ALLINGTON & HADDEN

[2020] FCCA 3629

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLINGTON & HADDEN [2020] FCCA 3629

Catchwords:
FAMILY LAW – Property – application for property adjustment – where initial plea for relief incapable of prosecution – where Respondent has never appeared before the Court nor filed any material – superannuation splitting order sought – where mother is not in paid employment and has fulltime care of the three children – where Court satisfied the claim for relief is made out.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.05

Family Law Act 1975 (Cth), Pts.VIII, VIIIAB, VIIIB, ss.75, 79

Cases cited:

Allesch & Maunz [2000] HCA 40

Stanford & Stanford (2012) 247 CLR 108

Kennon & Kennon (1997) FLC 92-757

Applicant: MS ALLINGTON

Respondent: MR HADDEN

File Number: PAC 4488 of 2019

Judgment of: Judge Harman

Hearing date: 21 July 2020

Delivered at: Parramatta

Delivered on: 21 July 2020

REPRESENTATION

No appearance for the Applicant

No appearance for the Respondent

ORDERS

1. Orders are made in accordance with the Minute of Orders marked Exhibit ‘A’ and attached hereto.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4488 of 2019

MS ALLINGTON

Applicant

And

MR HADDEN

Respondent

REASONS FOR JUDGMENT

1. These proceedings have a slight history before the Court. 

2. All that remains to be addressed in the proceedings today is a plea for relief for with respect to adjustment of interests in property.

3. When the matter was commenced by an Application Initiating Proceedings filed 11 September 2019, there was also included a plea for relief with respect to parenting.  That aspect of the case was heard and determined on 7 April 2020 on a final and undefended basis.  All that remains to dispose of, as it were, is the Application for Property Adjustment. 

4. The Application for Property Adjustment was not dealt with on the last occasion as the plea for relief was framed as:

   Superannuation split in favour of the Wife and Applicant.

5. Such a plea for relief is incapable of prosecution.  An Order in those terms cannot be made, and service of such an Application does not afford due process to the Respondent, who does not and never has appeared.

6. On that basis, the matter required adjournment as the plea for relief was non-specific and incapable of being ordered by the Court.  That deficiency has now been cured and remedied, with the Court’s permission, by a Minute of Orders provided to Chambers pursuant to directions made on 7 April 2020.  That Minute was received on 8 May 2020, and now proposes a clear and specific Order with respect to superannuation splitting.  The Minute seeks a split of an amount which is approximately 80 per cent of the superannuation fund presently held by the Respondent.

Procedural history

1. There is no appearance today by or on behalf of either party. 

2. There has never been an appearance in the proceedings on behalf of the Respondent. 

3. The Respondent has never filed any document in the proceedings. 

4. From the material filed, I am satisfied the Respondent has been given notice of the proceedings through personal service or otherwise. 

5. The matter has been before the Court now on three occasions.  As the Respondent has not appeared on any of those occasions, I can only infer that the Respondent does not wish to be heard. 

6. As the High Court has discussed in Allesch & Maunz [2000] HCA 40, what is required of the Court to afford due process to parties is to afford to them a reasonable opportunity, in all of the circumstances, to be heard, allowed to present evidence, to test evidence and to place submissions before the Court.

7. I am satisfied Mr Hadden has been afforded that reasonable opportunity.  That is so in light of the fact that the proceedings have been on foot now for some 10 months and, during that continuation of the case, no attempt has been made by Mr Hadden to engage.

8. The Applicant does not, through her legal representative, appear today. However, in the circumstances, I am satisfied that the matter can and should proceed. The only alternatives would be either dismissal for want of prosecution, (inevitably leading to an Application pursuant to rule16.05 Federal Circuit Court Rules and potentially a relisting, a redetermination of the issue and further cost and expense to all) or an adjournment of the proceedings with the same net effect. 

9. The Court has attempted to contact the Applicant’s legal representatives without success.  The only telephone number available is a mobile phone.  It diverted directly to voicemail. 

10. The matter is dealt with today by telephone as a consequence of the COVID-19 pandemic.  Details for today’s listing were forwarded to both parties on 7 July 2020, in the case of the Applicant’s legal representatives, by email.  There is nothing to suggest that the email has not been received.  It has not, for example, “bounced back”.  Further delay, cost and uncertainty are not things which should be visited upon Ms Allington. 

11. What is clear and apparent from the material that is filed, and which I will enumerate shortly, is that the property, if it might be so described for present purposes, available for distribution between these parties is frugal.  That is highly relevant as regards Ms Allington having the ongoing care of the three children of the relationship, who, as a consequence of the Orders made on 7 April 2020, live very much in the full-time care of Ms Allington.

