Firth and Firth (No. 3)

[2007] FamCA 1600

FAMILY COURT OF AUSTRALIA

FIRTH & FIRTH (NO. 3) [2007] FamCA 1600

FAMILY LAW – PROPERTY – SUPERANNUATION – Interlocutory order for the appointment of a single expert to calculate the wife’s entitlement in a superannuation fund ordered by Burton J in November 1998 – Husband ordered to pay costs of the day given his non attendance and costs of the hearing at the Mildura sittings of the Family court in November 2007

Family Law Act 1975 (Cth)

APPLICANT: Ms Firth

RESPONDENT: Mr Firth

FILE NUMBER: MLC 6478 of 2007

DATE DELIVERED: 17 December 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 17 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Watson & McLeod

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the wife’s solicitors be at liberty to appoint a single expert for the purposes of calculating the wife’s superannuation entitlements pursuant to the Orders of the Honourable Justice Burton dated 18 November 1998.

2. That the wife be at liberty to file an affidavit by the expert seven days prior to further determination.

3. That the husband pay the wife’s costs of $1,750 fixed on 21 November 2007 together with further costs of $1,200 of this day.

4. That the proceeding be adjourned to 9.30am on 11 February 2008.

5. That the ex tempore judgment delivered this day be transcribed, placed on the Court file and a copy be made available to each of the parties.

(5) 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 pursuant to an order I made at the regional sittings of the Family Court of Australia at Mildura on 21 November 2007.  It is unnecessary for me to recite the background to the proceedings as the same has been adequately referred to in my earlier extempore judgment delivered on 30 August 2007. 

2. On that day, I adjourned the further hearing to the regional sittings at Mildura where the husband, in the result, I might cautiously add and following the issue of a subpoena being served upon him to attend and his failure to do so would necessarily have caused some remedial action on my part, did appear in court.  His appearance on 21 November 2007 resulted in the orders being made that day.  The husband was given every opportunity to be heard.

3. I have refreshed my memory of the events that day by reading the transcript of the proceedings that I ordered and which remains on the court file.  The orders provided that the wife be given leave to amend her Application for Final Orders and I adjourned the further hearing for mention only before me to this day.  I fixed the wife's costs on the material then before me at $1750 and further ordered that liability for payment be remitted for further determination.  The husband filed a Notice of Address for Service pursuant to my order.

4. Furthermore, I gave the husband the opportunity to file and serve any Form 2A Response or affidavit material upon which he may seek to rely.  He had a period of 14 days in which to do so.  There were further facilitating orders in favour of the wife for the filing of any further documents that might necessarily accrue by reason of the orders made for the husband to file any documents upon which he may rely. 

5. Significantly, however, I ordered by consent that Emergency Services and State Superannuation calculate the wife's entitlements pursuant to the orders of Burton J dated 18 November 1998 on the basis that there had not been any withdrawals from the fund by the husband.  A calculation as to the wife's entitlements were to be assessed as at 21 November 2007.  It was further ordered that the fund forward a copy of their calculations to the wife's solicitors who would provide a copy to the husband.  The wife was ordered to serve a copy of the Orders I made that day upon the Trustees of the Fund.  I understand that was necessarily done.

6. At the opening of court this morning, Mr Williams continued to appear for the wife.  The wife was present in the offices of Mr Watson, her solicitor.  On 21 November 2007, Mr Watson, courteously in my view, offered to the husband that his office be the central point for the telephone communication this day as both parties lived locally.  That was a necessarily cost-saving device and a matter of great courtesy extended by Mr Watson to the husband, who before me on 21 November 2007, thanked the court for that arrangement.  I had every expectation that he would be present this day.  I am informed by Mr Williams that the husband is not present, and has failed to attend.  Furthermore, there has been no contact by the husband with Mr Watson's office since 21 November 2007.

7. Importantly, the husband has not taken up the opportunity to file and serve a Response or any affidavit material upon which he may seek to rely.  I am certainly concerned by his inaction.  However, that it will not be of any detriment to the wife as her interest in the superannuation fund is protected by court order.

8. The order I made on 21 November 2007 was served upon the Trustees of the fund who responded in a somewhat curious manner, offering complaint, it suggests to me, under correspondence of 12 December 2007.  The legal officer, one Ms B as signatory to the letter complained about “procedural fairness” not being accorded to the Trustees of the fund pursuant to the Family Law Rules2004.  It may be that she should read the relevant Rules and appreciate that the terms of my order only require the provision of a calculation and did not invoke procedural fairness concerning any orders to be made.

9. However, with that aside, the legal officer provided a response under the heading “Order 7”, that seems a little obtuse to me.  It did not assist me in the provision of a calculation of the wife's entitlements.  In the circumstances, it is necessary now to revert to the position that was taken by Mr Williams at the hearing in Mildura and make an order for the appointment of an expert witness.  This I propose to do.

10. The draft Minute of Orders sought by Mr Williams on behalf of the wife provides that the wife be at liberty to seek the appointment of a single expert for the purpose of calculating her superannuation entitlements pursuant to the orders of Burton J of 18 November 1998 and that she be at liberty otherwise to file an affidavit by the expert seven days prior to the further adjournment.  I propose to make these orders. 

11. It seems to me that it would be appropriate to adjourn the matter to 9.30 am on 11 February 2008.  I am conducting a Blitz List that week and have taken it upon myself to adjourn it prior to court business in order to finalise this matter.  My expectation is that, ample time being given, a calculation will be made by the single expert and provided to the legal officer of Emergency Services and State Super Fund. 

12. Mr Williams has sought a further order that the husband pay the wife's costs of $1750 that I fixed on 21 November 2007, together with further costs of this day in the sum of $1200. I appreciate the provisions of section 117(1) of the Family Law Act 1975 (Cth) and the obligations incumbent upon judges in making an order for costs. I am appreciative of the provisions of section 117(1) of the Act that each party pay their own costs. However, that is subject to subsection (2) which provides the judge with an unfettered discretion in the ordering of costs if the circumstances justify such an order being made.

13. I am satisfied that, notwithstanding my limited knowledge of the parties' financial position, it is appropriate to make such an order.  I was tempted to make the order on 21 November 2007 for the sum of $1750, given the factual circumstances then prevailing and the husband’s history of non-co-operation.  However, as a courtesy to the husband, I adjourned the matter for further argument.  He has decided not to attend court this day.  Every opportunity has been made available to him.  He was grateful for the convenience at the last hearing before me, but has failed to respond in an appropriate manner.

14. In the circumstances, it appears to me quite appropriate that the wife's costs that I fixed at the last hearing be paid and further, that the costs of this day sought in the sum of $1200 be also paid by the husband.  I accept the helpful submissions of Mr Williams, significantly on the basis that the husband has failed to participate in these proceedings, he has failed to file further documents and he has failed to appear.

15. It is in effect, on the material available to me, a slight upon the court that the husband has adopted this course and in the circumstances given the unfettered discretion I have, I propose to make those orders.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 18 January 2008