Greene v Harte No. Scciv-01-1734

GREENE V HARTE
[2002] SASC 23

LANDER J. This is an appeal from a decision of a Magistrate given on 14 December 2001 in which the Magistrate made an order preventing the applicant from accessing superannuation funds until the trial of this action.
The appellant and respondent lived in a de facto relationship which commenced in September 1995 and terminated on 24 January 1999. There are two children of the relationship. The appellant and the respondent share the care of the children.
The respondent has brought proceedings in the Magistrates Court seeking an order for division of property under the De facto Relationships Act 1996 (SA). The trial of the action is to take place on 26 March 2002. The appellant and respondent have brought other proceedings in the Family Court of Australia relating to the care and support of the two children. Those proceedings, like these, have been quite acrimonious.
The respondent claims, notwithstanding orders of the Family Court and agreements made between her and the appellant, that the appellant has paid her only $600 for the support of the children since the termination of the relationship. The arguments relating to the care and support of children must be decided in the Family Court.
The appellant says that he has only one asset being the sum of about $20,000 being his superannuation entitlement with the Public Sector Superannuation Scheme.
Ordinarily the appellant would not be entitled to access those entitlements until he was 55 and retired from the work-force. In fact, the appellant is a good deal younger than 55 and is presently in receipt of social services.
He says he presently cannot work because he cares for the children and is otherwise heavily committed in this litigation and the litigation in the Family Court.
It is his case that he would be entitled to access $10,000 of his superannuation entitlements because he is presently destitute. He claims that he has no other assets and that his outgoings exceed his income by a significant amount.
He says that he is supported by the charity of his mother. He therefore seeks access or would, apart from the order which has been made, seek access to the sum of $10,000 to support himself and the children. The respondent sought and obtained this order to prevent him having access and dissipating any sum to which he would have access. She claims that the Court will award her the whole or the major part of the appellant’s entitlements and then, if he had access to that sum, she would be denied her just result.
The Magistrate accepted that argument and made the order to which I have referred. The appellant has put two arguments on this appeal. First, the order should not have been made because the respondent could not be entitled to any order in relation to this asset under the Act. Alternatively, if that argument is not accepted, the Magistrate erred in the exercise of his discretion in making this order.
The appellant claims that no order can be made under s 10 of the Act which would affect his rights to his entitlements to superannuation.
The adjustment of property interests is provided for in Pt 3 of the Act. Section 9(1) of the Act of the provides:
“After a de facto relationship ends, either of the de facto partners may apply to the court for the division of property.”
Section 10 of the Act provides:
“(1)On an application for the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.
(2)For example, the court may makes orders for -
(a)     the transfer of property from one de facto partner to another; or
(b)    the sale of property and the division of the net proceeds between the de facto partners in proportions decided by the court; or
(c)    the payment by one de facto partner of a lump sum to the other.”
‘Property’ is defined in s 3 of the Act in the following terms:
“ “property” of a person includes -
(a)a prospective entitlement or benefit under a superannuation or retirement benefit scheme;” and
“(d) any other valuable benefit.”
It is clear that the Act contemplates that application will be made by a de facto partner for the division of a prospective entitlement or benefit under a superannuation or retirement benefit scheme of the other de facto partner. It is clear, in my opinion, that s10 allows the court to divide that prospective entitlement or benefit under a superannuation or retirement benefit scheme between the de facto partners in a way that is just and equitable.
In my opinion, the Court clearly has power to make an order of the kind sought by the respondent. Whether or not the Court will make such an order depends upon a resolution of the matters in s 11 of the Act. That, of course, will depend upon the evidence adduced at the trial and whether the Magistrate is satisfied that such an order should be made having regard to the criteria in that section. However, it is clear that an order can be made. The respondent has advanced reasons in this Court why it should be made.
The first argument is therefore rejected. It follows from the rejection of the first argument that there is a serious question to be tried between the parties.
The appellant, however, says that the Magistrate erred in failing to have regard to his destitute circumstances and therefore failed to appreciate that the balance of convenience lay with the appellant.
The respondent, on the other hand, says that the appellant’s claim that he is destitute is untrue. On the hearing of this appeal, the respondent filed an affidavit in which she claimed that the appellant had earned income between 1999 and 2002 in the sum of $178,861.12.
In argument the respondent, who was unrepresented, made other submissions which would suggest that the appellant had been far from frank in his evidence in the Magistrates Court and on this appeal.
I invited her to depose to those matters in a further affidavit, which she did. I gave leave to the appellant to answer the claims made in that affidavit and, in particular, the claims relating to the income which she alleged he had received.
The appellant had claimed in argument before me, through his counsel, that the expenses incurred in obtaining the income to which the respondent had referred were nearly as great as the income.
However, he has not made discovery of any of the documents which would establish those expenses. Of course he will need to do so before trial if he is to maintain that argument.
The appellant did not comply with my directions in relation to the filing of an affidavit. In this case, the appellant had sought an urgent hearing of the appeal because of his claim to be destitute. I accommodated him by hearing the matter as a matter of urgency immediately prior to Christmas. I adjourned the matter to early in the new year so that the matter could be concluded. I further adjourned the matter to allow the appellant to answer these very serious claims that the respondent had made on this appeal.
The Court did all it could to indulge the appellant in relation to the hearing of this appeal. Notwithstanding the indulgences which had been offered by the Court to the appellant, he did not comply with my directions in relation to the filing of his answering affidavit, and the affidavit was presented to me on the adjournment of the hearing and immediately before the hearing. It was served on the respondent at the same time.
Not only were I and the respondent taken by surprise but it became clear in argument that the appellant’s counsel had not read the affidavit. In any event, the matter proceeded and I considered the matters in the affidavit.
Whilst it is not appropriate on this appeal to reach any final conclusion on whether the appellant is destitute, I am not convinced on the evidence before me that he is destitute. There is uncontroverted evidence in the respondent’s affidavit in relation to a number of matters which seem to me to be important. In the end, as I say, I am not convinced at the present time that he is destitute.
In this case, clearly, damages would not be an adequate remedy. If the appellant had access to the money, the money would be dissipated and the respondent would not be able to recover the money if she succeeds in her proceedings. In those circumstances, and on the present state of the evidence, it cannot be said that the Magistrate erred in making the order which he did.
There are two other matters which need to be mentioned. First, during the argument this morning, the appellant’s counsel indicated that his client wished to abandon the appeal. I think an abandonment of an appeal is not available to an appellant. The appellant is entitled to seek an adjournment for the purpose of filing a notice of discontinuance pursuant to r 97.10. In the circumstances of this case and having regard to the litigation I thought I should decide the matter immediately.
The second matter to mention is that, on the hearing before the Magistrate, the Magistrate did not extract an undertaking from the respondent as to damages. Usually, when an injunction is granted, the price of the injunction is an undertaking as to damages. No complaint, however, has been made on this appeal in regard to that matter.
In all those circumstances, the order of the Court will be that the appeal is dismissed.

[2002] SASC 23

30 January 2002