Xu-Mao and Xu-Mao (No. 2)

[2009] FamCA 376

FAMILY COURT OF AUSTRALIA

XU-MAO & XU-MAO (NO. 2) [2009] FamCA 376

FAMILY LAW – PROPERTY – Undefended hearing – Superannuation

Family Law Act 1975 (Cth)

APPLICANT: Mr Xu-Mao

RESPONDENT: Ms Xu-Mao

FILE NUMBER: MLC 1074 of 2008

DATE DELIVERED: 8 MAY 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 8 MAY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR NEHMY

SOLICITOR FOR THE APPLICANT: SCHETZER CONSTANTINOU

THE RESPONDENT: NO APPEARANCE

Orders

1. That the children V born … September 1994 and K born … May 2000 live with the husband.

2. That the husband have sole responsibility for the children.

3. That the children spend time with and communicate with the wife by agreement between the parties.

4. That a base amount of $95,000 is allocated, as required by s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”) to the wife out of the husband’s interest in the R Super Fund, (Member number …) (“the Fund”).

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

   (a)the wife is entitled to be paid the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001;

   (b)the husband’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to payments out of the husband’s interest in the Fund, is correspondingly reduced.

6. That the Trustee of the Fund, R Limited, (“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 and the Family Law (Superannuation) Regulations 2001, the entitlement for the wife created by paragraph 2 of this order; and

   (b)pay the entitlement whenever the Trustee makes a splittable payment out of the husband’s interest in the Fund.

7. That this order have effect from the operative time and the operative time is five (5) days from the date of service of these orders on the Fund.

8. That all outstanding application be otherwise dismissed and all proceedings be removed from the list of cases awaiting a hearing.

IT IS NOTED that publication of this judgment under the pseudonym Xu-Mao & Xu-Mao is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1074  of 2008

MR XU-MAO

Applicant

And

MS XU-MAO

Respondent

REASONS FOR JUDGMENT

1. This is a further set of reasons as a result of the matter being adjourned from 24 April 2009 to today to enable the husband to obtain further material. 

2. I have accepted and marked as an exhibit, a letter from the trustee of the husband’s superannuation fund.  That letter acknowledges that the solicitor for the wife sent to the trustee a copy of proposed orders which I indicated that I was prepared to make on the basis that the trustee would accept them.  The trustee has accepted and said that they would implement the orders.

3. I am now in a position to finalise all matters outstanding between the parties and having regard to what I said on 24 April 2009, I find that the orders are just and equitable in the circumstances.  In addition, I make final orders in relation to the children’s matters as I indicated on a previous occasion.

I certify that the preceding Three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  13 May 2009