Heyman and Heyman and Anor
[2018] FCCA 129
•6 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEYMAN & HEYMAN & ANOR | [2018] FCCA 129 |
| Catchwords: FAMILY LAW – Property – interim application for summary dismissal – Family Court Orders entered into prior to Part VIIIB Family Law Act 1975 being enacted – no default by executor of estate – no real or implied contract between the Applicant and Second Respondent – no property remaining in the estate – summary dismissal application granted – initiating application dismissed. |
| Legislation: Family Law Act 1975, pt.VIIIB Federal Circuit Court of Australia Act 1999 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Riva New South Wales Pty Ltd v Official Trustee in Bankruptcy (2017) FCA 188 |
| Applicant: | MS L HEYMAN |
| First Respondent: | ESTATE OF LATE MR HEYMAN |
| Second Respondent: | MS A HEYMAN |
| File Number: | NCC 1635 of 2016 |
| Judgment of: | Judge Middleton |
| Hearing date: | 26 October 2017 |
| Date of Last Submission: | 26 October 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 6 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mrs Kearney |
| Solicitors for the Applicant: | Baker Love Lawyers |
| Counsel for the Respondents: | Mr Levick |
| Solicitors for the Respondents: | Turnbull Hill Lawyers |
ORDERS
The Initiating Application filed on 29 September 2016 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Heyman & Heyman & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1635 of 2016
| MS L HEYMAN |
Applicant
And
| ESTATE OF LATE MR HEYMAN |
First Respondent
| MS A HEYMAN |
Second Respondent
REASONS FOR JUDGMENT
Background
By way of Application in a Case the Applicant Ms L Heyman (the Applicant) seeks to enforce Family Court orders made by consent on 16 January 2002.
At the hearing of the Application in a Case submissions made on behalf of the Applicant were in support of the Applicant’s orders sought pursuant to her Initiating Application filed on 29 September 2016. The orders sought in the Initiating Application were that:
1)The order made in the Family Court of Australia by consent on 16 January 2002 be set aside or varied pursuant to section 79A (1)(b) or (c) of the Family Law Act 1975 (Cth); and
2)That within 14 days of the date of making these orders the Second Respondent pay to the Applicant 100% of the husband's interest in (Superannuation Fund A) (member number (omitted)) received by her from (Superannuation Fund A) (trustee), plus interest calculated at the rate prescribed by the Family Law Rules 2004 (Cth) from time to time, as from 7 July 2014.
The Second Respondent Ms A Heyman (Second Respondent) is also the executor of the estate of the late Mr Heyman (the First Respondent).
Both the First and Second Respondent were represented by the same law firm.
The Applicant is 71 years of age and a retired pensioner. She lives with her partner a Mr B and is Mr B's carer.
The Applicant was married to Mr Heyman on (omitted) 1981 and divorced from him on 7 June 2003.
On 16 January 2002 the Applicant and Mr Heyman entered into consent orders dealing with their interests in property pursuant to section 79 of the Family Law Act 1975 (Cth).
The Second Respondent married Mr Heyman on (omitted) 2008.
On (omitted) 2012 Mr Heyman died.
The Second Respondent, as executor of Mr Heyman’ Will received a grant of probate made in the (court omitted) on (date omitted).
On (omitted) 2012 a Notice of (omitted) was placed in the (omitted newspaper). Thereafter the estate was distributed in accordance with the Will.
In July 2014 the Second Respondent received in her own right the sum of $54,232.70 from (Superannuation Fund A) being in the form of a death benefit.
On 29 September 2016 the Application in a Case filed 30 June 2016 was dismissed.
On 30 January 2017 the matter was adjourned until 26 October 2017 for hearing, by way of submissions only, of the Respondent’s Interim Application to have the Initiating Application summarily dismissed.
The material
The Applicant relied upon the following documents:
1)Orders made by the Family Court of Australia dated 16 January 2002;
2)Initiating Application filed 29 September 2016;
3)Affidavit of Ms L Heyman filed 29 September 2016;
4)Financial Statement of Ms L Heyman filed 29 September 2016;
5)Outline of Case and Written Submissions filed 19 October 2017.
