Eames and Eames

[2018] FCCA 1989

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAMES & EAMES [2018] FCCA 1989

Catchwords:
FAMILY LAW – Property – undefended hearing – relationship of 25 years – husband failed to comply with orders for filing and discovery and failed to attend hearing – wife seeks superannuation splitting order pursuant to s.90MT – relevant s.75(2) factors – husband left wife to pay outstanding debts – husband participated in proceeding in such a manner as to lead to unnecessary legal costs – leave granted to proceed undefended – super splitting orders made.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(e)

Family Law Act 1975 (Cth), ss.75(2), 79(1), 79(2), 90MT(1)(b), 90MZA, 106A

Family Law (Superannuation) Regulations 2001 (Cth), pts 3, 6, regs.12, 13

Applicant: MS EAMES

Respondent: MR EAMES

File Number: MLC 8878 of 2017

Judgment of: Judge Kirton

Hearing date: 15 June 2018

Date of Last Submission: 15 June 2018

Delivered at: Melbourne

Delivered on: 15 June 2018

REPRESENTATION

The Applicant appears in person.

No appearance for the Respondent.

ORDERS

1. Leave is granted to the Applicant pursuant to Rule 13.03C(1)(e) of the Federal Circuit Court Rules 2001 to proceed to Final Hearing on an undefended basis this day.

2. Paragraphs 2 to 10 (inclusive) of these Orders are binding on the Trustee of the Super Fund C (“First Trustee”) and the Trustee of Super Fund D (“Second Trustee”).

3. Within 30 days of the date of these Orders, the prescribed percentage of 50% of the Respondent’s interest in the:

   (a)Super Fund C; and

   (b)Super Fund D;

   be allocated to the Applicant.

4. Pursuant to s 90MT(1)(b) of the Family Law Act1975, whenever a splittable payment becomes payable in respect of the interest of the Respondent in the:

   (a)     Super Fund C; and

   (b)    Super Fund D (collectively “the Funds”);

   the Applicant or her administrators or executors shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001 using the prescribed percentage in paragraph 3 herein and there be a corresponding reduction in the entitlement that the Respondent would have had but for these Orders.

5. The Applicant cause a sealed copy of these Orders to be served upon the First Trustee and the Second Trustee within 7 days of the date of these Orders.

6. Order 4 has effect from the operative time.

7. In the event that the superannuation split to the Applicant pursuant to these orders can be rolled over into a separate account to the Applicant, each of the parties shall each do all such acts and things to execute all such documents as may be necessary to facilitate and to implement that rollover.

8. The operative time for the purpose of these Orders is the seventh business day after the date of service of a sealed copy of these Orders together with a completed regulation 72 Notice on the First Trustee and Second Trustee (collectively “the Trustees”).

9. Until the happening of any of the following, the Respondent is hereby restrained by himself, his servants and agents from drawing upon, encumbering or executing a death benefit nomination in favour of any person or doing any other act or thing which would have the effect of defeating, diminishing or otherwise reducing the allocated amount or rendering part of his interests in the Funds a “not splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations2001 and the Trustees give effect to these Orders by:

   i.The establishment of a separate account in the name of the Applicant; or

   ii.The transfer or rolling into another superannuation funds of the payment created by these Orders;

   iii.The Applicant satisfying a condition of release and being paid the payment split created by these Orders;

   iv.The Applicant executing a waiver of rights within the meaning of s 90MZA of the Family Law Act1975 in relation to the payment created by these Orders.

10. Pending the Respondent’s compliance with paragraphs 2 to 9 of these Orders, he be restrained from encumbering, disposing, pledging or otherwise dealing with the assets of the Funds save for the purposes of compliance with these Orders.

11. Save as otherwise provided in these Orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders:

    (a)The Applicant shall retain for her sole use and benefit all property (including choses-in-action) in her possession as at the date of these Orders including but not limited to:

    i.Her Super Fund A and Super Fund B superannuation;

    ii.All bank accounts and investments in her own name; and

    iii.All personal effects, furniture and contents in her possession.

    (b)The Respondent shall retain for his sole use and benefit all property (including chose-in-action) in his possession  as at the date of these Orders including but not limited to:

    i.Subject to Orders 2 to 10 herein, his interests in the Super Fund C and the Super Fund D;

    ii.All bank accounts and investments in his name;

    iii.All personal effects, furniture and contents in his possession.

    (c)    Any joint tenancy of the parties is hereby expressly severed.

    (d)Each party shall be solely liable for and shall indemnify the other in relation to:

    i.Any liability encumbering any item of property to which they are entitled pursuant to these Orders; and

    ii.Any and all other liabilities in their sole name.

12. In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

13. There be liberty to apply to each party and the Trustees in relation to the implementation of the Orders affecting the superannuation interests.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8878 of 2017

MS EAMES

Applicant

and

MR EAMES

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. This matter comes before the Court for final hearing today.  The wife commenced these proceedings for an alteration of the property interests of the parties to the marriage by the wife’s initiating application filed 30 August 2017. 

2. The husband does not appear at the final hearing today.  The husband has not filed any material in this proceeding, despite being ordered to do so. 

3. The husband attended court on 18 October 2017, and was represented by counsel.  He consented to file his response, financial statement and affidavit and make discovery within 14 days.  He did not do any of these things within 14 days, or at any time during the course of this proceeding.

4. The husband attended a conciliation conference on 22 January 2018 with counsel and was ordered to pay $2,250 by the Registrar for costs thrown away by reason of his failure to comply with the orders made on 18 October 2017, by not filing his response, financial statement and making discovery.  Those costs remain unpaid.

