Firth and Firth

[2008] FamCA 93

FAMILY COURT OF AUSTRALIA

FIRTH & FIRTH [2008] FamCA 93

FAMILY LAW – PROPERTY – Final orders made in relation to the wife’s superannuation interest in the husband’s ESSSuper Fund pursuant to orders made in November 1998 – Contest as to value of that interest – Consent orders made with no orders as to costs.

Family Law Act 1975 (Cth)

APPLICANT: Mrs Firth

RESPONDENT: Mr Firth

FILE NUMBER: MLC 6478 of 2007

DATE DELIVERED: 11 February 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 11 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gordon

SOLICITOR FOR THE APPLICANT: Watson & McLeod

THE RESPONDENT: In person via telephone link

SOLICITOR FOR THE RESPONDENT:

Orders

1. That Pursuant to Section 79A of the Family Law Act 1975 as amended paragraphs 3(a) and (b) and paragraph 4 of the Orders of Justice Burton dated the 18^th day of November 1998 be set aside.

2. That with respect to the Husband’s superannuation with Emergency Services Superannuation Scheme and for the purposes of these Orders:

   (a)The Husband is the member spouse;

   (b)The Wife is the non-member spouse;

   (c)The superannuation fund is Emergency Services Superannuation Scheme, member number … (“the Fund”).

3. That the base amount to be allocated to the Wife out of interests of the Husband in the fund is 85.083% of the Respondent Husband’s interest in the fund.

4. That pursuant to section 90MT(1)(b) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable from the Superannuation Interest held by the husband in the Emergency Services Superannuation Scheme – Beneficiary account, the Trustee shall pay to the wife 85.083% of each splittable payment and there be a corresponding reduction in the entitlement the Respondent Husband would have had but for these Orders.

5. That these Orders bind the Trustee of the Fund and these Orders take effect from the operative time being the fourth business day after the date of service of these Final sealed Orders on the Trustee of the Fund.

6. That the Trustee of the Fund must comply with the obligations imposed upon the Trustee of eligible superannuation plans under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001.

7. That there be liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

8. That all applications be otherwise dismissed and the matter be removed from the Active Pending Cases List.

9. Certify for Counsel

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6478  of 2007

Mrs Firth

Applicant

And

Mr Firth

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me following a hearing on 21 November 2007.  I do not propose in these short ex tempore remarks to traverse the long history of the proceeding save to say that on 18 November 1998 orders were made by Burton J calculating the wife's superannuation entitlements in a fund, ESSSuper (“the Fund”).  On 21 November I made a number of orders and the proceedings were adjourned to 17 December 2007, and ultimately to this day.  On 17 December 2007, when the matter was before me Mr Williams appeared for the wife.  There was no appearance by or on behalf of the husband and the events of that day are recited in my reasons for judgment.

2. The husband is today in attendance at the offices of Mr Watson, solicitor for the wife.  He has explained to me that he was “mistaken” as to the return date on 17 December 2007, which I understand and accept. 

3. The orders I made on 17 December 2007 have been complied with and Mr Watson has caused to be obtained an assessment of the wife's rights and interest in the Fund from a Mr P who is a Consultant Actuary.  A report has been prepared by Mr P dated 1 February 2008, a copy of which has been made available to the husband.  Furthermore the report was also forwarded to the trustees of the Fund who responded with several suggestions to Mr Watson under cover of letter dated 21 January 2008.

4. I have had explained to me the rationale for the calculation of loss of financial interest of the wife's rights and entitlements pursuant to the orders that were made by Burton J on 18 November 1998.  I have read the affidavit of Mr Watson who has helpfully, as usual, annexed the relevant documents to his affidavit.  Also annexed to the affidavit was a Minute of Proposed Order.  Following the suggestions of the legal officer of the Fund, a consequent amendment was made to paragraph 5 of the Minute of Proposed Orders and this morning a grammatical constructional amendment was made to paragraph 3.

5. The husband has been present with Mr Watson during the course of discussion and the various submissions of Ms Gordon.  I have addressed him directly as well.  The husband has made it clear to me that he consents to the Minute of Proposed Orders that has been tendered and upon which he has had notice and has given the matter his due consideration. 

6. I would like to congratulate the husband on his practical and realistic attitude in the whole of the circumstances.  This is now the end in what appears to have been a long litigation journey, and I congratulate both the parties on coming to this dignified resolution.  I well recall the hearing before me on 21 November 2007 where the husband appeared in person.  He presented with a considerable amount of dignity, albeit that he clearly was upset at the time. 

7. In any event this is now the end of the proceeding and the financial connection between the parties is severed. Section 81 of the Family Law Act 1975 makes it clear that insofar as it is practicable to do so, orders of this court should sever their financial relationship. This has now been effected.

8. I mark the Minute of Consent Orders Exhibit “A” and make orders in terms of Exhibit “A”.  I will direct Mr Watson to engross the orders in the usual form.  I direct that the short ex tempore remarks be transcribed and placed on the court file. 

9. Section 117(1) of the Family Law Act 1975 (as amended) makes provision that each party bear their own costs. Subsection 2 provides that if there are justifying circumstances then it is open for a judicial officer to make an order for costs after having considered s 117(2A) of the Act. In the whole of the circumstances, and particularly given the last explanation which I accept from the husband, that he had made a mistake as to the date of the return, and given the provisions of s 117(1) of the Act it seems to me appropriate that each party should bear their own costs. They have now finalised the litigation between them and it appears to me it is fair, it is reasonable and appropriate in the whole of the circumstances.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  21 February 2008