M v B

[2012] QDC 340

DISTRICT COURT OF QUEENSLAND

CITATION:

M v B [2012] QDC 340 (delivered ex tempore)

PARTIES:

M
(Applicant)

v

B
(Respondent)

FILE NO/S:

D2/2010 (Goondiwindi)

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

12 November 2012

DELIVERED AT:

Toowoomba

HEARING DATE:

12 November 2012

JUDGE:

Samios DCJ

ORDERS:

1.   Order that paragraph 2 of the order made by Samios DCJ on 20 August 2012 whereby the court ordered Mr M to transfer from his self-managed superannuation fund the sum of $41,187.60 to Ms B in cash or by cheque by 4 p.m. Wednesday, 22nd August, 2012 be discharged as it cannot be complied with.

2.   Application dismissed.

CATCHWORDS:

COUNSEL:

The applicant represented himself.
The respondent represented herself.

SOLICITORS:

1. This is an application by Mr M for an order that an order I made on 20 August 2012 be discharged as it cannot be complied with.  Further, that the amount of $41,187.60 that Mr M was ordered by me on 2 May 2012 to pay to Ms B, be paid as a superannuation transfer from Mr M's fund to Ms B's fund.  On the 2nd of May, 2012, Ms B and Mr M appeared before me on Ms B's application for a just and equitable distribution of property as de facto spouses.

1. Ms B and Mr M had been in a de facto relationship for about 14 years.  They have four children who, at the time of separation on 3 September 2008, were about 12, 11, 10 and 7 years of age.  At the hearing of the application, Mr M's attitude was that his superannuation was not something I could take into account as it was not an asset.  I agreed with that submission.

1. He raised the prospect of transferring money from his superannuation fund to Ms B's fund.  Ms B submitted that she did not want that as she wanted the cash.  I therefore proceeded and I ordered Mr M to pay Ms B $41,187.60 as her entitlement to a division of property between the parties.  In doing so, I acted on Ms B's submission.  I did not order that the money be paid from Mr M's superannuation fund to Ms B's superannuation fund.

1. If Mr M's superannuation had been taken into account, then, no doubt, Ms B's entitlement would've been much higher than I ordered.  Mr M has not paid Ms B the $41,187.60 I ordered he pay Ms B. 

1. Then, on 20 August 2012, Mr M made an application that he pay the sum of $41,187.60 to Ms B by $100 per week instalments.  Ms B opposed the application.  I considered, in the circumstances, it was not appropriate to make the order sought by Mr M that the relevant sum be paid by $100 weekly instalments.

1. However, the issue of Mr M's superannuation again was raised by Mr M.  My recollection is that what he said was that he would look at it being paid from his self-managed superannuation fund.  Ms B had doubts about it.  Hoping to find a solution, I ordered Mr M to transfer from his self-managed superannuation fund, the sum of $41,187.60 to Ms B in cash or by cheque by 4 p.m., Wednesday, 22nd August, 2012.  A time limit was set because Ms B had brought bankruptcy proceedings against Mr M.

1. As matters appear to have transpired, a letter from Mr Fewster from DIY Superannuation Services Proprietary Limited, which I must admit, I find difficult to understand, indicates to me that Mr M has been unable to achieve payment from his self-managed superannuation fund.  I have to say, at this point, Mr M has never put before the Court the superannuation deed, nor any rules that might apply to self-managed superannuation funds.  I have been left to deal with it myself. 

1. I am prepared, in light of Mr Fewster's letter, to conclude that the order I made could not be made.  Therefore, I do order that paragraph 2 of my order made on 20 August 2012 whereby I ordered Mr M to transfer from his self-managed superannuation fund the sum of $41,187.60 to Ms B in cash or by cheque by 4 p.m. Wednesday, 22nd August, 2012 be discharged as it cannot be complied with.

1. However, again today, Mr M seeks an order that the relevant sum be paid from his superannuation fund to Ms B's superannuation fund.  Ms B opposes that course.  Mr M has also exhibited a letter whereby he has sought a credit card and has been unsuccessful to obtain that credit card.  Firstly, I think I have already dealt with this when I made my order on the 2nd of May, 2012.  Therefore, I consider my jurisdiction has been expended.

1. If I am wrong about that, and it becomes a matter of exercising my discretion to make the order sought by Mr M, I would not do so.  This is a case where I consider that Ms B has not had the advantage of Mr M's superannuation being taken into account to determine her final entitlement to property upon separation.  I do not think it is fair now that she should receive the discounted sum paid to her superannuation fund, which she will not be able to access for about 20 years. 

1. Further, I have already found that Mr M has had the advantage of substantial sums of money from the relationship, which he has used for his own benefit, since the separation.  In addition, a recent affidavit by him filed on the 4th of July, 2012, exhibited to statement of financial position, shows that, in the last 12 months, he has received dividends of $3,353 and the results of the sale of shares in the sum of $12,316.  I also found previously, soon after the separation, he became engaged to his current partner and he bought her an engagement ring for $7,500.  He has had substantial sums of money come through his hands. 

1. I also consider he has not been frank when making an application for finance, and I mentioned that in my reasons for the order I made on the 2nd of May, 2012.  A loan application, which appears to be in his writing, and it was dated the 4th of February, 2009, not long after the separation, claimed that he had been at his residential address for five years and two months.  The address was 1/-52 Herbert Street.  That, clearly, could not have been correct.

1. He also did not state his previous residential address.  Ms B did not cross examine him, unfortunately, to clarify some other doubts that I have about this document.  One of those documents is that his mother had furniture to the value of $130,000.  I have to ignore this in the circumstances, but I cannot hide that it causes me concern in light of the other matters that I have found.

1. In the circumstances, I have come to the view that although Mr M claims that all that Ms B will get is nothing if she proceeds to bankruptcy, that is Ms Brown's entitlement to proceed in any way she thinks fit to enforce the judgment I gave on the 2nd of May, 2012.  Therefore, I dismiss Mr M's application insofar as it seeks the order that the sum of $41,187.60 be paid from his superannuation to Ms B's superannuation.

1. I make no order as to costs.