Volman and Volman - [2018] FamCA 345

FAMILY COURT OF AUSTRALIA

VOLMAN & VOLMAN

[2018] FamCA 345

FAMILY LAW – Property adjustment – Where both parties bankrupt – Where the only property for division is modest accrued superannuation entitlements – Where appropriate to make adjustive orders – Where non-disclosure by the husband – Where appropriate to be robust in considering the outcome – Where contributions favour the wife – Where s 75(2) considerations favour the wife – Where appropriate that there be a splitting order in favour of the wife of the totality of the husband’s superannuation.

Family Law Act 1975 (Cth) ss 75(2), 79

Bevan & Bevan [2014] FamCAFC 19
Chancellor & McCoy [2016] FamCAFC 256
Chapman & Chapman [2014] FamCAFC 91
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

APPLICANT:

Mr Volman

FIRST RESPONDENT:

Ms Volman

SECOND RESPONDENT:

Mr Leganzo (Trustee in Bankruptcy for Mr Volman and Trustee for Volman Family Trust

THIRD RESPONDENT:

Mr Curtis (Trustee in Bankruptcy for Ms Volman)

FILE NUMBER:

PAC

4140

2015

DATE DELIVERED:

18 May 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

21 March 2018

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

Mr Volman in person

SOLICITOR FOR THE FIRST RESPONDENT:

Ms Wade of Fairfax Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

Mr Muir of Oliveri Lawyers

SOLICITOR FOR THE THIRD RESPONDENT:

Ms Sweeney of Hammond Nguyen Turnbull

Orders:

That pursuant to s 90MT(1)(b) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the superannuation interest held by Mr Volman in the B Super (Membership: ..19) then Ms Volman shall be entitled to be paid 100 per cent of the interest of Mr Volman calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) and that there be a corresponding reduction to the entitlement to Mr Volman to whom the splittable payment would have been made but for this Order.
That the Trustee of the B Super shall do all acts and things and sign all documents as may be necessary to pay the entitlement whenever the Trustee makes a splittable payment out of the interest of Mr Volman in the fund.
That Orders (1) and (2) shall have effect from the operative time and the operative time is four (4) business days after service of this order on the Trustee.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family…

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 Volman and Volman

Details

AGLC: Volman and Volman [2018] FamCA 345
Case: [2018] FamCA 345
Decision Date: 18 May 2018

CaseChat Overview and Summary

In the matter of Volman and Volman, Foster J of the Family Court of Australia considered a dispute concerning the division of superannuation interests between the parties. The proceedings involved an application for orders relating to Mr Volman's superannuation interest in the B Super fund.

The central legal issue before the Court was how to effect the division of Mr Volman's superannuation interest in accordance with the provisions of the *Family Law Act 1975* (Cth), specifically s 90MT(1)(b), and the associated *Family Law (Superannuation) Regulations 2001* (Cth). This involved determining the percentage of a "splittable payment" that Ms Volman would be entitled to receive from Mr Volman's superannuation interest.

Foster J ordered that pursuant to s 90MT(1)(b) of the *Family Law Act 1975* (Cth), whenever a splittable payment becomes payable in respect of Mr Volman's superannuation interest in the B Super fund, Ms Volman shall be entitled to 100 per cent of that interest, calculated in accordance with Part 6 of the *Family Law (Superannuation) Regulations 2001* (Cth). This order necessitates a corresponding reduction in Mr Volman's entitlement to any such splittable payment. The Trustee of the B Super fund was directed to take all necessary steps to give effect to this payment. These orders were to take effect four business days after service on the Trustee.

Orders

Orders of the court

That pursuant to s 90MT(1)(b) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the superannuation interest held by Mr Volman in the B Super (Membership: ..19) then Ms Volman shall be entitled to be paid 100 per cent of the interest of Mr Volman calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) and that there be a corresponding reduction to the entitlement to Mr Volman to whom the splittable payment would have been made but for this Order.

That the Trustee of the B Super shall do all acts and things and sign all documents as may be necessary to pay the entitlement whenever the Trustee makes a splittable payment out of the interest of Mr Volman in the fund.

That Orders (1) and (2) shall have effect from the operative time and the operative time is four (4) business days after service of this order on the Trustee.

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

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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