Glenn & Glenn
[2022] FedCFamC2F 616
•5 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Glenn & Glenn [2022] FedCFamC2F 616
File number(s): ADC 350 of 2021 Judgment of: JUDGE BROWN Date of judgment: 5 May 2022 Catchwords: FAMILY LAW – property settlement – undefended hearing – where the respondent has not engaged in proceedings – long marriage – where the property pool is extremely modest – where the financial relationship of the parties must be concluded – superannuation spilt Legislation: Family Law Act 1979 (Cth) ss 75, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), pt 10.6.
Cases cited: Taylor v Taylor (1979) 143 CLR 1. Division: Division 2 Family Law Number of paragraphs: 44 Date of hearing: 5 May 2022 Place: Adelaide Counsel for the Applicant: Mr Lipari Solicitor for the Applicant: Furler & Co Counsel for the Respondent:: No Appearance Solicitor for the Respondent: No Appearance ORDERS
ADC 350 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GLENN
Applicant
AND: MR GLENN
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
5 MAY 2022
THE COURT ORDERS THAT:
1.That in full and final settlement of any claim either party may have against the other for settlement of property and alterations of interest in property pursuant to Part VII of the Family Law Act 1975 (Cth):
(a)That the following shall apply to the respondent’s interest in his Super Fund B (“the said fund”):
(i)That a base amount of FIFTY-EIGHT THOUSAND FOUR HUNDRED ($58,400.00) is allocated, as required by s 90XT(4) of the Family Law Act 1975 (Cth), to the applicant out of the respondent’s interest in the said fund.
(ii)That in accordance with 90XT(1)(a) of the Family Law Act 1975 (Cth):
A.The applicant is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
B.The respondent’s entitlement, and the entitlement of such other person to whim a splittable payment may be made to payments out of the respondent’s interest in the said fund is correspondingly reduced.
(iii)That the trustee of the said fund, Super Fund B (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
A.Calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth), the entitlement for the applicant created by paragraph 1(a) herein; and
B.Pay the entitlement whenever the trustee makes a splittable payment out of the respondent’s interest in the said fund.
(iv)That paragraphs 1(a)(ii)A and 1(a)(ii)B contained herein have effect from the operative time and the operative time is FOUR (4) days after service of this Order upon the trustee.
(v)That after service of the payment split notice pursuant to r 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), the respondent shall do all such things and sign all necessary documents as may be necessary, including but not limited to, exercising the applicant’s request pursuant to r 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the rollover or transfer of the transferable benefits out of the respondent’s interest in the said fund to a fund of the applicant’s choosing in accordance with r 7A.12 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).
(b)That subject to the provisions of this order each party do release the other party from any liability for any claim that either one may have against the other in respect of any property either now or hereafter owned or in the possession of either of them.
(c)That the husband do indemnify and keep indemnified the wife from all debts and liabilities of the husband whether in the sole name of the husband or severally with others including any liabilities owed to C Pty Ltd and Bank D.
(d)That the wife do indemnify and keep indemnified the husband for all debts and liabilities of the wife in her sole name.
(e)Henceforth each party is restrained and an injunction hereby granted restraining the parties and each of them from pledging the credit of the other.
(f)The parties shall do all acts, deeds and things and sign and execute all documents necessary to give full force and effect of this order provided that if either the applicant or the respondent shall refuse or neglect to execute a document necessary to give full force and effect to this order within fourteen (14) days after the same shall have been tendered to them for the purpose of execution then in such event a Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary to do to settle the same and to do all such other acts and things as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly and the party in default shall pay the other party’s costs as agreed or taxed.
2.That all previous Orders are hereby discharged.
3.That all extant applications are hereby dismissed as finalised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Glenn & Glenn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read. Some headings have been inserted to assist in this regard.
The matter of Glenn is listed before me this morning. The parties to the proceedings are Ms Glenn (hereinafter referred to as “Ms Glenn”) and Mr Glenn (hereinafter referred to as “Mr Glenn”). The case relates to the division of matrimonial property.
It is a sad case because the financial resources, which are available to be allocated between the parties concerned, are extremely modest. In addition, it is perplexing, in the sense that one of the parties concerned, although I am satisfied he knows all about them, has taken no part in the proceedings in a substantive way.
The chief difficulty in the case is therefore obvious. There is no evidence from one of the parties as to what occurred between them in financial and, indeed, parenting terms during what was a relatively lengthy relationship.
In such circumstances, it is always difficult, in the absence of one party, for the court to determine what is an overall fair or just and equitable outcome in the case. Accordingly, the case throws up a dilemma.
On the one hand, it would be fundamentally unfair to one party, who is agitating for the case to be finalised and who has done all that is required of her, for the case to be unduly prolonged or indeed postponed indefinitely in the hope that the other party will ultimately engage.
On the other hand, it is disturbing for the court to be called upon to make orders in the absence of one of the parties concerned because obviously, as the old saying has it, there are always two sides to every story, and a counterargument available to every proposition that’s put.