The Respondent relied upon the following documents:
1)Response filed 4 November 2016;
2)Affidavit of Ms A Heyman filed 4 November 2016; and
3)Written Submissions of the Respondent filed 25 October 2017
The law
Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (Federal Circuit Court Act) provides:
“Summary judgment
(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.”
Accordingly the Respondent relies upon section 17A(2).
Furthermore rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) provides:
“Disposal by summary dismissal
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.”
In Riva New South Wales Pty Ltd v Official Trustee in Bankruptcy[1] Perry J said the principles governing the application of section 31A (of the Federal Court Act 1976, which is in identical terms to section 17A of the Federal Circuit Court Act) as follows:
1)the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding;
2)the intention behind the enactment of section 31A is ‘to lower the bar’ for obtaining summary judgement (including summary dismissal) below the level it had been fixed by such authorities as Day v Victorian Railway Commission (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (New South Wales) [1964] HCA 69; (1964) 112 CLR 125 at 129-130;
3)the assessment required by section 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgements in the absence of a full and complete factual matrix and argument;
4)despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution; and
5)lastly, the determination of a summary dismissal application does not require a mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. A critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial is required.
[1] [2017] FCA 188.
In Spencer v The Commonwealth[2] at [24] and [25] the High Court said:
‘[24] The exercise of powers to summarily terminate proceedings must always be attended with caution…
[25] Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.’
[2] [2010] HCA 28.
Furthermore the High Court said in relation to the earlier cases at paragraph [53]:
‘[53] In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.’
The substantive proceedings brought by the Applicant seeks an order setting aside the orders made on 16 January 2002 pursuant to section 79A(1)(b) or (c) of the Family Law Act 1975.
The relevant provisions of section 79A are as follows:
(1)‘Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order.’
The Applicant is specifically relying upon section 79A(1)(b) and (c) of the Family Law Act 1975. The law with respect to subsection (1)(b) was reviewed by the Full Court in Cawthorn v Cawthorn[3]. The Full Court in doing so quoted extensively from Kay J’s judgement in La Rocca & Lovelock[4].
[3] [1998] FamCA 37
[4] (1991) FLC 92-222.
Kay J in La Rocca[5] likened section 79A(1)(b) to the doctrine of frustration in contractual matters:
“In standard contractual doctrine, I think that it is as comfortably as anywhere described by Russell J in Re Badische Co. Ltd. (1921) 2 Ch. 331 at 379 , where his Honour said:
‘The doctrine of dissolution of a contract by the frustration of its commercial object rests on an implication arising from the presumed common intention of the parties. If the supervening events or circumstances are such that it is impossible to hold that reasonable men could have contemplated that event or those circumstances and yet have entered into the bargain expressed in the document, a term should be implied dissolving the contract upon the happening of the event or circumstances.’
Now, in my view, what the appropriate application of s. 79A(1)(b) ought to be is that circumstances that have arisen in which it becomes impracticable to carry out the orders are circumstances that could not reasonably have been contemplated and that in such circumstances, whilst impossibility is not the test and impracticability is, it may then become just and equitable to change the orders.”
[5] La Rocca & Lovelock (1991) FLC 92-222.
With respect to section 79A(1)(c) there are two limbs to this ground:
1)a person must have defaulted in carrying out an obligation in the original section 79 order, and
2)it must be just and equitable for the order to be varied, or set aside and another order made in substitution.
The order sought to be set aside
The Applicant seeks to set aside order 3 of the orders made by consent in the Family Court of Australia on 16 January 2002. That order provides:
3.1 The husband will do all acts and things and sign all documents necessary to authorise the trustee, for the time being, of (Superannuation Fund B) Superannuation Scheme or the trustee of any other fund which any entitlement of the husband in (Superannuation Fund B) Superannuation Scheme is transferred or assigned to pay to the wife an amount equal to twenty five percent (25%) of the net funds available to the husband, upon the husband or his estate becoming entitled to payment of such funds. Member number (omitted).
