Hughes and Hughes

[2011] FamCA 455

FAMILY COURT OF AUSTRALIA

HUGHES & HUGHES [2011] FamCA 455

FAMILY LAW – PROPERTY - Superannuation

Family Law Act 1975 (Cth)

APPLICANT: Ms Hughes

RESPONDENT: Mr Hughes

FILE NUMBER: MLC 3708 of 2010

DATE DELIVERED: 1 March 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duffy

SOLICITOR FOR THE APPLICANT: Barbour Arnold & Counsins

COUNSEL FOR THE RESPONDENT: Mr Mort

SOLICITOR FOR THE RESPONDENT: Lynette Smyth Solicitor

Orders

1. That the application filed 17 January 2011 by the wife and the response thereto filed by the husband on 22 February 2011 are both dismissed.

2. That the wife pay the husband’s costs fixed in the sum of $3100 within three months.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3708 of 2010

Ms Hughes

Applicant

And

Mr Hughes

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by the wife on 17 January 2011 seeking an order that the husband forthwith authorise the trustee of Macquarie ADF Superannuation Fund and the trustee of a Superannuation Fund to pay to the wife all payments due to the husband arising out of paragraph 3 of the orders made by the Court on 13 December 2000. 

2. Paragraph 3 of the orders of 13 December 2000 which I note were made by consent began by saying that “Upon my husband becoming eligible to receive any further benefit or payment”.

3. The difficulty with that particular provision is that there is no evidence before me that would suggest that the triggering event has occurred that would mean that the husband would be entitled to those funds.

4. The problem is compounded by the order in paragraph 4.  If I was to read the application today as an application that the husband effectively direct the trustee of the fund to pay the money to the wife in due course, then that is unnecessary having regard to paragraph 4 of the orders of 2000.  That order provided that a copy of the orders would be served on the trustee of the superannuation fund.  There was a request made that the trustee facilitate the order and effectively therefore be bound by it.  One of the letters written by the trustee subsequent to the amending legislation coming into operation made it clear that the trustee does not consider itself bound by the order.

5. Paragraph 4 of the orders required the husband to sign an irrevocable authority.  Paragraph 4.3 refers to “irrevocably requesting” the trustee and the employer to make payment of all such moneys.  I interpolate here that all such moneys includes moneys due to the husband by way of retirement, termination, long service leave, sick leave or holiday payment on his termination or retirement from employment, as may become due from time to time to him.  I again interpolate that means over a space of some 15 years, every time he retired and collected his sick leave or his long service leave in cash, that money was to be paid to the wife by both the trustee and the employer.  To the extent that those payments are to be made, they are to be done so in accordance with the orders.  There is no evidence before me today that there has been a request for the husband to sign an irrevocable authority.

6. Paragraph 4 requires the irrevocable authority to be prepared by the wife’s solicitors.  I do not know whether every employer and every trustee of any superannuation fund has been served with such an irrevocable authority.  All of the evidence about the husband’s current financial position seems to me to be irrelevant.  There is no basis for me to make the orders sought in the application filed on 17 January.  The remedy is in the wife’s hands. 

7. The husband filed a response to the application, but Mr Mort, on his behalf, wisely indicated that he was not proceeding with it.  His response is to simply seek that the application of the wife be dismissed, and in the circumstances, I feel I have no other alternative than to do so.

ORDER DELIVERED

1. This is an application by the husband for the costs thrown away as a result of the application upon which I have just ruled. Section 117 of the Family Law Act says that each party bears their own costs unless there are circumstances that satisfy the Court that it is justified from departing from that principle, and if in fact it is so satisfied, it must take into account as part of that exercise all of the matters that are set out in section 117(2A). This application seems to me to have been doomed from the start having regard to the nature of it. Counsel for the wife, in defending the argument about the bringing of the application says that the husband failed consistently to sign or refused to sign the irrevocable authority.

2. There is no evidence of that, and in many ways, the matter was very much in her hands.  To also suggest that the husband was stubborn and took a technical stance without substance is also avoiding the real issue in this case which is that the orders in 2000 required the wife who was then represented by lawyers to prepare the necessary documentation to give effect to the orders.  It does not seem to me on this evidence to be anything that I could criticise the husband for.  In those circumstances, there is a justification for making an order for costs.  When doing those exercises, however, I am obliged to take into account the financial position of each of the parties.

3. I do have a financial statement sworn by the husband on 22 February in which he indicates that he is living on a pension.  He has the support of a partner who is in employment and he otherwise has a boat.  He refers to the fact that he has an interest in the Macquarie Superannuation Fund which is the subject of the dispute, but if the wife’s interpretation of the order is correct, then it is not his interest any way.  The wife for her part did not file a financial statement nor should she having regard to the nature of the application, and I am told by Mr Duffy that she does work and she has the interest in the home which she has no doubt laboured long and hard for over the years since the orders were made.

4. But in any view, it would seem that neither of the parties is in the strong position, but each has assets and the reality is this is an application in relation to money. I am obliged to take into account whether each party has the benefit of legal aid, and I am not told that there is any such grant in this case. I am also entitled to take into account the conduct of the parties and there is no suggestion in this case of any practice or conduct which would justify the Court taking a condign approach. The other matter that is of some significant in section 117(2A) is whether or not a party has been wholly unsuccessful. In my view that is a significant feature in this case.

5. The costs sought were $3100, being $1850 for counsel and $1250 for the solicitor.  $1850 is well within the range of a short defended matter set out in the Rules, and whilst the costs for solicitors are fixed at just around $200 mark, I note that the husband filed not only a financial statement in response but also a comprehensive affidavit that no doubt would have taken some time to collate.  Accordingly, $1250 sounds to me to be well within the range of what the solicitor’s fees would have been.  I am not asked to make an order for indemnity costs, and therefore, the scale applies and it sounds to me like $3100 is well within that range.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 March 2011.

Associate: 

Date:  15 June 2011