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Wylie and Russo

Wylie and Russo

Case [2015] FCCA 3257 11 December 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WYLIE & RUSSO

[2015] FCCA 3257

Catchwords:
FAMILY LAW – De facto property division – date of separation – defined benefit superannuation scheme in payment phase – no splitting order sought – treatment of superannuation benefit.

Legislation:

Family Law Act 1975, ss.4, 4AA, 75, 79, 90SF & 90SM.

Moby v Schulter [2010] FamCA 748
Jonah v White [2011] FamCA 221
Jacob v Lawrence [2013] FamCA 188
Sinclair v Whittaker [2013] FamCAFC 129
Cadman v Hallett (2014) 52 Fam LR 149
Aitken v Deakin [2010] FMCAfam 35
Stanford (2012) FLC 93-518
Watson v Ling (2013) 49 Fam LR 303
Bevan v Bevan (2013) 279 FLR 1
Vass v Vass [2015] FamCAFC 51
Semperton v Semperton (2012) 47 Fam LR 626
B v B [2005] FamCA 1034
PJM v STM (2005) FLC 93-242
Hayton v Bendle (2010) 43 Fam LR 602
Craig v Rowlands (2013) 49 Fam LR 136
T v T (2006) 35 Fam LR 181
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Applicant:

MR WYLIE

Respondent:

MS RUSSO

File Number:

ADC 1715 of 2014

Judgment of:

Judge Cole

Hearing dates:

14 & 15 July 2015 and 13 August 2015

Date of Last Submission:

13 August 2015

Delivered at:

Adelaide

Delivered on:

11 December 2015

REPRESENTATION

Solicitor for the Applicant:

Ms D Morosini

Solicitors for the Applicant:

Di Morosini & Co

Counsel for the Respondent:

Mr J Bowler

Solicitors for the Respondent:

Lee & Partners

ORDERS

That the applicant pay to the respondent the sum of ONE HUNDRED AND THREE THOUSAND DOLLARS ($103,000.00) within thirty (30) days of the date of this Order.
That the applicant forthwith transfer to the respondent:
(a)his interest in the property situated at Property A; and
(b)his interest in the burial plot.
That the respondent indemnify the applicant and keep him indemnified in respect of all outgoings on the said assets referred to in paragraph 2 hereof.
That any interest the applicant may have in:
(a)the property situated at Property C;
(b)the property situated at Property P;
(c)the property situated at Property T;
(d)the respondent’s savings; and
(e)the respondent’s superannuation benefit with (omitted) Super and (omitted) Super;
vest in the respondent absolutely with the respondent to indemnify the applicant and keep him indemnified in respect of all associated outgoings and liabilities thereafter.
That any interest the respondent may have in:
(a)the property situated at Property R;
(b)the Mercedes-Benz in the applicant’s possession;
(c)the applicant’s share portfolio;
(d)the applicant’s savings; and
(e)the applicant’s (omitted) superannuation benefit;
vest in the applicant absolutely with the applicant to indemnify the respondent and keep her indemnified in respect of all associated outgoings and liabilities thereafter.
That each party otherwise retain the property in their possession and indemnify the other in respect of any liabilities arising therefrom.
That the proceedings be otherwise dismissed.
That there be liberty to apply as to consequential orders.

IT IS NOTED that publication of this judgment under the pseudonym Wylie & Russo is approved…

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 Wylie and Russo

Details

AGLC: Wylie and Russo [2015] FCCA 3257
Case: [2015] FCCA 3257
Decision Date: 11 December 2015

CaseChat Overview and Summary

In this matter before Judge Cole, the applicant and respondent were involved in a dispute concerning the division of property. The specific nature of the dispute, such as whether it arose from a marriage or de facto relationship, is not detailed, but the court's orders indicate a comprehensive division of various assets and liabilities between the parties.

The court was required to determine how to equitably distribute a range of assets, including real estate at multiple properties (Property A, C, P, T, and R), a motor vehicle, savings, superannuation benefits, and a burial plot. The orders also address the allocation of liabilities and outgoings associated with these assets, as well as the indemnification of each party by the other in respect of specific liabilities.

Judge Cole ordered a significant transfer of assets and liabilities. The applicant was ordered to pay a sum of money to the respondent and transfer his interests in Property A and a burial plot, with the respondent indemnifying the applicant for associated outgoings. Conversely, the respondent was to receive absolute vesting of the applicant's interests in Property C, Property P, Property T, savings, and superannuation, with the respondent assuming all associated liabilities. The respondent's interests in Property R, a Mercedes-Benz, savings, and superannuation were to vest absolutely in the applicant, who would then indemnify the respondent for related outgoings. Each party was to retain other property in their possession, with mutual indemnification for liabilities. The proceedings were otherwise dismissed, with liberty to apply for consequential orders.

