Event and Time
Event Description
The case involves an appeal regarding property settlement orders made by a trial judge in the Federal Circuit Court of Australia on 5 October 2018. The appeal focused on the inclusion of capitalised non-commutable pension payments in the asset pool despite neither party requesting a splitting order for those entitlements.
Application and Claims
The parties to the dispute sought a resolution to the inclusion of non-commutable pension payments in property settlement orders. The appeal aimed to address alleged errors of law made by the trial judge in his ruling regarding the treatment of these pension entitlements.
Judicial Decisions
The Full Court found that the trial judge had erred in law by including the capitalised amount of the non-commutable pension payments without a splitting order being requested or made. The appeal was allowed, and consent orders were established reflecting a just and equitable division of assets (55% in favor of the appellant). Costs certificates were also granted to both parties.
Dispute Points and Legal Basis
Dispute Points
- Appellant's Claims:
- Argued that the trial judge incorrectly included pension payments in the asset pool without a splitting order. - Contended that this approach was not supported by the Family Law Act 1975 (Cth), particularly Section 90MT(2), which outlines conditions for splitting orders.
- Respondent's Claims:
- Acknowledged the trial judge's errors and agreed with the appellant on the resolution.
- Evidence and Reasoning:
- The Full Court referenced past cases (Welch & Abney; Surridge & Surridge) to establish the legal precedent for not including pension entitlements without a splitting order. - It was agreed that removing the pension entitlements from the asset pool led to a fairer division of assets.