X & X - [2005] FMCAfam 294

FEDERAL MAGISTRATES COURT OF AUSTRALIA

X & X

[2005] FMCAfam 294

FAMILY LAW – Property – global or asset by asset approach – whether global approach appropriate in 5.5 year marriage with one child – global approaches adopted, with superannuation funds dealt with separately from ‘property’.

FAMILY LAW – Property – contributions – significance of initial contributions in 5.5 year marriage with one child – significant initial contributions.

FAMILY LAW – Property – contributions – superannuation – splitting order – date of operative effect – no date of valuation in evidence as value agreed at trial – date of trial appropriate date for operative effect.

Family Law Act 1975, ss.79, 75, 90mc

Brandt & Brandt (1997) FLC ¶92-758
C & C [2005] FamCA 429
Coventry & Coventry and Smith (2004) FLC ¶93-184
Crapp v Crapp (1979) FLC ¶90-615
Davut and Ralf (1994) FLC ¶92-503
Dickson and Dickson (1999) FLC ¶92-843
Evans and Public Trustee of WA (1991) FLC ¶92-223
Farmer & Bramley (2000) FLC ¶93-060
Farnell and Farnell (1996) FLC ¶92-681
Figgins & Figgins (2002) FLC ¶93-122
G & G (1984) FLC ¶91-582
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC ¶93-143
King v Kemp (1996) FLC ¶92-673
Law-Smith and Senior (1989) FLC ¶92-050
Lenehan and Lenehan (1987) FLC ¶91-814
McLay and McLay (1996) FLC ¶92-667
McMahon and McMahon (1995) FLC ¶92-606
Norbis & Norbis (1986) FLC ¶91-712
Pierce & Pierce (1999) FLC ¶92-844
Prpic and Prpic (1995) FLC ¶92-574
Russell & Russell (1999) FLC ¶92-877
Stay v Stay (1997) FLC ¶92-751
W & W [2005] FamCA 430
Zyk, RM and Zyk, D (1995) FLC ¶92-644

Applicant:

Respondent:

File Number:

MLM6004 of 2004

Judgment of:

Riethmuller FM

Hearing date:

31 January 2005

Date of Last Submission:

31 January 2005

Delivered at:

Melbourne

Delivered on:

8 June 2005

REPRESENTATION

Counsel for the Applicant:

Ms Smallwood

Solicitors for the Applicant:

Pearsons

Counsel for the Respondent:

Mr Weil

Solicitors for the Respondent:

Rennick & Gaynor

ORDERS

That the husband pay to the wife the sum of $217,500 within 30 days, and in consideration of, and contemporaneous therewith:
(a)the wife must do all acts and execute all documents submitted by the husband to transfer to the husband any interest of the parties in the land being the whole of the land situated at 105 W Road, in the State of Victoria;
(b)the husband secure the release of the wife from any mortgage or other security with respect to the property; and
(c)the husband do indemnify the wife and keep her indemnified from all debts, liabilities and obligations of the wife relating to or arising out of:
(i)the property; and
(ii)the mortgage presently encumbering the property; and
(iii)from all actions, proceedings, costs, claims and expenses in respect of the property.
In the event that the husband is unable or unwilling to comply with order 1, then:
(a)The parties must do all acts and execute all documents necessary to sell the property by public auction to be held within…

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

AGLC: X & X [2005] FMCAfam 294
Case: [2005] FMCAfam 294
Decision Date: 8 June 2005

CaseChat Overview and Summary

In the matter of X & X, the Federal Circuit and Family Court of Australia was called upon to resolve a property settlement dispute between a married couple following the dissolution of their marriage. The couple had been married for 5.5 years and had one child. The primary issue before the court was the appropriate approach to take in dividing the property of the parties, particularly whether a global or asset-by-asset approach was most suitable. Additionally, the court had to determine the significance of initial contributions made by each party to the marriage and establish the date for the operative effect of a superannuation splitting order.

