Wooley and Kingston - [2007] FamCA 1509

FAMILY COURT OF AUSTRALIA

WOOLEY & KINGSTON

[2007] FamCA 1509

FAMILY LAW – PROPERTY – Variation of final orders made prior to legislation introducing splitting order – Notice to trustee – Power to make

Family Law Act 1975 (Cth)

APPLICANT WIFE:

Ms Wooley

RESPONDENT HUSBAND:

Mr Kingston

FILE NUMBER:

MLC

12963

2007

DATE DELIVERED:

29 November 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Justice Brown

HEARING DATE:

29 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr. Davis

SOLICITOR FOR THE APPLICANT:

Waters Timms

SOLICITOR FOR THE RESPONDENT

No Appearance

Orders

That service of this application and the supporting affidavit of Mr W sworn 29 November, 2007 on the husband be dispensed with.
That compliance with all necessary rules of the court including Rule 10.16 of the Family Law Rules2004, be dispensed with and all times abridged to enable this application to be heard forthwith and that the applicant serve a copy of this order on Australian Super Pty. Ltd., the trustee of Australian Super, as soon as practicable.
That the trustee of Australian Super not make any splittable payments in respect of the husband’s interest in the aforesaid superannuation fund, save payments to the wife pursuant to the splitting order contained in paragraph (4) of these orders.
That paragraphs (8) and (9) of the orders of Judicial Registrar Nikakis made on 20 October, 1999 be varied by substituting for such orders the following orders:
(8)Pursuant to s.90MT(1B) of the Family Law Act1975 (Cth) whenever a splittable payment becomes payable in respect of the husband’s interest in Australian Super, the wife’s legal representatives on behalf of the wife, then be paid 100% of such splittable payments and there be a corresponding reduction in the entitlement the husband would have received in the aforesaid superannuation fund but for this order.
(9)(a) The operative time for paragraph (8) of these orders in respect of the husband’s interest in Australian Super is four business days after service of the sealed order of the court on Australian Super Pty. Ltd., the trustee of Australian Super; and
(b)These orders bind the trustees of Australian Super to observe its obligations as trustee under the Act and the Family Law Superannuation Regulations 2001.
That until further order, the husband by himself, his employees, his servants and agents be and are hereby restrained from withdrawing, receiving or howsoever otherwise dealing, or attempting so to do, with his interest in Australian Super.
That until further order, the husband by himself, his employees, his servants and agents be and are hereby restrained from doing any act or thing which would prevent the wife, her heirs, executors, her administrators or nominees from receiving the benefits in Australian Super to which she is entitled pursuant to the orders of the court.
That each party and the trustee have liberty to apply to the court for such orders and directions as may be necessary for the implementation of the orders affecting the superannuation interests of the husband.
That…

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 Wooley and Kingston

Details

AGLC: Wooley and Kingston [2007] FamCA 1509
Case: [2007] FamCA 1509
Decision Date: 29 November 2007

CaseChat Overview and Summary

In the matter of *Wooley and Kingston*, Justice Brown of the Family Court of Australia considered an application by the wife to vary existing orders concerning the husband's superannuation interests. The dispute centred on the wife's entitlement to a portion of the husband's superannuation, specifically his interest in Australian Super. The wife sought to vary previous orders to ensure she received 100% of any splittable payments from the husband's Australian Super interest.

The primary legal issues before the court were whether to dispense with service requirements and time limits to hear the application urgently, and crucially, whether to vary the existing orders to direct the trustee of Australian Super to pay 100% of splittable payments to the wife. The court also had to consider whether to restrain the husband from dealing with his superannuation interest and to bind the trustee to the new payment arrangements.

Justice Brown reasoned that dispensing with service and time limits was necessary to enable the application to be heard forthwith, given the circumstances. The court applied section 90MT(1B) of the *Family Law Act 1975* (Cth) to vary the previous orders. This section permits the court to make orders for the payment of superannuation interests in accordance with the *Family Law (Superannuation) Regulations 2001*. The court ordered that 100% of splittable payments from the husband's Australian Super interest be paid to the wife's legal representatives whenever they became payable, with a corresponding reduction in the husband's entitlement. The court also made orders restraining the husband from dealing with his superannuation interest and binding the trustee to observe its obligations. Liberty was granted to the trustee to apply to set aside the orders within 28 days of service.

Orders

Orders of the court

That service of this application and the supporting affidavit of Mr W sworn 29 November, 2007 on the husband be dispensed with.

That compliance with all necessary rules of the court including Rule 10.16 of the Family Law Rules 2004, be dispensed with and all times abridged to enable this application to be heard forthwith and that the applicant serve a copy of this order on Australian Super Pty. Ltd., the trustee of Australian Super, as soon as practicable.

That the trustee of Australian Super not make any splittable payments in respect of the husband’s interest in the aforesaid superannuation fund, save payments to the wife pursuant to the splitting order contained in paragraph (4) of these orders.

That paragraphs (8) and (9) of the orders of Judicial Registrar Nikakis made on 20 October, 1999 be varied by substituting for such orders the following orders:

(8) Pursuant to s.90MT(1B) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the husband’s interest in Australian Super, the wife’s legal representatives on behalf of the wife, then be paid 100% of such splittable payments and there be a corresponding reduction in the entitlement the husband would have received in the aforesaid superannuation fund but for this order.

(9) (a) The operative time for paragraph (8) of these orders in respect of the husband’s interest in Australian Super is four business days after service of the sealed order of the court on Australian Super Pty. Ltd., the trustee of Australian Super; and

(b) These orders bind the trustees of Australian Super to observe its obligations as trustee under the Act and the Family Law Superannuation Regulations 2001.

That until further order, the husband by himself, his employees, his servants and agents be and are hereby restrained from withdrawing, receiving or howsoever otherwise dealing, or attempting so to do, with his interest in Australian Super.

That until further order, the husband by himself, his employees, his servants and agents be and are hereby restrained from doing any act or thing which would prevent the wife, her heirs, executors, her administrators or nominees from receiving the benefits in Australian Super to which she is entitled pursuant to the orders of the court.

That each party and the trustee have liberty to apply to the court for such orders and directions as may be necessary for the implementation of the orders affecting the superannuation interests of the husband.

That there be liberty reserved to the trustee of Australian Super to apply within 28 days of service on it to set these orders aside.

That all extant applications be otherwise dismissed.

10.

That these proceedings be removed from the List of matters awaiting finalisation.

11.

That the reasons for judgment this day be transcribed and that copies be made available to the parties.

12.

That the preparation of these orders be expedited forthwith.

13.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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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