Grey and Grey No.2

[2012] FamCA 885

FAMILY COURT OF AUSTRALIA

GREY & GREY NO.2 [2012] FamCA 885

FAMILY LAW – PROPERTY– Application by the wife for property orders – Where the wife was self-represented – Where there was no appearance for or on behalf of the husband – where wife sought superannuation splitting order – where the husband was on notice that such order was sought – where it is just and equitable to an order pursuant to s 90MT(1)(b) – were order is stayed for six weeks during which the husband has liberty to apply.

Child Support Assessment Act 1989 (Cth) s 117
Family Law Act 1975 (Cth) ss 75(2), 79, 79A, 90ME, 90MT(1)(b)

APPLICANT: Ms Grey

RESPONDENT: Mr Grey

FILE NUMBER: SYC 1837 of 2010

DATE DELIVERED: 15 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 15 August 2012

REPRESENTATION

FOR THE APPLICANT: Ms Grey in person

FOR THE RESPONDENT: No appearance for or on behalf of the respondent

Orders

1. That in accordance with Section 90MT(1)(b) of the Family Law Act 1975 (“the Act”) whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to the husband from his interest in the B Pty Ltd Super Fund the wife is entitled to a specified percentage being 100 per cent of the husband’s entitlement and there is a corresponding reduction in the entitlement that the husband would be entitled to receive but for this order.

2. That Order 1 has effect from the operative time and the operative time is 4 days after the date of this order.

3. Orders 1 and 2 above are stayed for six (6) weeks from the date of these orders during which the respondent husband has liberty to apply.

4. The applicant wife shall serve on the respondent husband a copy of these orders within 10 days and thereafter promptly file an affidavit of compliance with this order.

5. All outstanding applications are listed for final hearing before Ryan J at 10.00 am on 12 November 2012.

6. I direct that the applicant file and serve an amended application by 14 September 2012.

7. Both parties are directed to file and serve all affidavits upon which they intend to rely by 15 October 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grey & Grey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1837 of 2010

Ms Grey

Applicant

And

Mr Grey

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. On 28 May 2012, I made orders and published reasons in relation to Ms Grey’s application for a departure order, pursuant to s 117 of the Child Support Assessment Act 1989 (Cth). In those reasons, I traversed the background facts to this litigation. My orders and remarks today are made, taking into account the findings I made in my reasons of 28 May 2012.

3. Before the Court today is Ms Grey’s application for property settlement, constituted by her amended Final Initiating Application, filed 8 November 2011.

4. Relevantly, in that application, Ms Grey seeks a superannuation splitting order in relation to the husband’s interest in B Pty Ltd Super Fund (“B”).  B is a private superannuation fund, in which Mr and Ms Grey are its directors.  Mr and Ms Grey are the directors of the corporate trustee and themselves the sole members (beneficiaries) of the superannuation fund.

5. Attached to Ms Grey’s affidavit of 10 November 2011 are a series of B Pty Ltd Super Fund documents which establish the matters just referred to.  These documents also identify that as at 30 June 2010, the value of the husband’s interest in B was about $125,000.00.

6. It is that amount which Ms Grey seeks to secure as a splitting order in her favour, the point being she would then have a superannuation interest which constitutes the entirety of the parties’ B Pty Ltd superannuation interests.

7. I previously indicated, in my reasons of 28 May 2012, that I was satisfied Mr Grey had been served with the Application and affidavit previously referred to.  Mr Grey has filed nothing in response to Ms Grey’s Application. 

8. On 18 July 2012, correspondence was sent to Mr Grey at the address provided by him for service of documents which informed him that the matter was listed for mention and further directions today.  Mr Grey resides in overseas and the address for service is his father’s address in Perth, as was referred to in the reasons of 28 May 2012.  It is quite clear that correspondence provided pursuant to the Notice of Address for Service does make its way to Mr Grey overseas.

9. Although Mr Grey was not informed by Ms Grey that she would, today, seek the superannuation splitting order, he has been on notice for quite some time that such order was sought.  The effect of the Family Law Rules and directions made has been that he has had ample opportunity to file a response in which he indicated opposition to the orders sought.  Mr Grey has elected not to do so and I infer from that, as well as his persistent non-appearance before this Court, that he has no interest or opposition to at least the superannuation splitting order being made, as sought by Ms Grey.

10. However, for an abundance of caution, I will stay the operation of any order for six weeks so that if, during that period, Mr Grey seeks to challenge the making of the superannuation splitting order, he will have the opportunity to apply without the necessity of activating s 79A or the Court’s appellate jurisdiction.  If history is a guide, notwithstanding that such an approach has been adopted in the past, Mr Grey has never sought to re-list the matter after substantive orders were made.

11. The facts which support the making of a superannuation splitting order are identified in the reasons previously referred to.  In addition, I have today received from Ms Grey a Deed of Settlement and Release, entered into between her and Mr C in relation to a dispute between them and Citigroup and also a Deed of Settlement between Ms Grey and Citigroup.  The effect of these agreements is that the property at Suburb B remains in Ms Grey’s sole name.  She has, however, been required to assume personal liability for a very large sum advanced by Citigroup to G Pty Ltd.

12. Ms Grey must make sizeable payments to Citigroup and a one off payment of $220,000.00 to Mr C.  I accept Ms Grey’s evidence that the funds for doing so thus far have been advanced by her brothers and, if possible, she would seek to access funds held in the parties’ superannuation account to assist her overall financial situation.  Whether she is able to do more than access a modest amount in accordance with hardship provisions is not clear but it would seem highly unlikely.  There is no doubt that Ms Grey and the children are in a situation of manifest hardship; it being the case that Mr Grey still does not pay child support for the three children who are in Ms Grey’s sole care.

13. If, per chance, an adjustment is required in Mr Grey’s favour as a consequence of the superannuation splitting order sought today, that adjustment is able to be made against Ms Grey’s interest in Suburb B.  I hasten to observe that my remarks are not intended to convey the impression that on an application of s 79 and s 75(2), such an adjustment would be made.  The evidence to date indicates significant contributions by Ms Grey during the course of the marriage, including as homemaker and parent and clearly, very significant s 75(2) adjustments in her favour as a consequence of the matters referred to in my reasons published 28 May 2012.

14. On balance, I am satisfied that it is just and equitable to make the superannuation splitting order today.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 15 August 2012.

Associate:     

Date:              25 October 2012