3.2 That the husband forthwith notify the trustee of the (Superannuation Fund B) Superannuation Scheme of the provisions of order 3.1 above and provide confirmation in writing to the solicitors for the wife that he has done so, together with any written response from the trustees of (Superannuation Fund B) Superannuation Scheme;
3.3 That the husband give seven days’ notice in writing to the wife of his intention to retire or of his becoming entitled to payment of any part of any entitlement from (Superannuation Fund B) Superannuation Scheme and that the husband forthwith pay to the wife the amount equal to twenty five percent (25%) of the net funds received by the husband from any entitlement to payment from (Superannuation Fund B) Superannuation Scheme, member number (omitted), in the event that the payment of any such entitlement and is not made directly to the wife by the trustees of the (Superannuation Fund B) Superannuation Scheme in accordance with order number 3.1 above.
Assessment of the evidence
The Applicant
The Applicant identifies that the effect of order 3 was such that she was to receive 25% of Mr Heymans’ superannuation upon Mr Heyman or his estate becoming entitled to payment of such funds.
The Applicant gives evidence that Mr Heyman informed her in 2008 that he was going to transfer his superannuation into a pension and that he would leave 25% in the fund for the Applicant.
Thereafter the Applicant wrote to (Superannuation Fund B) on 2 September 2008 requesting that (Superannuation Fund B) withdraw funds held in Mr Heyman’s superannuation account and deposit those funds into her personal bank account.
The Applicant says that (Superannuation Fund B) responded to her letter requesting that she provide a valid court order for the superannuation splitting process to begin. The Applicant does not provide evidence that she complied with the request or otherwise.
It is the Applicant's evidence that upon Mr Heyman’s death she had still not been paid 25% of his superannuation interest. She says that on 5 July 2012 she forwarded to (Superannuation Fund B) a copy of the Family Court orders dated 16 January 2002, a statement of dependency and a request for consideration of the distribution of a death benefit.
The Applicant says that (Superannuation Fund B) requested further documents including a copy of Mr Heyman’s death certificate, his Will, and the grant of probate.
The Applicant says that she was aware that Mr Heyman had remarried (to the Second Respondent) and that the Second Respondent was the executor of Mr Heyman’s estate.
On 8 October 2012 a grant of probate on Mr Heyman’s estate was pronounced. On 15 October 2012 (Superannuation Fund B) wrote to the Applicant’s solicitors advising that she was not the only potential claimant on the superannuation interest and requested that the Applicant prepare and forward to (Superannuation Fund B) statements from the other potential claimants relinquishing their claim on the superannuation.
It is the Applicant's evidence that those statements were forwarded to (Superannuation Fund B) at different times the last of which being on 4 June 2013.
On 16 September 2013 the Applicant received a letter from (Superannuation Fund A) wherein they proposed that they would pay 100% of the remaining benefit to the Second Respondent. The Applicant lodged an objection with (Superannuation Fund A).
On 17 January 2014 (Superannuation Fund A) responded to the objection and determined not to change the original benefit proposal, they advised that they would pay 100% of the remaining benefit to the Second Respondent.
Thereafter the Applicant says she lodged a complaint to the Superannuation Complaints Tribunal on the (omitted) 2014. On (omitted) 2014 the Superannuation Complaints Tribunal responded to the effect that the trustee was not bound by the 2002 Consent Order. The tribunal withdrew the Applicant's complaint on (omitted) 2014.
The Applicant provides evidence that she was able to ascertain that the Second Respondent received $54,232.70 on 7 July 2014 and that an additional “anti-detriment" amount may also have been received by the Second Respondent.
The Second Respondent
The Second Respondent gives evidence that she was married to Mr Heyman on (omitted) 2008 and confirms that he died on (omitted) 2012.
