Warford and Warford - [2016] FamCA 55

FAMILY COURT OF AUSTRALIA

WARFORD & WARFORD

[2016] FamCA 55

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the husband and wife cohabited for between six and seven years – Where there are two children aged eight and five – Where the wife has primary responsibility for the care of the children – Where the husband’s financial contributions far exceeded those made by the wife – Where the wife made greater contributions to the welfare of the family unit than the husband – Where the contributions overall were found to be 70 percent by the husband and 30 percent by the wife – Where the husband and wife have similar earning capacities – Where it is appropriate to make a 20 percent s 75(2) adjustment in favour of the wife – Where it is appropriate to make a superannuation splitting order in favour of the wife.

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

Bevan & Bevan (2013) FLC 93-545
Chorn & Hopkins (2004) FLC 93-204
Clauson and Clauson (1995) FLC 92-595
Finlayson v Finlayson & Gillam (2002) FLC 93-121
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Warford

RESPONDENT:

Ms Warford

FILE NUMBER:

SYC

845

2013

DATE DELIVERED:

9 February 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

15 & 16 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Spain

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

FOR THE RESPONDENT:

Ms Warford in person

Orders

That within 60 days the husband shall pay to the wife the sum of $122 152.
That in the event that the husband should fail to comply with the above order he shall forthwith do all things and sign all documents necessary to sell his property at B Street, Suburb A for the best price reasonably able to be obtained.
That the net proceeds of sale of the said property shall be paid as follows:
(a)In payment of agent’s commission and costs of sale including legal costs of sale;
(b)In payment of all monies outstanding on the mortgage over the said property;
(c)In payment to the wife of $122 152 together with interest at the rate prescribed in the Family Law Rules 2004; and
(d)In payment of the balance to the husband.
That the Court allocates, as required by s 90MT(4) of the Family Law Act 1975 (Cth), (“the Act”) a base amount of $40 000 to Ms Warford (“the wife”) out of the interest of Mr Warford (“the husband”) in the AMP North Personal Superannuation Fund.
That, in accordance with s 90MT(1)(a) of the Act:
(a)The wife (or the wife’s administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)The entitlement of the husband in the AMP North Personal Superannuation Fund (or the entitlement of such other person who becomes entitled…

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.

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Details

Case: [2016] FamCA 55
Decision Date: 9 February 2016

CaseChat Overview and Summary

In the matter of *Warford and Warford*, Johnston J of the Family Court of Australia made orders concerning the property settlement between the husband and wife. The dispute involved the division of assets, including real property and superannuation interests, and the indemnification of the wife by the husband in relation to liabilities of a company.

The court was required to determine the appropriate division of the parties' property and superannuation interests, including the allocation of a specific amount from the husband's superannuation fund to the wife. Further issues included the mechanism for the sale of the husband's property in the event of non-payment of a sum ordered, the indemnification of the wife against company liabilities, and the release of both parties from further claims against each other. The court also considered the operative commencement date of its orders and the procedure for implementing the superannuation split.

Johnston J applied the principles of property settlement under the *Family Law Act 1975* (Cth), including section 79 for the division of property and section 90MT for superannuation interests. The court ordered the husband to pay a sum of money to the wife within 60 days, with a provision for the sale of his property if he failed to comply. A base amount of $40,000 was allocated from the husband's superannuation interest to the wife, with directions for the trustee to calculate and pay this entitlement. The court declared each party the sole owner of other property in their possession and ordered the husband to indemnify the wife against liabilities of Warford Pty Limited. Finally, both parties were released from all further claims against each other.

Orders

Orders of the court

That within 60 days the husband shall pay to the wife the sum of $122 152.

That in the event that the husband should fail to comply with the above order he shall forthwith do all things and sign all documents necessary to sell his property at B Street, Suburb A for the best price reasonably able to be obtained.

That the net proceeds of sale of the said property shall be paid as follows:

(a) In payment of agent’s commission and costs of sale including legal costs of sale;

(b) In payment of all monies outstanding on the mortgage over the said property;

(d) In payment of the balance to the husband.

That the Court allocates, as required by s 90MT(4) of the Family Law Act 1975 (Cth), (“the Act”) a base amount of $40 000 to Ms Warford (“the wife”) out of the interest of Mr Warford (“the husband”) in the AMP North Personal Superannuation Fund.

That, in accordance with s 90MT(1)(a) of the Act:

(a) The wife (or the wife’s administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

(b) The entitlement of the husband in the AMP North Personal Superannuation Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interest) is correspondingly reduced by force of this order.

That the trustee of the AMP North Personal Superannuation Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:-

(a) Calculate, in accordance with the requirements of the Act the entitlement awarded to the wife in the immediately preceding clause of this order; and

(b) Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the AMP North Personal Superannuation Fund.

That this order has effect from the operative time and the operative time is four business days after the date of commencement of these orders.

That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the wife’s choosing in accordance with the SIS Regulations.

That the Court notes:

(a) The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and

(b) Any payments from the husband’s superannuation interest in the AMP North Personal Superannuation Fund made after the trustee has created a new interest in the wife’s name in the AMP North Personal Superannuation Fund are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.

10.

That pursuant to s 79 of the Act each party is declared to be the sole owner of all other property and superannuation in their possession and/or control respectively.

11.

That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

12.

That the husband shall indemnify, and keep indemnified, the wife in relation to all liabilities of Warford Pty Limited and its business.

13.

That both the husband and the wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.

14.

That all exhibits be released.

15.

That each party have leave to re-list these proceedings by arrangement with the Associate to Johnston J in relation to implementation of these orders.

16.

That these orders not commence operation until 3 March 2016.

17.

That both parties have leave to re-list these proceedings by arrangement with the Associate to Johnston J not later than 2 March 2016 for any further submissions in relation to the form of the orders only.

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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