Orders

Orders of the court

That the applicant pay to the respondent the sum of ONE HUNDRED AND THREE THOUSAND DOLLARS ($103,000.00) within thirty (30) days of the date of this Order.

That the applicant forthwith transfer to the respondent:

(a) his interest in the property situated at Property A; and

(b) his interest in the burial plot.

That the respondent indemnify the applicant and keep him indemnified in respect of all outgoings on the said assets referred to in paragraph 2 hereof.

That any interest the applicant may have in:

(a) the property situated at Property C;

(b) the property situated at Property P;

(d) the respondent’s savings; and

(e) the respondent’s superannuation benefit with (omitted) Super and (omitted) Super;

vest in the respondent absolutely with the respondent to indemnify the applicant and keep him indemnified in respect of all associated outgoings and liabilities thereafter.

That any interest the respondent may have in:

(a) the property situated at Property R;

(b) the Mercedes-Benz in the applicant’s possession;

(d) the applicant’s savings; and

(e) the applicant’s (omitted) superannuation benefit;

vest in the applicant absolutely with the applicant to indemnify the respondent and keep her indemnified in respect of all associated outgoings and liabilities thereafter.

That each party otherwise retain the property in their possession and indemnify the other in respect of any liabilities arising therefrom.

That the proceedings be otherwise dismissed.

That there be liberty to apply as to consequential orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Wylie and Russo [2015] FCCA 3257

Most Recent Citation

Russo & Wylie [2016] FamCAFC 227

Cases citing this decision · 1 of 1 shown

Russo & Wylie
[2016] FamCAFC 227

…[2015] FCCA 3257…

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Cases cited in this decision · 11 of 11 shown

Keehan & Keehan
[2015] FamCAFC 122 Para 3

…The Full Court in Keehan v Keehan [2015] FamCAFC 122 stated: The court’s power is not confined by any “steps“ or “stages“, nor is it exhausted by reason of the consideration of any or all of the so-called “steps“ or “stages“. Having without error determined that it is just and equitable to make some orders altering e…
Vass & Vass
[2015] FamCAFC 51 Para 5

…issions that following that decision, add backs were no longer a relevant consideration. I note however the comments of the Full Court in Vass v Vass [2015] FamCAFC 51 wherein: There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back int…
Bevan & Bevan
[2014] FamCAFC 19 Para 4

…Counsel refers me to Bevan v Bevan (2013) 279 FLR 1, where the majority stated: We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus i…
JACOB & LAWRENCE
[2013] FamCA 188 Para 17

…The third authority was Jacob v Lawrence [2013] FamCA 188, a decision of Macmillan J.…
Stanford v Stanford
[2012] HCA 52 Para 5

…y suggestion that the decision of Bevan & Bevan (2013) FLC 93–545 — or, more particularly, the decision of the High Court in Stanford & Stanford(2012) 247 CLR 108 — is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property…
Jonah & White
[2011] FamCA 221 Para 16

…Counsel also provided me with a copy of Jonah v White [2011] FamCA 221. This is a decision of Murphy J. Again in that matter the applicant sought a declaration that there was a de facto relationship whereas the respondent denied any such relationship existed. Justice Murphy accepted that the parties had a long-stan…
Moby & Schulter
[2010] FamCA 748 Para 14

…A copy of Moby v Schulter [2010] FamCA 748, a decision of Mushin J was tendered. In that matter, the parties to the proceedings sought a declaration as to whether a de facto relationship existed between them at any time, and if so for what periods. The applicant asserted that a de facto relationship existed between…
Aitken & Deakin
[2010] FMCAfam 35 Para 17

…In Aitken v Deakin [2010] FMCAfam 35, McGuire FM (as he then was) put it succinctly when he stated: The concept of separation in both a legal and emotional sense is sometimes one difficult to isolate in time and definition. In most cases the point of time is determined by physical separation. There is public recogni…
B & B
[2005] FamCA 1034 Para 4

…The applicant’s counsel refers to Semperton v Semperton (2012) 47 Fam LR 626 and B v B [2005] FamCA 1034 and submits the valuation agreed by the parties is a valuation of an income stream. That it cannot be split and should when considering this matter be regarded as a financial resource.…
Sinclair & Whittaker
[2013] FamCAFC 129 Para 21

…I also refer to Sinclair v Whittaker [2013] FamCAFC 129, a decision involving an appeal from a determination that the parties had lived in a de facto relationship from August 2004 until September 2010. The appeal involved a number of grounds including: a)that the primary Judge had erred in rejecting the contemporaneo…
[2013] FAMCAFC 226
[2013] FAMCAFC 226 Para 4

…Counsel refers me to Bevan v Bevan (2013) 279 FLR 1, where the majority stated: We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is no…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
4, 4AA, 75, 79, 90SF 6 mentions (from Para 1)