Padbury & Wendon  FamCAFC 41 (6 March 2019)
Mr Padbury appeals from orders for the settlement of property, dismissing his application for a stay plus costs.
The parties had begun living together in 2005 they then separated in 2016. Mr Padbury was a public servant; he began making contributions to his super fund in 1987. He became injured on duty, therefore he ended employment in 2014. He was successful in applying for the hurt on duty pension application.
The primary Judge observed the “value” of the fund was an independent issue to how the fund “might be treated,” or “contributions towards it assessed.” The approach to the valuation of the superannuation interest was in accordance with the Family Law (Superannuation) Regulations 2001 (Cth); this produced a calculation of $1,341,059. The parties’ net non-superannuation property was valued at $2,148,700, this means that of a total net property pool of some $3.5 million, a significant percentage included Mr Padbury’s hurt on duty pension.
The heart of the appeal claims that the primary judge “erred in principle by failing to give proper, genuine and realistic consideration to the merits of the competing claims made in relation to the hurt on duty pension.” Furthermore, Mr Padbury contributed to the fund for 18 years before living with Ms Wendon, however, the trial reasons also incorrectly state for a period of “some six to seven years.”
Ms Wendon the respondent conceded the error, the matters the primary judge said required consideration did not receive it.
APPEAL – PROPERTY
- Appeal against property settlement orders including orders splitting Mr Padbury’s hurt on duty pension.
- Heart of appeal the judge “erred in principle by failing to give proper, genuine and realistic consideration to the merits of the competing claims made in relation to the hurt on duty pension.
- Errors of fact.
Did the primary judge fail to consider the special features of the pension or the parties’ contributions to it?
Appealable error established and appeal conceded. Orders made by consent in lieu of those under appeal.
There were factual errors of the primary judge concerning the period during which the Mr Padbury contributed to his super fund before the start of the relationship. It was established Mr Padbury contributed to the fund for 18 years prior to living with Mrs Wendon, however, the trial reasons incorrectly state for a period of “some six to seven years” however, Mr Padbury raised this only on appeal and failed to raise this issue at trial.
Furthermore, the court states the arguments in relation to the superannuation ‘were at best cursory and misguided.’ The conduct in which the trial was commenced added to the faults apparent in the trial reasons. The primary judge still of course has a responsibility to tackle pertinent considerations, however, in light of the above the assistance offered to the judge was not sufficient with that task.
It was established the primary judge failed to attend to important relevant considerations; the court was satisfied with the basis for appeal.
Both parties then agreed on orders to be made in lieu of those made by the court below. The parties then applied for costs certificates for the appeal in accordance with the Federal Proceedings (Costs) Act 1981 (Cth).
APPEAL – COSTS
- No orders for costs made.
- Both parties applied for costs certificates.
Should costs certificates be awarded to both parties due to the primary judge failure to focus on important relevant considerations?
The manner of the trial contributed to errors. Applications for costs certificates rejected.
It was determined the manner in which the trial was commenced added to the faults apparent in the trial reasons. This went against the issuance of costs certificates significantly; furthermore, the parties are far from being financially disadvantaged.
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law (Superannuation) Regulations 2001 (Cth)
#Appeals #Property #Costs