The Second Respondent confirms that on (omitted) 2012 a Grant of Probate was made in the (court omitted) and annexes a copy of that Grant of Probate as annexure A to her Affidavit.
It is the Second Respondent's evidence that the assets of the estate consisted of:
Property held in the sole name of the deceased
Estimated or known value
Property A
$450,000
Property B
$400,000
Bank AA/C no. (omitted)
$7.08
Bank AA/C NO. (omitted)
$33.87
Plus interest
$0.01
Bank BA/C no. (omitted)
$919.95
Plus interest
$1.21
(omitted insurance fund)
$756.13
TOTAL
$852,929.63
The Second Respondent provides evidence that the liabilities of the estate were as follows:
Name of creditor
Description
Estimated or known amount
Secured
Estimated or known amount
Unsecured
Bank A
Home Loan (omitted)
$307,074.59
Bank A
Home Loan (omitted)
$401,272.23
Bank A
(lease omitted)
$14,426.01
Bank A
Credit Card (omitted)
$15,475.26
Bank A
Credit Card (omitted)
$153.27
Bank C
Credit Card
$10,466.98
Turnbull Hill Lawyers
Tax Invoice for preparation of Will
$330
Deputy Commissioner of Taxation
NK
(local council omitted)
Rates due on Lot (omitted)
$356.36
(omitted) City Council
Rates due on Lot (omitted)
$330.94
(local council omitted)
Rates due on Lot (omitted)
$325.49
(omitted) City Council
Rates due on Lot (omitted)
$311.47
$724,097.09
$26,425.51
TOTAL
$750,522.60
Accordingly the estate had a gross value of $852,929.63 and a net value of $102,407.03.
It is the evidence of the Second Respondent that on (omitted) 2012 a Notice of Intent Distribution of Mr Heyman’s estate was placed in (omitted newspaper) and she annexes at annexure ‘B’ a copy of that advertisement.
The Second Respondent says that she was well aware that the Applicant had lodged a claim with (Superannuation Fund A), (Superannuation Fund A) being the subsequent superannuation fund taking over the superannuation fund previously managed by (Superannuation Fund B) Superannuation Scheme.
Annexure ‘C’ of the Second Respondent's Affidavit provides copies of letters that passed between (Superannuation Fund A) and the Applicant.
Those letters provide evidence of the following:
1)The Applicant was advised by way of letter dated 8 October 2008 that ‘as the court order was sealed on 16 January 2002, which predated the Family Law (Superannuation) Regulations 2001 made under the Family Law Act 1975 effective from 28 December 2002, the rules and regulations under the Act did not apply to the deceased members’ account;
2)It was the trustee's view that as the Court orders predated current legislation, the fund was and is not obligated to pay a benefit to the deceased's ex-spouse, the Applicant;
3)The Applicant through her solicitor[6] concedes that at the time the orders were made the Family Court of Australia did not have jurisdiction to make orders in relation to superannuation; and
4)The deceased Mr Heyman received the bulk of his superannuation entitlements prior to his death on (omitted) 2012.
[6] see page 21 of the Affidavit of the Applicant filed 29 September 2016.
The Second Respondent says that she is entitled to the amount she received and accordingly caused her solicitor to write to the Applicant's solicitor requesting that the Applicant withdraw her Application in a Case.
The relevant facts are not in dispute, namely:
1)Consent Orders were entered into on 16 January 2002;
2)The Consent Orders sought to deal with the superannuation entitlements of Mr Heyman;
3)At the time the orders were entered into Pt VIIIB of the Family Law Act was not enacted in that the provisions did not take effect until 28 December 2002;
4)The Second Respondent and Mr Heyman married on (omitted) 2008;
5)Mr Heyman received 75% of his superannuation entitlements prior to his death;
6)Mr Heyman, pursuant to order 3.3 of the Consent Orders was required to pay the Applicant 25% of the interest he received;
7)The Applicant did not receive that interest;
8)Mr Heyman died on (omitted) 2012 and the Second Respondent became the Executor of his estate;
9)The Applicant attempted to realise her entitlement with Mr Heyman’s superannuation trustee, (Superannuation Fund A) and the Second Respondent and Mr Heyman’s children supported her application for distribution of the death benefit;
10)The Applicant acted against her interest by not making a claim against the estate for either the outstanding $20,000 she was entitled to pursuant to order 2 of the Consent Orders entered into on 16 January 2002 or the 25% superannuation interest;
11)On 16 September 2013 (Superannuation Fund A) notified the Applicant that it was unwilling and unable to cooperate because the orders were not enforceable or binding upon the trustee;
12)The Second Respondent received the amount of $54,232.70 on 7 July 2014 from (Superannuation Fund A);
13)The Second Respondent refused to sign an undertaking protecting the Applicant’s beneficial interest in the death benefit.