12. But for the provisions of Part VIIIB of the Family Law Act 1975 (Cth), there would be no property for division between these parties. The only asset - using all of those terms in their loosest sense - available for distribution between these parties, or consideration thereof, is a superannuation interest of the Respondent. I have referred to that as an asset, not to ignore the reality that superannuation is, in reality, a financial resource on the basis of the provisions of Part VIIIB, which allows and permits the court, in proceedings under Part VIII and VIIIAB of the Family Law Act (supra) respectively, to deal with and treat superannuation interests as though they are property, (and to thus apply the relevant provisions, in this case, sections 79 and 75(2) of the Family Law Act (supra) respectively, to that property).

13. Accordingly, I intend to proceed to conclude the matter.  It is the preferable course.  That is so on the basis of an assumption that the Minute of Orders has been served upon the superannuation trustee. 

Material considered in dealing with Proceedings

1. I have read and considered each of the documents filed in the proceedings.  That comprises, for today’s purposes:

   a)The Application Initiating Proceedings;

   b)Affidavit; and,

   c)Financial Statement (all filed 11 September 2019);

   d)The Minute of Orders proposed, which will, for today’s purposes, be exhibit A; and,

   e)A Form 6 Response and other material provided by the superannuation fund to be effected by the Order made, (if made), dated 6 December 2019.  That material will, for today’s purposes, be exhibit X.

2. That material discloses that as of 6 December 2019, and assuming no variations thereto, Mr Hadden held a closing balance of $24,133.45 in his fund.  The fund, no doubt, has diminished slightly since then with administrative fees.  That is apparent for the period of the correspondence August to December 2019 respectively, when the fund reduced by approximately $400.  However, that is the best evidence available, and thus the figure I will use.

3. The parties were in a relationship together for approximately five years.  That is apparent from the Applicant’s evidence, which is unchallenged (and which I am satisfied the Respondent has had a more than sufficient period to cavil with, should he have chosen to do so).  The Applicant indicates that the relationship between these parties commenced 1995 and that the parties dated “on and off” for a period of 7 years, before reconnecting and marrying in 2016.  The parties separated on a final basis in 2018.

4. The evidence of the Applicant - again, accepted on its face as more probably correct than not - is that neither of these parties came into the relationship with any assets or resources of significance.  At the time of separation, such moneys as the parties held in a joint account were withdrawn by the Respondent.  That left the Applicant with the care of the three children and unable to attend to payment of any bills.  There are no other assets of any significance referred to in any of the evidence filed as at the date of separation.

5. Thus, all that is left for consideration for adjustment are two things.   Firstly, the superannuation interest of the Respondent to which I have already referred.  Secondly, a fund of compensation that was received by the Respondent as a consequence of his having himself endured abuse at an early time in his life.  I have referred to the Respondent enduring abuse himself as the Applicant’s evidence, again, which I accept, is that the Respondent has visited significant violence upon the Applicant.

6. In those circumstances, the first proposition that can be readily addressed is that the assets available to these parties comprise superannuation of approximately $23,000 and cash funds, whether they still exist or not, of $15,000 from the compensation claim.  Nothing else is identified. 

7. In proceeding with the matter, I must be conscious of that which fell from the High Court in Stanford & Stanford (2012) 247 CLR 108. The Court cannot assume that an Applicant is entitled to an Order in their favour. The Court must be satisfied that it is appropriate to exercise jurisdiction and exercise that discretion if found appropriate. That is not a precondition or some preliminary threshold hearing to determine whether an Order is appropriate, but to determine whether the matter is properly before the Court. I am satisfied that the High Court provides the answer to that at paragraph 42 of Stanford & Stanford.

8. These parties, having married, lived together and mixed their finances, together with other aspects of their lives, have now separated.  Thus, it is not possible for them to continue to mutually enjoy such assets or resources as were cumulated.  That, of itself, satisfies me that it is appropriate to proceed.

9. I must then be satisfied as to the property available for consideration.  That is already addressed above.  There is superannuation and the compensation fund. 

