Walter & Walter - [2022] FedCFamC2F 1039

Federal Circuit and Family Court of Australia
(DIVISION 2)
Walter & Walter [2022] FedCFamC2F 1039

File number(s): PAC 252 of 2020

Judgment of: JUDGE MANSFIELD

Date of judgment: 10 August 2022

Catchwords: FAMILY LAW – PROPERTY – many factual issues in dispute – paid legal fees and premature distribution of asset – contested add-backs partially allowed – wife’s compensation payment as whole of initial contribution – not a small pool case as contended for by the wife – four step process followed – additional adjustment for justice and equity and crafting of orders to provide wife with an opportunity to make arrangements which would relieve her from selling property if possible.

Legislation:
Child Support (Assessment) Act 1989 (Cth)

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 75(2), 79, 79(2), 79(4), 79(4)(e), 79(4)(f)

Family Law (Superannuation) Regulations 2001

Cases cited:
Babett & Falconer (2015) FLC 98-067

NHC & RCH [2004] FamCA 633

C v C [2005] FLC 93-220

Dickons & Dickons [2012] FamCAFC 154

DJM and JLM (1998) FLC 92-816

Dovgan & Dovgan [2021] FamCA 306

Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143

In the Marriage of Lee Steere [1985] FLC 91-626

In the Marriage of Magas [1980] FLC 90-885

Kennon & Kennon (1997) FLC 92-757

Marker & Marker [1998] FamCA 42

Norbis v Norbis [1986] 10 FamLR 819

AJO & GRO [2005] FamCA 195

Perrin & Perrin (No 2) [2018] FamCAFC 122

Stanford v Stanford (2012) 247 CLR 108

Townsend & Townsend (1995) FLC 92-569

Trevi & Trevi [2018] FamCAFC 173

Division: Division 2 Family Law

Number of paragraphs: 140

Date of last submission/s: 27 May 2022

Date of hearing: 12 – 13 May 2022

Place: Parramatta

Counsel for the Applicant: Mr Bennett

Counsel for the Respondent: Mr Katsinas
ORDERS

PAC 252 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WALTER

Applicant

AND:
MR WALTER

Respondent

order made by:

JUDGE MANSFIELD

DATE OF ORDER:

10 august 2022

THE COURT ORDERS THAT:
Superannuation
1.In accordance with section 90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act’), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to, or on behalf of the wife, Ms Walter (DOB: 1978, member number …), from her interest in Super Fund B, the husband, Mr Walter (DOB: 1977) is entitled to be paid by the trustee of Super Fund B the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of THIRTY-ONE THOUSAND SIX HUNDRED AND NINETY FOUR DOLLARS ($31,694), and there will be a corresponding reduction in the amount the wife, Ms Walter, would be entitled to receive but for these Orders.
2.Order 1 binds the trustee of Super Fund B.
3.The operative time for Order 1 is four (4) business days after the service of a certified copy of the Final Orders on the trustee of Super Fund B.
4.Orders 1-3 are stayed pending compliance with Order…

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 Walter & Walter

Details

AGLC: Walter & Walter [2022] FedCFamC2F 1039
Case: [2022] FedCFamC2F 1039
Decision Date

CaseChat Overview and Summary

The case of Walter and Walter was a dispute between husband and wife over the division of property following the breakdown of their marriage. The wife sought orders for her to retain the C Street, Suburb D property and for the husband to pay child support arrears. The husband sought orders for the wife to pay a settlement sum to him and for her to retain the C Street, Suburb D property or sell it in default of payment to him. The court followed a four-step process to determine what, if any, alteration in property interests was just and equitable. The court found that the wife's initial contribution significantly exceeded the husband's initial contribution. The court also found that the parties' relative contributions during the relationship were equal. The court made orders for a division of the combined non-superannuation and superannuation property pool of 72.5 / 27.5 in the wife's favour. The court also made orders for the wife to pay a settlement sum to the husband and for the husband to remove the caveat lodged against the C Street, Suburb D property. The court made further orders for the transfer of interests in entities and the retention of other property.

Orders