JCVB & SKK

[2006] FamCA 711

[2006] FamCA 711

JFJCVBSK
FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 113 of 2004
File No. PAF 3975 of 2003

IN THE MATTER OF:

JCVB

Appellant/Husband

- and -

SKK

The Estate of the Respondent/Wife

SUPPLEMENTARY REASONS FOR JUDGMENT

BEFORE:  Holden, Coleman & May JJ
DATEOF HEARING:         By way of written submissions
DATE OF JUDGMENT:     4^th day of August 2006

SUBMISSIONS RECEIVED FROM:      

Gibson Howlin, Solicitors, (The Chambers, 51 Croydon Street, Cronulla NSW 2230) on behalf of the appellant husband.

No submissions received by or on behalf of the estate of the respondent wife (address for service: Caldwell Martin Cox, Solicitors, 320 Camden Valley Way, Narellan NSW 2567).

Name of Appeal  JCVB & SKK
Appeal Number  EA 113/2004
Date of Appeal hearing                   By way of written submissions
Date of Judgment  4^th day of August 2006
Coram  Holden, Coleman, May JJ

Catchwords:   FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Whether the Full Court should re-exercise the trial Judge’s discretion, having allowed the appeal. State of evidence and potential for disputed issues of fact requiring resolution precluded Full Court re-exercising trial Judge’s discretion.

Matter remitted for re-hearing
Costs reserved

1. In this matter the Full Court delivered judgment on 6 September 2005.  For reasons then given, the Court concluded that the husband’s appeal should be allowed.  The Court then further ordered that written submissions be filed in relation to the future course of the proceedings, and whether the Full Court could, or should, re-exercise the trial Judge’s discretion.  By agreement between the parties, the filing of submissions was postponed until late October 2005.  On 7 November 2005 submissions on behalf of the appellant husband, dated 3 November 2005, were filed with the Appeals Registrar.  Enquiry of the Appeals Registrar indicates that no submissions have been received subsequent to that date and that no submissions have been received by or on behalf of the estate at any time.

2. It is to be remembered that the proceedings with which the Court is concerned are between the husband and the estate of his late wife, that it is now nine months since the appeal was allowed, and that all parties are entitled to expect finalisation of the proceedings.

3. As the submissions on behalf of the husband accurately assert, in its reasons for judgment of 6 September 2005, this Court identified a number of valuation and/or factual issues which impacted upon the ability of the Full Court to re-exercise the trial Judge’s discretion.  Those matters included the current valuations of the former matrimonial home, the deceased wife’s motor vehicle, the nature and valuation of the husband’s superannuation interest and the nature and valuation of the deceased wife’s superannuation interest.

4. By the submissions filed on his behalf on 3 November 2005, the husband informed the Court that the parties had reached agreement that the former matrimonial home was worth $640,000.00, and that the deceased wife’s motor vehicle was worth $13,250.00.  It was submitted on behalf of the husband, with no apparent dissent on behalf of the estate, that the issues which remained related to superannuation interests. 

5. It was submitted that the “current value of the husband’s superannuation interest and the nature of such superannuation interest” had not been resolved despite the making of “[a] number of requests” of the trustee of the relevant superannuation fund, the TP Staff Benefit Fund (Submissions on behalf of the appellant husband, paragraph 6). 

6. The Court was informed that the trustee’s attitude to a splitting order was also sought, but that as “[n]o answer has as yet been forthcoming although the correspondence has been acknowledged” the issue remained relevant to the re-exercise of discretion. 

7. The husband submitted that the issue:

   … once resolved by the providing of the information by the Trustee will place the Full Court in a position to re-exercise the trial Judge’s discretion.  In the absence of a response, fresh evidence can be adduced of previous splitting orders made with respect to the subject fund. (Submissions on behalf of the appellant husband, paragraph 6)

Nothing further has been received from the solicitor for the husband in relation to the topic.

1. So far as the deceased wife’s superannuation interests are concerned, the solicitor’s for the husband submitted that the solicitor for the estate had “obtained information from the trustees of those funds of which the late wife was a member” (Submissions on behalf of the appellant husband, paragraph 7).

2. It was submitted that such information disclosed that the “nominated beneficiary” of the deceased wife is “her eldest daughter, who is not a child of the parties”.  The interests were said to be worth $3,674.58 from N Superannuation Fund and $61,736.63 from BT Lifetime Super.