Therefore, to deal with a case in the absence of one party always has the risk that it may be later criticised for being unfair. However, for the reasons upon for which I will expand on in due course, I’m satisfied that this is a case where it is appropriate to finalise the matter in the absence of one of the parties.
BACKGROUND
Ms Glenn commenced these proceedings on 26 January 2021. At that stage, she sought orders that the parties’ assets be divided as determined as the court thought fit and in addition, that monies owed by the parties to the Bank D and C Pty Ltd be wholly borne by the husband.[1]
[1] See Initiating Application filed by Applicant on 26 January 2021.
It is clear that Ms Glenn’s application was personally served upon Mr Glenn and he indeed signed an acknowledgment to that effect that he was served on 20 January 2021.[2]
[2] See Affidavit of Service filed 26 February 2021; Acknowledgment of Service filed 26 February 2021.
The case came before the court for the first time in chambers before Registrar McDonald where some procedural orders were made including that Mr Glenn file a response, an affidavit and a statement of his financial circumstances. Thereupon the case was adjourned until 9 of March 2021.[3]
[3] See orders of Registrar McDonald dated 28 January 2021.
On which occasion Mr Glenn appeared in person before the Registrar. In those circumstances, there can be no doubt that Mr Glenn was aware of these proceedings and in general terms what they were about. Once again, he was directed to file and serve a response and a financial summary, it being a case that was designated as a Priority Property Pool matter.[4]
[4] See orders of Registrar McDonald dated 9 March 2021.
The parties were directed to attend a Conciliation Conference to see if they could resolve the issues between them. However, as Mr Glenn did not file the documents required of him, on 13 April 2021, the Registrar vacated the Conciliation Conference.
Other orders were made, again allowing Mr Glenn to take part in the proceedings[5], and regrettably those orders were disregarded. Thereafter, the case came to me for finalisation on an undefended basis.
[5] See orders of Registrar McDonald dated 13 April 2021.
There have been delays from Ms Glenn’s point of view, about which I am not at all critical, in that she has been, through the agency of her solicitor, Ms Furler, endeavouring to identify what assets, if any, are available, particularly in terms of what superannuation Mr Glenn has. I also suspect that Ms Furler has been endeavouring to ascertain what debts may be undischarged.
Ms Furler, on Ms Glenn’s behalf, filed a lengthy affidavit on 26 January 2021 indicating the essential background to the parties’ relationship and subsequent marriage. Ms Glenn was born in 1981. Accordingly, she is 41 years of age. Mr Glenn was born in 1978. Accordingly, he is now 44 years of age. The parties began to live together a very long time ago now, in 2000 and married in 2006.[6]
[6] See Affidavit of Ms Glenn filed 26 January 2021.
They are the parents of three children; Ms E, who is no longer a child, who was born in 2001; X, who will soon be 17, who was born in 2005; and Y, who was born in 2006.[7]
[7] See Affidavit of Ms Glenn dated 26 January 2021 at [6].
There is no controversy that the parties separated in what Ms Glenn describes as extraordinarily difficult circumstances on 13 May 2012, which that year, was Mother’s Day. It is Ms Glenn’s evidence that she was primarily involved in providing care for the parties’ children and being a homemaker.
On the other hand, Mr Glenn, who is a tradesman, was initially involved in working for a family business. But according to Ms Glenn he abandoned that after the parties separated due to conflict between him and his father.
It is Ms Glenn’s evidence that Mr Glenn has had a significant drug abuse issue and it is her evidence that that difficulty escalated after the husband left his father’s business. Essentially, it is her case that the assets, which the parties were able to acquire during their marriage and indeed afterwards, have been wasted by the husband’s wasteful, cavalier and irresponsible conduct.
It is also her case that the marriage between the parties was one marked by significant family violence which resulted in her being referred to a psychologist. It is also her evidence that following the parties’ separation, she has been left with sole financial responsibility for the parties’ three children and has also been their main provider of physical support and emotional nurture.
Ms Glenn has deposed that she was forced to apply for an intervention order in respect of an incident which occurred after the parties separated.[8] It is Ms Glenn’s evidence that she has continued to receive credit card statements and credit card accounts which relate to the husband’s conduct.
[8] See Affidavit of Ms Glenn dated 26 January 2021 at [18].
Ms Glenn believes he has used the parties’ joint credit to fund a profligate and irresponsible lifestyle which has included, she believes, significant drug abuse. All the time she has been subject to abusive conduct including, on one occasion, that the husband smashing her front glass door and abusing her.
It is Ms Glenn’s evidence, which I accept, that this has been extraordinary difficult for her and that undoubtedly must be the case. As a consequence, she has been diagnosed with anxiety and post-traumatic stress disorder. She was hospitalised at F Clinic for a period of five weeks. During that time, she has had extraordinary difficulties keeping her family together.[9]
[9] See Affidavit of Ms Glenn dated 26 January 2022 at [28] – [29].
In the past, Ms Glenn has been able to work in hospitality and cleaning. She had a job working at a business in Town G. However, she has been diagnosed with Rheumatoid Arthritis. She has had to have support for her wrists and operations on her wrists on account of her condition. So, given her previous line of work, it is extraordinarily difficult for her to work in any job that involves using manipulation of the wrists or kneeling or anything of that kind.