10. I must then address, by reference to section 79 of the Family Law Act (supra), the contributions of these parties.  There are a number of factors of contribution that can be addressed quickly and in dot point:

    a)The Applicant’s evidence is clear that she had, throughout the relationship and since the birth of each of the three children of the relationship, been the primary and predominate parent thereto; 

    b)The Applicant will continue with the care of those children;

    c)The Respondent and Applicant were not, (for various reasons in the case of the Respondent, largely connected with his falling into drug addiction), engaged in a substantial and significant employment during the relationship.  That is not an overt criticism of the Respondent.  Clearly, if he has experienced the abuse for which he has been compensated, it may well have given some clear indication that he was likely to follow a path towards self-destructive behaviours, as he has;

    d)The Applicant will continue with care of the children which must represent a vast and significant contribution on her part, past, present and future;

    e)The Applicant’s evidence is that she has experienced significant violence at the hands of the respondent, including significant physical assaults and a number of sexual assaults.  All of those matters must be seen as rendering her contributions more onerous by reference to authorities such as Kennon & Kennon (1997) FLC 92-757. Indeed, the same authority points the path forward as regards the assessment of homemaker and parent contributions. Those contributions have been significant and should not be undervalued and must be given their proper weight.

11. Accordingly, I am satisfied that the Applicant’s contribution could not be assessed as being less than 50 per cent, although in reality, that is pejorative of the efforts that have been made by the Applicant.  Her contributions can and should be properly assessed in the range of 60 per cent or thereabouts.

12. I must then have regard to section 75(2) of the Family Law Act (supra) and the factors set out therein.  They are not future needs factors, as they are often referred to in shorthand.  Indeed, the Full Court has been clear that they should not be referred as such.  However, they are matters that largely relate to the present and future and the ability of these parties to meet their and their children’s needs. 

13. There is no vast disparity in the ages of the parties or their capacity to engage in physical employment, save and except the preclusion of the Respondent’s meaningful engagement in employment at this time, if he is so bedevilled with drug addiction as the Applicant alleges.

14. The income, property and financial resources of the parents lends support to the Applicant’s case.  She is not in paid employment at present and she has the care of three children.  She most assuredly will have expenses and impediments to her participation in paid employment in the future, the youngest of those children being not yet three.  That lends, as indicated, support to the Applicant and an adjustment in her favour. 

15. As to whether the parties have care of children under the age of 18 years, the Applicant most assuredly does.  That will impact upon her capacity to support herself and engage in employment, as well as dramatically increasing the expense base of the household.  It supports her case.

16. Commitments of the parties to support others:  there are none known, save the children of the relationship. 

17. The responsibilities of the parties to support others, are addressed in subsection (e), there are no such responsibilities. 

18. The ability of either party to receive a pension or benefit, whether from superannuation or otherwise:  the only superannuation funds are in the hands of Mr Hadden.  There will be no superannuation available to Ms Allington, absent an Order for adjustment.  I am satisfied that supports both an Order being made and lends support to an adjustment in her favour. 

19. The parties maintaining a standard of living that is reasonable in all the circumstances.  If Mr Hadden is significantly bedevilled by addiction to methamphetamine, it is unlikely that he maintains a standard of living that is reasonable or tolerable.  Ms Allington is impeded in maintaining a reasonable standard of living through her abject poverty, including the contribution of Mr Hadden by retaining all funds of the parties at separation.  That will continue into the future and lends support to an adjustment in her favour.

20. Neither party seeks an Order for maintenance, nor will education or other training assist. 

21. The Orders that are proposed will not impact upon creditors. 

22. There is no child support paid.  That must be a significant factor in favour of Ms Allington. 

23. Ms Allington has contributed to the financial resources of Mr Hadden.  He has accumulated his superannuation over a period of time that is not confined to but includes the relationship.  He has had the sole benefit of the compensation funds he received.  Although they related to matters predating the relationship of these parties, they are not excluded or quarantined in any fashion, as the Full Court has been clear.  Accordingly, those contributions by Ms Allington support an Order in her favour. 

24. The relationship has not been particularly lengthy, but it has had profound effect upon Ms Allington and her earning capacity, as well as her expenses.  That, again, lends support. 

25. Ms Allington wishes to continue in her role as a parent, and thankfully so, as otherwise the young X would not have a parent capable of meeting her needs as Mr Hadden, bedevilled by addiction as he is, could not do so.

26. Neither parent is, as far as is known, cohabiting. 

27. The terms of the Order that is proposed will benefit Ms Allington and her ability to support herself not only now, but into the future. 

28. All of those facts and circumstances, I am satisfied, would warrant and support an adjustment of at least 15 to 20 per cent, if not more, in favour of Ms Allington. 

29. For all of those reasons, I am satisfied thus that the claim for relief is made out. 

30. Ms Allington seeks what is, in effect, 80 per cent of the remaining superannuation entitlement, but which reflects, in reality, something a little above an equal division of the assets or resources of the parties when the compensation fund and funds retained at separation are considered under section 75(2)(o) of the Family Law Act (supra).

31. Accordingly, and for those reasons, I make Orders in accordance with minute exhibit A, signed and dated by me today.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  17 February 2021