10.  It was submitted that “[t]he parties do not agree as to whether the superannuation benefits paid to the beneficiary should be included in the asset pool”.  That the husband would contend that the benefits paid should be included in the asset pool whilst the estate would assert the contrary is unsurprising, and does not appear to be an issue which would represent prolonged or complex matters for this Court, or a trial Judge, to determine. 

11.  On behalf of the husband it was asserted that the issue involved “a legal argument of limited scope and does not warrant the remitting of proceedings to a single Judge” (Submissions on behalf of the appellant husband, paragraph 7).  It could be asserted that such “limited scope” was more a reason to remit than to retain the proceedings.

12.  In addition, it was submitted on behalf of the husband that:

If the Appellant were unsuccessful in his argument that the wife’s superannuation funds should be included in calculations as to how the asset pool should be divided on a re-exercise of discretion he would seek to amend his application as to the form of orders which should be made upon the re-exercise of discretion. (Submissions on behalf of the appellant husband, paragraph 7)

How the husband would thus “seek to amend his application” was not indicated in the submissions on the husband’s behalf.

13.  It was submitted on behalf of the husband that:

It is hoped that the outstanding issue with respect to the husband’s superannuation can be resolved within a short time and there will be an agreed value and position as to the appropriateness of a splitting order as between the parties. (Submissions on behalf of the appellant husband, paragraph 9)

Seven months later, the Court has not received any such advice.

14.  The submission on behalf of the husband was that:

… the Full Court exercise its discretion as to determining the nature and manner of division of the asset pool rather than remitting the matter to a single Judge as the issues to be determined between the parties are of such a confined nature that they do not warrant the expense and additional time that may be required if the matter were remitted to a single Judge. (Submissions on behalf of the appellant husband, paragraph 8)

15.  As noted earlier, no submissions have been received on behalf of the estate. 

16.  In one sense the question of whether the Full Court can and should re-exercise the trial Judge’s discretion, or should remit the matter for re-hearing by a single Judge, can only be answered in one way given that this Court is not in possession of the evidence, by agreement or otherwise, which it would require in order to re-exercise the trial Judge’s discretion.

17.  Having regard to the submissions on behalf of the husband, it is less than clear whether this Court will ever be in the position of having agreed facts upon which to base a decision.  Superficially, it ought to be a simple matter for the remaining factual issue (relating to the husband’s superannuation interests) to be provided in circumstances which afford little scope for disagreement.  On closer scrutiny however, we believe the position is not necessarily so simple.  It is conceded that the issues surrounding the husband’s superannuation interests may require evidentiary exploration, including possibly cross-examination of the husband.

18.  It is apparent that, given the effluxion of time, updating of financial circumstances may be necessary.  On any view of the submissions made on behalf of the husband, there is potential for extensive further submissions before any Court is in a position to re-exercise the trial Judge’s discretion.

19.  It has not been indicated to the Court that the respondent is willing to relinquish its entitlement pursuant to the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172 to adduce further evidence, or test such further evidence as the husband may wish to adduce before the discretion of the trial Judge is re-exercised. That factor is not decisive given that the estate has had ample time in which to make a submission in those terms if that be its position. We do not infer from anything submitted on his behalf that the husband necessarily abandons his “Allesch rights”.

20.  We are influenced by the reality that a single judge could undoubtedly, with greater expedition, economy and certainty, re-exercise the trial Judge’s discretion than events suggest that this Court could.  This is particularly the case if, as may occur, controversy surrounds any aspect of the further evidence in relation to the husband’s superannuation, or any aspect of his current financial circumstances.

21.  The Court is thus disinclined to re-exercise the trial Judge’s discretion.  In fairness to both parties however the operation of an order in those terms will be stayed for 28 days, during which if, by agreement, the parties request this Court to re-exercise the trial Judge’s discretion, and provide the information in relation to the husband’s superannuation referred to in the submissions on his behalf, the Court will reconsider the issue.

ORDERS

22.  The Court accordingly orders:

1. That the husband’s appeal be allowed.

2. That the orders of 13 October 2004 be set aside.

3. That the proceedings be remitted for a re-hearing by a judge of the Family Court of Australia.

4. That the costs of the appeal be reserved.

I certify that the preceding
22 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 04/08/2006