The Applicant had an opportunity to enforce the Consent Orders at the time the husband received 75% of his superannuation entitlement. She chose not to.
The Applicant had an opportunity to make a claim on the estate, relying upon the Consent Orders of 2002, but chose not to.
It is not in contest that the Second Respondent was entitled, pursuant to the trustees obligations in accordance with the trust deed, to receive the amount of money she received in her own right.
The evidence in my view does not establish that the Second Respondent was estopped from receiving that benefit as a result of some enforceable contract entered into by way of her words or conduct.
Submissions on behalf of the Second Respondent were to the extent that the orders made in relation to the superannuation interests were made because there was an acknowledgement at the time that Mr Heyman’s superannuation interest was not property as defined in section 4 of the Family Law Act 1975 or at all. Submissions in support of that proposition go so far as to say that that proposition is supported by two matters namely:
(a)“The orders were carefully drawn so as to only impose a duty on the late Mr Heyman to pay to the applicant superannuation monies ‘upon the husband or his estate becoming entitled to payment of such funds’; and
(b)The trustee did not pay to the late Mr Heyman’s estate the quantum of his interest in the funds. Those monies were paid to the Second Respondent, not in her capacity as an executrix but as the financial dependent of the late Mr Heyman”
A further matter that is in support of the proposition submitted by the Second Respondent is found in order 3.3 namely that upon Mr Heyman receiving any entitlement from (Superannuation Fund B) Superannuation Scheme that he to forthwith pay to the wife an amount equal to 25% ‘in the event that the payment of any such entitlement is not made directly to the wife by the trustees of the (Superannuation Fund B) Superannuation Scheme in accordance with order number 3.1 above’.
There is nothing impracticable about order three. The order was never binding upon the trustee of the superannuation fund; that is a fact in law.
The order was enforceable against the late Mr Heyman. The wife did not do anything to enforce the order at the relevant time.
It is clear on the evidence that no monies were received into the estate of the late Mr Heyman from the relevant superannuation fund. Accordingly order 3.1 cannot be enforced.
The orders themselves contemplates that the trustee quite properly should decide whether the husband or his estate became entitled to payment of any funds and if so the amount of such entitlement.
The trustee in compliance with the trust deed and its obligations pursuant to the relevant law determined that the remaining benefit arising out of the late Mr Heyman’s superannuation entitlements was to be paid to the Second Respondent as a financial dependent notwithstanding the fact that the Second Respondent did not seek such a payment. In other words the trustee was not bound by the wishes of the Second Respondent. The trustee has a discretion and applied its discretion accordingly.
There is nothing about those circumstances to suggest they have arisen since the orders were made. Those circumstances were always present.
As Kay J said in La Rocca[7]:
‘…in my view, what the appropriate application of s. 79A(1)(b) ought to be is that circumstances that have arisen in which it becomes impracticable to carry out the orders are circumstances that could not reasonably have been contemplated and that in such circumstances, whilst impossibility is not the test and impracticability is, it may then become just and equitable to change the orders.
[7] La Rocca & Lovelock (1991) FLC 92-222.
The circumstances in which the Applicant finds herself in were in fact reasonably contemplated. The orders themselves contemplate that the trustee may not be bound by the orders. The orders made provision for the husband to pay directly to the wife 25% of his entitlement in the event the trustee was not bound.
