Vinci & Adamo
[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 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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
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
Although the appellant relied on 17 grounds and sub-grounds of appeal, as argued, they devolved into a challenge to the contribution findings and a challenge to the form of the splitting order itself, asserting that a base amount and not a percentage should have been fixed.
Ground 10 was abandoned.
Challenges to the contribution findings
The appellant challenges the primary judge’s finding that the parties’ contributions during the marriage were equal and hence the contributions to the pension were equal. The appellant does so in a number of ways.
The first submission was that the primary judge was obliged to follow the course set out in Coghlan and Coghlan (2005) FLC 93-220 (“Coghlan”) at [48] but did not do so. There, the majority of the Full Court said that when “considering what order should be made with respect to the property of the parties (and/or any superannuation interests)” the court must take into account the matters raised by s 79(4) in the Act. Such a proposition is entirely unremarkable.
We have already set out her Honour’s conclusion as to the contributions to the pension. They were underpinned by the following findings:
224.Both the [respondent] and the [appellant] were interested in politics and active members of a political party. The [appellant’s] [career] was an enterprise in which they were both interested and involved.
225.In submissions, the [respondent] conceded that they each made a contribution to that endeavour according to their abilities.
226.The evidence does not admit of any finding other than that this was an enterprise to which they were both committed in the course of their marriage and that they each did everything in his or her power to facilitate it.
…
293.The [appellant] owned the Suburb E property at the commencement of the co-habitation. Her estimate that her equity at the time of the marriage was about $860,000 was unchallenged. Thus the [appellant’s] initial contribution was substantially greater than that of the [respondent].
294. The [respondent] does not assert that he contributed to the repayment of the mortgage or the outgoings in Suburb E before the parties married.
295. After the marriage, and up until separation in 2012, they both worked and they both contributed their income to the marriage.
296. They both contributed to the [appellant’s] [career] and they both contributed to the subsequent litigation.
297. They both cared for the children according to their respective work commitments.
298. Doing the best I can with the evidence available, I find that it is likely that, until separation, the [respondent] also made a contribution from his earnings to the family’s financial support.
299.I assess the contributions from the time of the marriage until separation as equal.
In these paragraphs the primary judge has identified the relevant contributions made by the parties as initial contributions and as contributions during the marriage. At [300]–[304] her Honour discussed the parties’ post-separation contributions and concluded that the contributions to the non-superannuation pool favoured the appellant as to 70 per cent.
The primary judge turned to the superannuation interests and pension at [305]–[311] before concluding:
311.The entirety of her entitlement to the pension accrued during the marriage and I consider that there contributions to it are equal. The orders will provide for the pension to be equally split.
The considerations arising from s 75(2) of the Act were discussed at [312]–[321] with the outcome being that there should be a further adjustment to the appellant of 10 per cent. It is clear from those paragraphs that the adjustment was to be in relation to the non-superannuation assets only and not to the superannuation interests or pension.
In short, the primary judge has acted entirely in accordance with s 79(4). The submission that, had Coghlan been applied, there was no way that the primary judge could have concluded that the respondent was entitled to half of the pension is not a submission as to whether s 79(4) and hence s 75(2) of the Act was correctly applied, but rather a plea to us to substitute a different conclusion to that reached by the primary judge. Absent error, that is not a course open to us.
The appellant disputed that the findings at [224]–[226] and [294]–[299] led to the conclusions as to contributions to the pension, but this submission is simply untenable. The conclusions at [310]–[311] are obviously based on and are entirely consistent with the earlier findings.
The primary judge found that the parties both contributed in their own way to the appellant’s career “according to their abilities” (at [225]). Her Honour did not find that such contributions were equal. The critical finding was, however, that the parties’ contributions to the marriage, as opposed to their initial contributions or post-separation contributions, taken as a whole were equal (at [299]). As the appellant’s rights to receive the pension in due course occurred entirely during that period, the primary judge regarded the contributions to that pension also as being equal.
