Firth and Firth

[2007] FamCA 1090

FAMILY COURT OF AUSTRALIA

FIRTH & FIRTH [2007] FamCA 1090

FAMILY LAW – PRACTICE AND PROCEDURE – Urgent injunctions restraining husband from dealing with the interest in a Superannuation Fund – Husband had apparently accessed the Fund in breach of orders made by the court

APPLICANT: Ms Firth

RESPONDENT: Mr Firth

FILE NUMBER: MLC 6478 of 2007

DATE DELIVERED: 30 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 30 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Leeton

SOLICITOR FOR THE APPLICANT: Watson & McLeod

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the husband forthwith provide all details of any claim made by him and/or on his behalf to EMERGENCY SERVICES SUPERANNUATION SCHEME between 18 November 1998 and this day.

2. That the husband forthwith do all things and sign all documents and provide all necessary consents to request the trustee of the EMERGENCY SERVICES SUPERANNUION SCHEME to provide to the wife and/or her legal practitioner:

   2.1details of all claims, if any, made by the husband on EMERGENCY SERVICES SUPERANNUATION SCHEME between 18 November 1998 and this day; and

   2.2details of any future claim by the husband for benefits from the EMERGENCY SERVICES SUPERANNUATION SCHEME.

3. That the husband produce evidence of his compliance with paragraph 4(c) of the Orders made by the Family Court of Australia on 18 November 1998 by way of a certified copy of a life insurance policy pursuant to the requirements of the said Order.

4. That the husband do pay the wife’s costs of and incidental to this application fixed in the sum of $1,100.

5. That the wife forthwith cause to be served upon the husband by way of express post in envelopes addressed to the husband at X in Victoria and to P.O. Box …in D, Victoria the following:

   5.1a sealed copy of the Orders made this day, and

   5.2a covering letter informing the husband of his obligations pursuant to the said Order and the fact that the proceedings have been transferred to the Mildura sittings of the Court commencing on 12 November 2007.

6. That the Form 2 Application in a Case filed by the wife on 7 June 2007 be otherwise dismissed.

7. That the Form 1 Application for Final Orders filed by the wife on 7 June 2007 be adjourned for hearing and determination at the Mildura Sittings of the Family Court of Australia commencing 12 November 2007.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed and placed on the Court file.

IT IS CERTIFIED

(9) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of 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

MS FIRTH

Applicant

And

MR FIRTH

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List and comprises a Form 2 Application brought by the Ms Firth filed on 7 June 2007 in which she seeks a number of orders requiring the husband to detail any claims made by him or on his behalf to EMERGENCY SERVICES SUPERANNUATION SCHEME (“the Superannuation Scheme”) between 18 November 1998 and this date. 

2. Further orders have been sought by her that he do all things necessary to request the trustee of the Superannuation Scheme to provide her legal practitioner with details of any claims made by the husband upon the Fund and details of any future claim by the husband for benefits from the Fund.  Further and other facilitating orders were sought.

3. The respondent to the application is Mr Firth.  Accompanying the Form 2 Application was a Form 1 Application for final orders.  The wife’s application came on before Registrar Riddiford on 16 July 2007, when Mr Watson, the wife's solicitor, appeared.  There was no appearance by or on behalf of the husband.  However, I am satisfied from an affidavit sworn by a Mr W, being a Form 7 Affidavit of Service filed 17 July 2007, that the relevant documents properly were served upon the husband on 21 June 2007 at X in Victoria.

4. Registrar Riddiford adjourned the Application for Final Orders and the Form 2 Application to the Judicial Duty List for hearing this day for a "possible undefended hearing".  The Registrar further ordered that the husband file and serve by 6 August 2007 any Response to the Application for Final Orders or any Response to the Form 2 Application and any affidavit he may seek to rely upon.  It is clear that he did not do this.  Further orders were made by the Registrar as to service of his orders made on 16 July 2007. 

5. I have been advantaged with an affidavit sworn by Mr Watson, the wife's solicitor, and I am satisfied from the contents of that affidavit that the orders of Registrar Riddiford made 16 July 2007 have been complied with.  The husband has failed to take any part in the proceedings before me this day. 

6. By way of background, the husband was born in July 1956 and is thus 51 years of age.  The wife was born in April 1957 and is 50 years of age.  The parties married in October 1981.  In the circumstances explained in the wife's affidavit, there is one child of their marriage who was born in June 1994.  She is 13 years of age.  Following unhappy differences between the parties, they separated on 24 February 1997.  Subsequently in March 1997 the wife left the former matrimonial home in H and moved with the child to live in D. 

7. The wife deposed that orders in relation to the care and welfare of the child were made by the court on 30 April 1998.  Subsequently, orders in relation to property were made by Burton J at the Mildura sittings of the Family Court on 18 November 1998.  A copy of those orders are annexed to the affidavit of the wife. 

8. Paragraphs 3 to 5 of his Honour’s orders deal with the husband's then superannuation entitlements with the Superannuation Scheme or its successor.  The orders provided, and which were made by consent, for the wife to receive a 50 per cent share in the husband's superannuation entitlements when they became due and payable.  Significantly, however, by paragraph 4 of those consent orders, it was provided that, pending the superannuation payment in favour of the husband, he be restrained from dealing with or disposing of any entitlements with the Superannuation Scheme, and, further, that he be restrained from electing to receive entitlements other than as a lump sum payment.

9. It was further ordered that the husband maintain the life insurance policy naming the wife as a beneficiary to a level sufficient to secure the superannuation payment.  Paragraph 5 of those orders provided that a sealed copy be delivered to the trustees of the Fund. 

10. From what I can discern from the documents, it may be that the wife's former solicitors did not send a copy of the orders to the trustees of the Fund pursuant to the orders that were made on 18 November 1998.  That may cause to be agitated some other areas of concern in another jurisdiction, but that is not for me to contemplate at this stage.

11. I have carefully considered the wife's affidavit, to which I have referred.  She deposed that, in breach of paragraph (4)(a) of the orders, the husband, apparently in an admission against self‑interest made by him to her, said that in or about 2005 he did apply to the Superannuation Scheme for the release of $15,000. 

12. As the wife, and correctly so, was of the belief she would receive an equal sum, and did not, she contacted the Superannuation Scheme in 2006 inquiring about her entitlements and the fact that the husband had accessed his superannuation entitlements.  She was baldly informed by an officer of the Fund that they could not discuss the husband's superannuation benefits or any transactions in relation thereto with her and that she should seek independent legal advice.  That, of course, alone tends to agitate one's suspicions. 

13. The wife also deposed that she asked whether the Trustees of the Fund had received a copy of the orders, pursuant to clause 5, to which I have earlier referred.  She was informed that they did not.  That of course is another issue, which, as I said, may agitate some concern in another jurisdiction.

14. As a result of the information she received, the wife engaged her current solicitors to investigate the matters for her.  Mr Watson acted promptly and annexed to the wife’s affidavit are copies of letters forwarded by him to the Superannuation Scheme on 8 December 2006 and their reply on 21 December 2006. 

15. Further, Mr Watson, on instructions received from the wife, wrote to the husband on 24 January 2007.  There was no response by him to their request for information.  It appears, on the face of what the wife has deposed, that the husband may have breached the orders.  But that is a matter for consideration perhaps by another judge of this court at a later time.

16. It appears to me that the matter requires urgent attention and I propose to make the orders contained in paragraphs 1, 2 and 3 of the Form 2 Application in a Case filed 7 June 2007. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  18 September 2007.