5. At the mention of this matter on 18 April 2018, the husband was again represented by counsel, but he did not attend court himself.  The notation on the orders made on 18 April 2018 states that unless the husband filed and served a response, affidavit, financial statement and made full financial disclosure to the wife within 21 days, the wife may have leave to proceed undefended on her application to do so at the final hearing.

6. Today, as the husband has not filed any of these documents or made discovery, the wife has made application to proceed to final hearing undefended. I have granted leave, pursuant to rule 13.03C(1)(e) of the Federal Circuit Court Rules 2001, to proceed undefended. 

7. The wife has today given evidence that she relies upon the following documents, and that they are all true and correct:

   a)her initiating application, filed 30 August 2018; 

   b)her affidavit filed 30 August 2018; 

   c)her financial statement filed 30 August 2018;

   d)her affidavit filed 13 February 2018;

   e)her affidavit filed 16 April 2018; and

   f)her affidavit filed 20 April 2018.

8. The wife also relies upon the affidavit of Mr J, filed 27 February 2018. 

9. The wife has today also given evidence that she gave an unsworn copy of her affidavit filed 20 April 2018 to the husband’s counsel at court on 18 April 2018.

Background

1. By way of background, the husband and wife commenced cohabitation on 1992 and married on 1996.  Final separation took place on 12 January 2017.  The relationship was therefore one of some 25 years duration. The wife is currently 46 years old, and the husband is 48 years old.  There are two adult children of the marriage; Mr M, born 1997, and Mr C, born 1999.

2. The wife has deposed that she believes that the husband works fulltime as a (occupation omitted) earning approximately $1600 a week.  The wife has deposed that she works for (employer omitted) as a (occupation omitted), earning approximately $560 a week, and has a Newstart allowance of some $191 a month, which varies according to her hours.

3. The wife has deposed that she believes the husband to be in good health, although he suffers from alcoholism.  The wife says that she is in reasonably good health, although she has a prolapsed disc in her lower spine.

4. The wife has deposed that separation occurred as a result of the husband’s alcoholism and abusive behaviour towards her over an extensive period of time.  There is currently an intervention order against the husband in favour of the wife.

Property

1. Turning to the property of the parties: when the wife left the former matrimonial home at Property A on 12 January 2017, she took very little with her apart from her personal effects.  The husband has retained all cars and chattels. 

2. The former matrimonial home at Property A was valued by Mr J, real estate agent in February 2018 to be in the range of $210,000 to $230,000.  Unfortunately, the mortgage to the Bank exceeds this value. The house is currently on the market for sale with Real Estate and has not as yet sold.

3. The only remaining asset is the parties’ superannuation. The wife seeks a superannuation splitting order pursuant to s 90MT of the Family Law Act 1975, as set out in her affidavit filed 20 April 2018.

4. The wife has superannuation in Super Fund A of $26,772.41 as at 19 April 2018, and Super Fund B of $3,659.19 as at 19 April 2018, making a total superannuation pool of $30,431.60. 

5. The husband has superannuation in Super Fund D of $8,591.11 as at 16 March 2018, and Super Fund C of $135,612.83 as at 5 March 2018, making a total of $144,203.94. 

6. The wife seeks a 50% split of the husband’s combined super pool of $144,203.94, which would be $72,101.97. 

7. The total super pool of the husband and wife is $174,635.10, notionally. 

8. The proposed 50% of the husband’s combined super funds would result in the wife having notionally $102,533.13, which would equal 59% of the total super pool of the husband and wife, being the notional amount of $174,635.10, and would result in the husband having $72,101.97 which would represent 41% of the total super pool of the husband and wife.

Decision

1. I am satisfied that pursuant to s 79(2) of the Family Law Act1975 in all the circumstances it is just and equitable to make an order for the alteration of the property interests of the parties of the marriage, pursuant to s 79(1) of the Act.

2. The s 75(2) factors that I particularly take into account are s 75(2)(b), the income, property and financial resources of each of the parties; in particular, the husband has a greater earning capacity than the wife.

3. And next, s 75(2)(o), any fact or circumstance which in the opinion of the Court, the justice of the case requires to be taken into account.

4. I take into account the following in relation to s 75(2)(o).  Firstly, the husband has taken all the assets of the marriage.  That is:

   a)the household, furniture and contents;

   b)the ride-on mower, which the wife estimates to be valued at $3,500; 

   c)the Motor Vehicle 1, which the wife estimates at $6,200;

   d)the Motor Vehicle 2, with an estimate of $10,000;

   e)the Motor Vehicle 3 with an estimate of $15,000; and

   f)a jet ski with an estimate of $11,000.

5. Secondly, the husband has left the wife to pay outstanding debts in joint names.  These are specified in the wife’s affidavit material, but the most significant was the accumulated AGL electricity bill for the period of 8 November 2016 to 7 February 2017 of the sum of $6,635.10.

6. Thirdly, the husband, after separation, allowed the former matrimonial home to be vandalised by a tenant that he was receiving rent from, and allowed the house to fall into a state of disrepair.  The husband has not accounted to the wife for the rent that he has received. Furthermore, the wife has had to spend money on repairing the house so that it could be put into a suitable state to be sold.  These costs are detailed in the wife’s affidavits. 

7. Fourthly, the manner in which the husband has participated in this proceeding has caused the wife unnecessary legal costs.  In particular, he has refused to sign documents when he has agreed to do so in relation to the sale of the former matrimonial home. In addition, there is a costs order of $2,250 in favour of the wife, which remains unpaid.

8. Therefore, I propose to make the superannuation splitting order, pursuant to s 90MT, and ancillary orders to facilitate this.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date: 1 August 2018