Such reasoning is entirely orthodox and does not bespeak error. Indeed, had her Honour weighed particular contributions, such as the appellant’s contributions whilst an elected official against all of the other contributions of the parties’, that would have been an error (Dickons v Dickons (2012) 50 Fam LR 244 at [21]; Jabour & Jabour (2019) FLC 93-898 at [73]–[87]; Horrigan & Horrigan [2020] FamCAFC 25 at [42]–[48]; Benson & Drury (2020) FLC 93-998 at [35]).
Hence, we do not accept the submission that her Honour impermissibly concluded that because the respondent did everything within his power to facilitate the appellant’s career it was a contribution to which the primary judge did not pay appropriate regard. As to the first, whatever the extent and nature of the respondent’s actions they were undoubtedly contributions. The balance of the submission is merely an invitation to us to substitute our own view of the weight to be ascribed to the various contributions overall.
Next it was submitted that the primary judge’s reasons were inadequate because the appellant’s “capacity to attain the age of 55 and meet one of the criteria for eligibility for the deferred pension is not something to which [the respondent] has contributed at all” yet her Honour found that the contributions were equal (Appellant’s Summary of Argument filed on 22 July 2021, paragraph 18). As we have explained, this misrepresents her Honour’s findings which, we repeat, were that as the parties’ contributions during the marriage were equal and as the appellant’s rights to the pension arose entirely during that period (her career took place at the time the marriage subsisted), the contributions to that pension should be also regarded as equal. Finally, the significance of the appellant’s ability to turn 55 was not raised in either the respondent’s Case Outline or oral submissions to the primary judge. It is not an obvious point and, given the absence of submissions, it cannot be said that her Honour was in error for not taking it into account.
In any event, that reasoning explains how the conclusions and the findings on which they were based were derived and accordingly, the reasons are adequate (Bennett and Bennett (1991) FLC 92-191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110). It is not at all clear to us how the capacity to attain the age of 55 bears on those findings or indeed, what weight could be placed upon it.
It was contended that respondent was obliged to show that his contributions to the pension were equal, which he had not done. As we have explained, that was not the basis on which the findings as to the contributions to the pension were made.
The appellant’s submissions then turned to challenges of specific findings of facts.
The appellant submitted that the respondent did not equally share the burden of childcare during the marriage. That, of course, is to mistake the findings of the primary judge. Her Honour did not find that each and every contribution made by the parties was equal but that, when all the various contributions were taken into account there was a position of equality.
The relevant finding was that during the period prior to separation “both cared for the children according to their respective work commitments” (at [297]).
This finding is consistent with the appellant’s evidence on this issue which was:
34.From the time the children were born, up until the children commenced school, I say that [the respondent] and I, together with [the respondent’s] mother and my father, cared for the children.
35.I also employed a nanny and utilised childcare, the costs of which were borne by me.
36.I regularly took [the children] to work with me whilst they were babies and toddlers.
(Appellant’s affidavit filed on 23 June 2020, paragraphs 34–36)
That evidence did not differ greatly from that of the respondent (see the respondent’s affidavit filed on 14 September 2020, paragraphs 33–35).
The appellant then turned to her career which she submitted could only have been undertaken by her. This was recognised by the primary judge who noted that the respondent “assisted” the appellant to carry out that work by caring for the children (at [310]).
Faced with that obvious point, the appellant submitted that the respondent’s care of the children would carry little weight because the parties’ first child was born approximately halfway through the appellant’s career. There is no reason to think that her Honour was not well aware of this having spent the bulk of her reasons on the parenting issues that were also before her. In any case, the matter of weight was one for the primary judge.
The appellant submitted that her Honour failed to take into account the family violence inflicted by the respondent which, it was said, made the appellant’s contributions more arduous.
