Johnson and Johnson

[2011] FamCA 1048

FAMILY COURT OF AUSTRALIA

JOHNSON & JOHNSON [2011] FamCA 1048

FAMILY LAW – PROCEDURE

Family Law Act 1975 (Cth)

APPLICANT: Ms Johnson

RESPONDENT: Mr Johnson

FILE NUMBER: DGC 793 of 2011

DATE DELIVERED: 20 December 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Einsedel

SOLICITOR FOR THE APPLICANT: Einsiedels

THE RESPONDENT: No appearance

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days

IT IS NOTED that publication of this judgment under the pseudonym  Johnson & Johnson 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 MELBOURNE

FILE NUMBER: DGC 793 of 2011

Ms Johnson

Applicant

And

Mr Johnson

Respondent

REASONS FOR JUDGMENT

1. This is an unusual application that was transferred to this list from the Senior Registrar, and it had in turn been transferred to him by a registrar in Dandenong.  The wife commenced the proceedings in March 2011 seeking property orders.  There could be little doubt about how modest the case was, because in March the wife sought orders that the husband transfer money from his superannuation to her and pay half of the debts to the ANZ bank in the wife’s name.  The matter had a rather tortuous path through the Dandenong registry.  I have noted that on each of the appearances, the husband failed to attend.  He also failed to provide any material.

2. When the matter came on for hearing on 28 November before the senior registrar, whereupon it was adjourned until today, the wife was ordered to serve the husband with some documents.  That seems to have prompted the husband to do something about the matter.  This morning, he has faxed to the Court some minutes of proposed orders which bear a signature which is consistent with the signature on the marriage certificate of many years ago.  In addition to that, he has filed a financial statement, and having regard to the amount involved and his occupation, I am satisfied that it is appropriate to make the orders in his absence.

3. This is a case in which the parties married in 1978, separated in 2008, and have children who are not any longer dependent upon them.  The wife is 54 years of age and works in the service industry, and the husband describes himself as self-employed.  Both of the parties on their financial statements earn about the same amount of money each week.  Neither party disputes the evidence of the other.  There is no reason why I should not accept it.  After what is a long marriage of some 30 years, the parties are sadly left with very little.  Each of them has superannuation arising out of their prior occupations.

4. The wife’s superannuation is about $13,000, and the husband’s, $21,000.  In his financial statement, the husband described that as about $12,000 but the wife has tendered a document described as the detailed report of the officers’ superannuation fund, which is a record endorsed with the fact that B Super Pty Ltd acts as the trustee for employees’ superannuation fund.  That document shows there is $21,000 or thereabouts in that fund.

5. I presume that, notwithstanding the husband thinks that he has $12,000, he, having a long association with financial matters for most of his career, would not be troubled about the order that he has signed, transferring by a splitting order, 100 per cent of that entitlement to his wife.  The order that I am asked to make does not refer to the formal entity, but I presume that because of a letter that I have received in evidence today, dated 14 December 2011, addressed to the solicitors for the wife from what appears to be the trustee of the fund indicating they have no objections to the orders being made, I see no prejudice to the husband.

6. That leaves me with just exactly what it is that I am being asked to describe as fair between the parties. Section 79(2) of the Family Law Act 1975 (Cth) (“the Act”) says that a court shall not make an order unless it is satisfied that it is just and equitable to do so. The parties have the superannuation and what might be loosely described as “bits and pieces”. Both parties have the same sorts of bits and pieces, and nothing otherwise of any real substance. What the wife is, however, left with is a debt to the ANZ bank of $31,700 and a credit card facility which arises out of a former business of the parties of about $20,000. Accordingly, the wife is carrying debt of pretty close to $52,000.

7. In his financial statement, the husband says that he is carrying debt of $12,000, and the solicitor for the wife says that that is news to the wife.  The husband describes it as a credit card debt, which he says is not being paid because of his current impecuniosity.  I am not at all clear on what his current position is, because he describes himself as self-employed.  Each of the faxes has come from an organisation called C Finance.  It is not for the Court to trawl through things and try and work out matters, but to simply decide whether, on the material presented, the orders are fair.

8. The superannuation of each party is still some years away from vesting, so to that extent it may ultimately be converted to cash and might satisfy some of the debt.  If that was to occur, then it still would not cover the totality of the debt. 

9. The fact that there is no equity in this case does not mean that the Court does not have power under s 79 to make an order dividing the property of the parties.

10. What I am being asked to do here is to make a specific splitting order.  Again, the parties consent to these orders, and in the circumstances it sounds like a sensible solution to what is otherwise an interminable problem.  I am satisfied in the circumstances it is just and equitable to make the orders.  In the matter of Johnson, I make final orders by consent of the parties in terms of the minutes.  The minutes can remain on the court file.  I will ask the solicitor for the wife to engross and email the minute of the order within seven days in a Word format.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 December 2011.

Associate: 

Date:  11 January 2012