Hopkinson and Hopkinson

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOPKINSON & HOPKINSON [2011] FMCAfam 1289

FAMILY LAW – Application pursuant to s.79A to reopen property settlement on the basis of a miscarriage of justice or any other circumstance – non-disclosure of small superannuation fund – revision of property settlement would only advantage bankrupt to the disadvantage of creditors – no other party joins with bankrupt in his application.

Family Law Act 1975 (Cth), ss.75(2), 79A, 79(4)(e)
Federal Magistrates Act 1999 (Cth), s.17A(2)
Bankruptcy Act 1966 (Cth), s.116(2)(d)(iii)(A)

In the Marriage of Morrison & Morrison (1994) 18 Fam LR 519
Pacelli & Hopkinson [2010] FMCAfam 1248

Applicant: MR HOPKINSON

Respondent: MS HOPKINSON

Trustee: MR PACELLI AS TRUSTEE FOR THE BANKRUPT ESTATE OF MR HOPKINSON

File Number: BRC 4362 of 2007

Judgment of: Burnett FM

Hearing date: 21 October 2011

Date of Last Submission: 21 October 2011

Delivered at: Brisbane

Delivered on: 21 October 2011

REPRESENTATION

Counsel for the Applicant: Mr Page of Senior Counsel

Counsel for the Respondent: Mr Cameron

Solicitors for the Respondent: Nathan Lawyers

Counsel for the Trustee: Ms Julian-Armitage

Solicitors for the Trustee: Gregg Lawyers

ORDERS

1. That the application is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hopkinson & Hopkinson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 4362 of 2007

MR HOPKINSON

Applicant

And

MS HOPKINSON

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This application concerns Mr Hopkinson, a bankrupt, a former [occupation omitted]. He is, from my observation, querulous. It may be his personality or it may just be the subject matter of the dispute. Irrespective, his dispute concerns a relatively trifling amount, in comparative terms, and is maintained in the face of an attitude of retreat and desire to compromise expressed by the other parties. I previously determined the issue of the standing of the bankrupt – see [2010] FMCAfam 1248. I initially ruled he had no standing in the dispute particularly because his estate had been vested in his trustee who sought to prosecute matters, for the interests of his creditors.

2. However, at a hearing since those orders of 3 July 2009, a further matter has come to light. On the material before the court in July 2009, it appeared all the bankrupt’s assets had been disclosed to and had formally vested in the hands of the trustee in bankruptcy. However, in November 2009 the prospect of a superannuation fund vested in the bankrupt’s favour came to light. There was no explanation for why this was not earlier discussed. Perhaps he did not disclose it believing he did not have to because the superannuation fund was not included within the bankrupt’s divisible property, as provided for by s.116(2)(d)(iii)(A) of the Bankruptcy Act1966 (Cth).

3. In any event, the reason is immaterial. It has subsequently transpired that the bankrupt has a superannuation fund with a value of about $13,000.00. This sum was never disclosed or debated prior to the time after…