regulations 2001 (Cth)
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Coghlan and Coghlan (2005) FLC 93-220; [2005] FamCA 429

De Winter and De Winter (1979) FLC 90-605

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Horrigan & Horrigan [2020] FamCAFC 25

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Number of paragraphs: 50
Date of hearing: 8 September 2021
Place: Sydney (via video link)
Counsel for the Appellant: Mr Livingstone
Solicitor for the Appellant: Alidenes & Co
The Respondent: Self-represented litigant

ORDERS

EAA 158 of 2020
SYC 3598 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS VINCI

Appellant
AND:

MR ADAMO

Respondent

ORDER MADE BY:

ALDRIDGE, GILL & HARTNETT JJ

DATE OF ORDER:

5 NOVEMBER 2021

THE COURT ORDERS THAT:

1.Subject to Order 2, the appeal is dismissed.

2.Pursuant to r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Order 18 made on 16 October 2020 is varied by replacing “90MT(1)(b)” with “90XT(1)(b)”.

3.The Notice of Contention filed on 25 November 2020 is 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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vinci & Adamo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE, GILL & HARTNETT JJ:

INTRODUCTION

  1. On 16 October 2020 a judge of the Family Court of Australia made a suite of property settlement orders in proceedings between Ms Vinci…

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AGLC
Vinci & Adamo [2021] FedCFamC1A 53
Case
[2021] FedCFamC1A 53
Decision Date

CaseChat Overview and Summary

The appeal before the court involved Ms Vinci, the appellant, and Mr Adamo, the respondent. The matter pertained to a property settlement made by a judge of the Family Court of Australia on 16 October 2020. The appeal specifically challenged Order 18(c), which mandated that the respondent be paid 50% of each payment from the appellant’s pension. The appellant and respondent were married in 2002 and separated in 2012 but remained cohabiting until October 2018. They have two children born in 2006 and 2009. The appellant owned a house in Suburb E, purchased in 1996, which was valued at $900,000 at the time of the marriage and $2.6 million at the time of the hearing. The respondent had a superannuation interest valued at $116,037.25, while the appellant had a superannuation interest valued at $143,000. Additionally, the appellant had an interest in Super Fund 1, valued at $1,225,685.75 by the respondent and $886,759 by the appellant. The appellant’s pension, to which she is not entitled until she turns 55 in 2026, was valued at 45% of her salary at that time.

The court was required to determine whether the primary judge's decision to split the pension equally between the parties was appropriate. The primary judge had concluded that the appellant's entitlement to the pension accrued during the marriage and that both parties' contributions to the pension were equal. This led to the decision to split the pension equally. The court also had to consider whether the primary judge's decision to award 80% of the non-superannuation property to the appellant was appropriate, despite some collateral challenges to the findings supporting this decision. The primary judge had determined that the parties' contributions to the non-superannuation assets favoured the appellant by 70% and the respondent by 30%, and that an adjustment of 10% in favour of the appellant was appropriate.

The court held that the appeal would be dismissed, except for the amendment of Order 18(c) to refer to section 90XT of the Family Law Act 1975. The court found no error in the primary judge's decision to split the pension equally, as the contributions to the pension were indeed equal. The court also upheld the primary judge's decision regarding the non-superannuation property, finding no merit in the collateral challenges. The respondent did not seek any order as to costs.

Orders

Orders of the court

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Background

Background to the litigation

On 16 October 2020 a judge of the Family Court of Australia made a suite of property settlement orders in proceedings between Ms Vinci (“the appellant”) and Mr Adamo (“the respondent”). Only one of those orders is the subject of the appeal, namely Order 18(c) which is an order splitting the appellant’s pension (“the pension”) so that the respondent was entitled to be paid 50 per cent of each splittable payment.BACKGROUND The parties married in 2002 and separated in 2012 but remained living under the one roof until October 2018. They have two children (“the children”) born in 2006 and 2009. The appellant purchased a house at Suburb E in 1996. At the time of the marriage it was worth approximately $900,000 with a mortgage of $40,000. At the time of the hearing it was worth $2.6 million and was the only substantial non-superannuation property available for division. The respondent had a superannuation interest which had been valued pursuant to the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”) at $116,037.25 and the appellant had a superannuation interest similarly valued at $143,000. In addition, the appellant had an interest in Super Fund 1 which was valued at $1,225,685.75 by the respondent and $886,759 by the appellant. The primary judge noted that the appellant was not entitled to receive the pension until she turned 55 years of age in 2026, at which time she would be entitled to receive a pension at 45 per cent of the then salary. Her Honour decided that the pension could not properly be included as property in a lump sum and accordingly decided to deal with the superannuation and pension interests separately from the other property. No challenge was made to that course being taken. The non-superannuation assets had a value of $2,026,267. The primary judge determined that the parties’ contributions to that property favoured the appellant as to 70 per cent and the respondent 30 per cent. After considering the matters raised by s 79(4) of the Family Law Act 1975 (Cth) (“the Act”), an adjustment of 10 per cent in favour of the appellant was considered appropriate. There is no appeal against the decision to award 80 per cent of the non-superannuation property to the appellant, although, as we shall see, some collateral attacks were made to some of the findings that lend to that conclusion. Her Honour determined that each party should retain his or her superannuation entitlements. As to the pension, the primary judge said:310.The [appellant’s] entitlement to the pension accrued by virtue of her [career] in 2003 and her remaining there until [early] 2011. In relation to her [career], I am satisfied that this was an enterprise to which the [respondent] contributed his expertise and efforts. I am also satisfied that, when the [appellant] was an elected official, she was assisted in carrying out her duties by the fact that the [respondent] was available to care for the children.311.The entirety of her entitlement to the pension accrued during the marriage and I consider that their contributions to it are equal. The orders will provide for the pension to be equally split.THE APPEAL

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The order will be amended so as to refer to s 90XT of the Act.CONCLUSION AND COSTS The appeal will otherwise be dismissed. The respondent did not seek any order as to costs.

Ratio Decidendi

Legal Principle Established

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