The court found that a global approach was appropriate in this case due to the relatively short duration of the marriage and the presence of one child. The court acknowledged the significant initial contributions made by both parties and addressed the issue of the date for the operative effect of the superannuation splitting order. Since the value of the superannuation fund was agreed upon at the trial, the court determined that the date of the trial was the appropriate date for the operative effect of the order.

The court ordered that the husband pay the wife a lump sum of $217,500, with specific terms for the transfer of property interests and the release of the wife from any mortgage or security on the property. The court also ordered a splitting of the husband's superannuation fund, with the wife receiving a specific amount from each future payment. The husband was directed to transfer his interest in Coles Myer shares to the wife and to provide a list of keepsakes, memorabilia, photographs, and gifts to the wife, allowing her to choose which items she wished to receive. The court concluded by declaring that each party was solely entitled to all other property not specifically addressed in the orders and ordered the husband to pay spousal maintenance to the wife until June 2007.

Orders

Orders of the court

That the husband pay to the wife the sum of $217,500 within 30 days, and in consideration of, and contemporaneous therewith:

(a) the wife must do all acts and execute all documents submitted by the husband to transfer to the husband any interest of the parties in the land being the whole of the land situated at 105 W Road, in the State of Victoria;

(b) the husband secure the release of the wife from any mortgage or other security with respect to the property; and

(c) the husband do indemnify the wife and keep her indemnified from all debts, liabilities and obligations of the wife relating to or arising out of:

(i) the property; and

(ii) the mortgage presently encumbering the property; and

(iii) from all actions, proceedings, costs, claims and expenses in respect of the property.

In the event that the husband is unable or unwilling to comply with order 1, then:

(a) The parties must do all acts and execute all documents necessary to sell the property by public auction to be held within 75 days of these orders.

(b) The reserve price is to be such amount as nominated by the husband.

(c) In the event that the property does not sell at auction, it be auctioned again within 120 days and there be no reserve price at the auction.

(d) Each party has the right to bid at the auction.

(e) That the proceeds of sale be applies as follows:

(i) to the discharge of all mortgages or encumbrances presently affecting the property;

(ii) to the payment of the sale expenses;

(iii) to payment of the wife of the sum of $217,500 together with interest (at the default rate pursuant to the court rules) from the time of payment provided for in order 1; and

(iv) the balance to the husband

With respect to the husband’s superannuation fund:

(a) Whenever a splittable payment is payable in respect of the superannuation interest of BX in the AMT superannuation fund:

(i) CX is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $129,930 at the operative time of 31 January 2005; and

(ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.

(b) Within 7 days after CX receives the payment split notice from the trustee under regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 she must do all things and execute all documents to make a request pursuant to regulation 7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994, for the trustee of the fund to either:

(i) roll over or transfer the transferable benefits of CX to a fund nominated by her in writing; or

(ii) do all things and execute all documents (including making a request pursuant to regulation 7A.05 of those Regulations) for the fund to create a new interest in her name in the fund, provided that the fund rules allow her to create such an interest.

That within 28 days the husband transfer all of his right title or interest in the Coles Myer shares to the wife.

With respect to the child’s keepsakes, memorabilia, photographs and gifts (including, but not limited to christening gifts, plates, bowls, cutlery, time capsules, embroidery and announcements and documents):

(a) within 7 days the husband provide to the wife a list of such items divided into two sections headed ‘Section A’ and ‘Section B’;

(b) that within 7 days of receiving the list, the wife notify the husband as to whether she elects to receive the items in ‘Section A’ or ‘Section B’;

(c) that the husband deliver up to the wife all of the items listed in the Section nominated by the wife within 7 days of receiving notice of the section of the list that she has nominated; and

(d) each party make available to the other copies of any items listed that are within their possession, within 7 days of any request, at the expense of the requesting party (provided the request is made within 28 days)

Each party be solely entitled to the exclusion of the other to all other entitlements and property (including choses-in-action) owned by or in the possession of such party as at the date of these orders, not otherwise dealt with in these orders.

That the husband pay spousal maintenance to the wife in the sum of $1088.33 per calendar month payable monthly in advance each month up to and including June 2007, and that thereafter spousal maintenance cease.

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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