The Applicant relied upon the decision in Keegan & Webber (‘Keegan’s case’).[8]I am of the view that the present case can be distinguished from Keegan's case because:
1)The order relied upon in Keegan's case was an order requiring the husband pay the wife monies from superannuation benefits received by him at some future time i.e. resignation or retirement;
2)The husband was still alive in Keegan's case whereas;
3)Here the husband is deceased and;
4)The interest purported to have been created to the benefit of the wife does not arise unless and until funds are made available to the husband or his estate; and
5)Upon Mr Heyman’s death no funds were available to his estate
[8] [2016] FCCA 2685.
As I said earlier the wife had an opportunity to enforce the orders at the time Mr Heyman received 75% of his superannuation interest and she chose not to.
The Applicant now seeks payment from the Second Respondent in circumstances where she has no entitlement to receive payment from her. The Second Respondent received money from the superannuation interest of the late Mr Heyman lawfully and she has no obligation at law to make payment to the Applicant.
The Applicant further contends that the Second Respondent was in default either:
(a)In her capacity as legal personal representative for the estate; or
(b)‘As a third party, has defaulted in complying with order 3 of the 2002 orders by not dispersing the death benefit to the Applicant, despite her previous instructions in support of such a distribution by (Superannuation Fund A)’.
In relation to the first alleged default it is quite clear that as the executor of the estate if the estate received superannuation monies then she would have been required to pay them to the Applicant.
The estate received no superannuation payments and therefore there is no default.
With respect to the second limb of the argument as I said previously I am not satisfied that there is any implied or real contract or issue estoppel between the Second Respondent and the Applicant such that she was required to pay any monies received from the superannuation fund to the Applicant.
I am satisfied that the Second Respondent received monies from the superannuation fund lawfully in accordance with the trust deed and relevant law and that she had no obligation whatsoever to pay those monies to the Applicant.
In those circumstances the Second Respondent cannot be held to have been in default.
It is a further contention of the Applicant that it would not be just and equitable for the Applicant not to receive the entitlement she was to receive pursuant to order 3 of the Consent Orders.
The difficulty I have with that submission is that there is no relevant property to be distributed in the event the orders were to be set aside. That is even if I were satisfied, which I am not, that the orders should be set aside thereafter the Applicant could not be successful in seeking orders against either the estate of the late Mr Heyman or the Second Respondent.
The evidence clearly establishes that the estate of the late Mr Heyman is wound up. That is there is no property in the estate and accordingly no orders adjusting property can be made.[9]
[9] See Stanford v Stanford (2012) FLC 93 – 495
As against the Second Respondent the Applicant has no standing in which to bring Family Court proceedings for the adjustment of property against her.
The order sought in substitution, should I set aside order 3 of the Consent Orders made on 16 January 2002 is as follows:
‘That within 14 days (14) of the date of the making of these orders, the Second Respondent shall pay to the Applicant 100% of the husband's interest in (Superannuation Fund A) (member number (omitted)) received by her from (Superannuation Fund A) (trustee), plus interest calculated at the rate prescribed by the Family Law Rules 2004 (Cth) from time to time, as from (omitted) 2014.’
The difficulty that the Applicant has with the order that she proposes is that the evidence establishes that the husband did not have an interest in (Superannuation Fund A) that was received by the Second Respondent.
The evidence establishes that the Second Respondent received her interest as a financial dependent from (Superannuation Fund A).
It follows that the order sought by the Applicant in the alternative to order 3 made on 16 January 2002 could not possibly succeed.
Summary
I have set out the uncontested facts. They are the relevant facts to be considered in the summary dismissal application.
I am satisfied that there is no real question to be tried.
For the reasons set out I am not satisfied that the Applicant has a reasonable prospect of prosecuting the proceeding.
Accordingly I have made an order dismissing the Initiating Application.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 6 February 2018
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Summary Judgment
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Abuse of Process
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