The primary judge accepted that the respondent had “used derogatory and inappropriate language to the [appellant] as she alleged and that there has been mutual pushing and shoving between them” (at [105]). No challenge was made to that finding. It is too slender a basis on which to make an adjustment under the principles set out in Kennon v Kennon (1997) FLC 92-757.
The appellant contended that the primary judge erred in finding that “the evidence does not establish over what periods the accumulation interests accrued” (at [306]) because there was some evidence that bore upon the point. This point can only go to the orders as to the retention of superannuation by each party, which are not challenged, so the point is misconceived. In any event, to the extent it is an error no material consequence was said to flow from it (De Winter and De Winter (1979) FLC 90-605).
Finally, the appellant submitted that the primary judge failed to take into account the post-separation contributions of the appellant which greatly exceeded those of the respondent. That is not so as those contributions were identified at [300]–[303] and expressly taken into account in the findings of the contributions to the non-superannuation property.
Her Honour, obviously, did not see such contributions as being directly relevant to the pension, which, to repeat, was acquired entirely during the relationship.
Despite the strenuous attempts of counsel for the appellant to rake through the coals to find error in the conclusions as to the pension, we are quite unpersuaded of any. Further, it appears to us that there is a difficulty in appealing only one out of a suite of orders when it is plain that the primary judge was satisfied that the overall outcome was just and equitable. The appellant never attempted to grasp that nettle.
The form of the order
The appellant contends that the primary judge erred by splitting the pension by a percentage rather than as a reference to a base amount. It is then further submitted that her Honour erroneously failed to ascribe a value to the pension.
Section 90XT(1) of the Act provides:
Splitting order
(1)A court, in accordance with section 90XS, may make the following orders in relation to a superannuation interest (other than an unsplittable interest):
(a)if the interest is not a percentage‑only interest—an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:
(i)the non‑member spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations; and
(ii)there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;
(b)an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:
(i)the non‑member spouse is entitled to be paid a specified percentage of the splittable payment; and
(ii)there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;
(c)if the interest is a percentage‑only interest—an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:
(i)the non‑member spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations by reference to the percentage specified in the order;
(ii)there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;
(d)such other orders as the court thinks necessary for the enforcement of an order under paragraph (a), (b) or (c).
The section clearly permits a splitting order to be by way of a base amount or percentage.
It is true that the trustees of Super Fund 1 indicated a preference for the former order over the latter, but the primary judge was not obliged to follow their preference.
As to the need for valuation, s 90XT(2) of the Act provides that:
(2)Before making an order referred to in subsection (1), the court must make a determination under paragraph (a) or (b) as follows:
(a)if the regulations provide for the determination of an amount in relation to the interest, the court must determine the amount in accordance with the regulations;
(b)otherwise, the court must determine the value of the interest by such method as the court considers appropriate.
The primary judge said:
284. There is no dispute that the [appellant] will not be entitled to receive her pension as a lump sum.
285.She has no entitlement to the pension until she reaches the age of 55 years in 2026.
286. At that time, she will be entitled to receive a pension which is the equivalent of 45 percent of the salary. Currently, the salary is $169,192. Thus the pension, based on the current figure, would be $76,136 or $1,464 per week.
Whilst splitting by a base amount obviously requires a valuation in accordance with the Regulations we do not see why the above discussion is not a sufficient valuation for the purposes of a percentage order and s 90XT(2)(b) of the Act. It takes into account the likely sum to be received each week, as best it could be divined on the evidence, so that it is clear what each party would receive under the order, as best can be done.
It was not suggested that any of the Regulations bore on this question.
We are not satisfied of any error.
The parties, however, agreed that the primary judge’s reference to “s 90MT” in Order 18 was an error which we should correct. The provisions of the Act relating to superannuation interests were renumbered in 2018 pursuant to s 56 of the Civil Law and Justice Legislation Amendment Act 2018 (Cth).
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.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Gill & Hartnett. Associate:
Dated: 5 November 2021
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