The parties owned a house in Town H. It was subject to a mortgage. Ms Glenn has deposed that following separation, she wanted the property sold so that the parties could save whatever equity they had. But Mr Glenn refused to do anything to advance that, so things went from bad to worse, and ultimately the mortgagee compelled the sale and it was sold at a loss, and there remains a debt to the relevant mortgagee. In addition, Ms Glenn has been left with significant credit card debts. So this is an extraordinarily sad and challenging case.
Mr Glenn has been given an opportunity to put his side of things. He has not taken up that opportunity and, as a result, Ms Glenn herself has been put to the bother and expense of having me resolve the case. The reality now is that the only significant financial resource that is available is Mr Glenn’s superannuation with Super Fund J.
Ms Glenn, through Ms Furler, was put to the trouble of having to search and deal with the superannuation fund directly. The amount involved is about $73,000.00. It is Ms Glenn’s position that she seeks a split of this superannuation, in her favour, of 80%./20%[10] Whether ultimately she may be able to access that through hardship provisions, I don’t know.
[10] See Outline of Case of Ms Glenn filed 4 May 2022.
Clearly, she is some way off from being able to receive an aged pension. She is currently, I think, sustaining herself through government support. She is living in rented accommodation which is, on her affidavit evidence, not in a good state of repair. She is, on any view, a significantly disadvantaged member of the community.
THE LEGAL PRINCIPLES APPLICABLE
As I have indicated, it is a significant thing for proceedings to be determined in the absence of one of the parties. The Court has an obligation to ensure that parties to proceedings have an opportunity to participate in those proceedings. Before a person can be adversely effected by judicial order, he or she must be afforded an adequate opportunity to be heard.[11]
[11] See Taylor v Taylor (1979) 143 CLR 1.
In this case, I am satisfied that Mr Glenn has been given more than an adequate opportunity to appear in these proceedings and put his position. He has not taken that opportunity. In those circumstances, Ms Glenn is entitled to have her application dealt with and I propose to deal with it.
Pursuant to the Court’s rules,[12] the Court has authority to enter judgment against a respondent if that respondent defaults in complying with a Court order or fails to prosecute any proceedings with due diligence. I am satisfied that Mr Glenn has failed to comply with orders of the Court, he has nog produced documents as directed of him and he has not defended the proceedings with due diligence.
[12] See Part 10.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The process to be followed for the division of matrimonial property and the division of superannuation is well established by law. The relevant principles are primarily contained in section 79(2) and section 79(4) of the Family Law Act 1979 (Cth)[13].
[13] Hereinafter referred to as “the Act”.
I am required to, firstly, ascertain what are the parties’ assets. Then secondly, assess the contributions, each party has made to those asset. Contributions need not be purely financial in nature but can include the contributions made as a parent and homemaker.
Thirdly, I must make an assessment of the parties’ prospective needs, pursuant to the matters listed in section 75(2) of the Act. However, I am also required to bear in mind that whatever I do, I have to be satisfied that it’s just and equitable and otherwise proper to make the orders.
DISCUSSION
In my view, the marriage between the parties was a lengthy one. There are now no significant assets available to be apportioned. The parties’ lengthy marriage has been a financial disaster.
The wife owns a motor vehicle which is 20 years old. She values it at $1500.00.[14] Clearly, she needs that motor vehicle to sustain her lifestyle. She has got some modest savings and some furniture and effects, which she values at $500.00, but to replace those items would, I believe, undoubtedly cost far more. She has $39.00 in superannuation. She accessed what modest amounts were there through the pandemic provisions.
[14] See Outline of Case of Ms Glenn filed 4 May 2022.
The parties’ owed C Pty Ltd, which no doubt is the inheritor of the credit card debt, is $94,502.52. I accept that that the monies obtained have all gone to Mr Glenn and the support of his needs. There is another credit card of $56,635.98.[15]
[15] See Outline of Case of Ms Glenn filed 4 May 2022.
In all the circumstances, in assessing the contributions, I think those overwhelmingly favour Ms Glenn. The Full Court has urged courts to be cautious about characterising contributions as negative. But I am entitled to notionally add back assets that have been wasted and take those into account in a manner that I think is just and equitable.
I do not know nothing about Mr Glenn’s future needs other than he has skills as a tradesman. What is the state of his health, I do not know. But to a large extent, that is entirely Mr Glenn’s fault.
I accept that Ms Glenn is a vulnerable and fragile person in terms of both her mental and physical health, so future needs gravely favour her. It is very far from being an outcome that can give her any great consolation or solace for what is a very difficult life for her in prospect.
In these circumstances, I am persuaded that it is just and equitable that there be an 80% split made in her favour from the husband’s limited superannuation. Factors relative to contribution and future needs favour her.
I will make the various orders, which are in the nature of indemnity, in respect of the debts relating to the various credit providers concerned, which I am satisfied were incurred by the husband. I will also order that these reasons for judgment be transcribed so that the wife and those advising her can provide them to those credit providers.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 18 May 2022
0
1
2