Firth and Firth (No. 2)

[2007] FamCA 1599

FAMILY COURT OF AUSTRALIA

FIRTH & FIRTH (NO. 2) [2007] FamCA 1599

FAMILY LAW – PROPERTY – SUPERANNUATION – Procedural – Orders made for calculation of wife’s entitlement pursuant to orders made in 1998 – Matter adjourned for mention only awaiting provision of the required material

Family Law Act 1975 (Cth)

APPLICANT: Ms Firth

RESPONDENT: Mr Firth

FILE NUMBER: MLC 6478 of 2007

DATE DELIVERED: 21 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 21 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Watson & McLeod

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the Applicant Wife be given leave to amend her Application for Final Orders filed herein.

2. That the further hearing of the Wife’s Application be adjourned for mention only at 9.30am on 17 December 2007 before the Honourable Justice Guest AND THAT both the Husband and the Wife be permitted to appear through electronic communication

3. That the Wife’s costs of this day be fixed at $1,750 AND THAT liability for payment be adjourned for further determination.

4. That the Respondent Husband file and serve a Notice of Address for Service within seven days of the date hereof.

5. That in the event he proposes to do so, the Respondent Husband file and serve any Response or Affidavit upon which he seeks to rely within 14 days from the date hereof.

6. That the Applicant Wife file and serve any further Affidavit upon which she seeks to rely seven days prior to the hearing of her Application.

IT IS ORDERED BY CONSENT:

1. That the Emergency Services and State Super Superannuation calculate the Wife’s entitlements pursuant to the Orders of Justice Burton dated the 18^th of November 1998 on the basis that there had not been withdrawals from the Fund by the Husband.  The calculation as to the Wife’s entitlements be as at the 21^st of November 2007.  The Fund upon calculation forward a copy of the same to the Wife’s Solicitors who shall provide a copy to the Husband.

2. That the Wife forthwith serve a copy of these Orders upon the Husband’s Superannuation Fund.

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 MILDURA

FILE NUMBER: MLC 6478  of 2007

MS FIRTH

Applicant

And

MR FIRTH  

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the regional sittings of the Family Court of Australia at Mildura.  The proceedings commenced with a Form 2 Application filed by the wife and which came before me in the Judicial Duty List in Melbourne on 30 August 2007.  I delivered a judgment recording the events of that day and which remains on the court file.  Accordingly, it is unnecessary for me to recite the background and history to the matter as the same adequately appears in my judgment.

2. Collateral with the filing of the Form 2 Application was a Form 1 Application for Final Orders also filed on 7 June 2007.  The proceedings were otherwise adjourned by me to these sittings commencing 12 November 2007. 

3. When the matter was first called at the commencement of the regional sittings, there was no appearance by or on behalf of the husband.  As a result of submissions made by Mr Williams, who appears on behalf of the wife, leave was granted to file and serve a subpoena requiring the husband to attend court.  This was done.  The matter was adjourned, and the husband appears this day. 

4. Early in argument, Mr Williams sought leave to file and serve an Amended Application for Final Orders.  The basis for filing of this document was adequately explained and it appears sensible in the circumstances and in the exercise of my discretion that leave be granted.  I need not recite those grounds for they are adequately set out in the transcript of the submissions made by Mr Williams.  Also filed was a Form 2 Application seeking a number of specific orders. 

5. I heard argument from the husband.  He explained to the court that he suffered bipolar affective disorder and had difficulty in communicating and understanding complex matters.  I was careful to ensure that he had a free rein in all that he had to say.  This he did.  He certainly descended, at times, into an emotional and quite distressed series of statements, sometimes irrelevant to the actual proceedings before me, but which I accept were relevant to how he perceived the issues.  This is no criticism of the husband.

6. I propose to order a transcript of all that occurred this day.  That will be placed in the court file.  The transcript accordingly records all that he had to say.  As a result of helpful dialogue with Mr Williams and the husband, it is now agreed that the further hearing of the applications be adjourned before me at 9.30 am on 17 December 2007, for mention only.  The reason for that is that both parties live in Mildura. 

7. The husband now has employment with produce contractors at N.  He fears that he would lose his position if he were obliged to take off time in order to attend a hearing in Melbourne.  This I accept.  Accordingly, and proceeding without undue formality, it appears appropriate that the mention hearing on 17 December 2007 be conducted by electronic media.  Mr Watson, the instructing solicitor of Mr Williams, has kindly agreed that his office be the location for the communication that day. 

8. The orders provide for the wife's entitlements, pursuant to the orders made by Burton J on 18 November 1998, to be calculated as at 21 November 2007.  A copy of that calculation will be forwarded to the wife's solicitors, who shall provide a copy to the husband.  It is possible, it seems to me, that by this method a determination of her entitlements can be made and the matter resolved and disposed of in a dignified and sensible manner. 

9. I will mark the orders sought by the applicant wife Exhibit "A" and direct the solicitor for the wife to engross the orders and provide a copy to the husband.

10. Finally, I wish to say this.  It seems to me that this sort of application has been lost in time and gone off the rails.  It is now back on track and has the opportunity for a sensible resolution.  I suspect that the husband now appreciates the seriousness of the situation and will cooperate in the future.  That is my ready explanation.  Any failure to do so will have easily foreseeable consequences.

11. Another matter I wish to comment upon is that I have received an affidavit, prepared by Mr Watson, who brought the situation up to date following the orders made by me on 30 August 2007.  That was a very helpful affidavit and I express my appreciation to Mr Watson in taking the care to provide that information. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 18 January 2008.