Mellis and Mellis (No 2)

[2020] FamCA 280

FAMILY COURT OF AUSTRALIA

MELLIS & MELLIS (NO. 2) [2020] FamCA 280

FAMILY LAW – PROPERTY – where the wife seeks final property orders – where the husband has failed to engage in the proceedings – where the parties’ primary asset is the husband’s superannuation – where the wife requires more time to locate the husband’s superannuation entitlements – order that the husband be restrained from transferring, rolling out, disposing of, making application for the early release of any of his superannuation entitlements in any superannuation fund in which he holds an interest.

Family Law Act 1975 (Cth)

APPLICANT: Ms Mellis

RESPONDENT: Mr Mellis

FILE NUMBER: MLC 5299 of 2018

DATE DELIVERED: 10 March 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 10 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Victoria Legal Aid, Mr Myles

THE RESPONDENT No appearance

Orders

1. That until further order the respondent husband Mr Mellis by himself his servants or agents be and is hereby restrained from transferring, rolling out, disposing of, making application for early release of any of his entitlements in the Super Fund B of which S Limited is Trustee or any other superannuation fund in which the husband holds an interest.

2. That by 4.00pm on 17 March 2020 that applicant wife cause a sealed copy of these orders to be served on the husband by email to ….

3. That all extant applications be otherwise adjourned to the Judicial Duty List at 10am on 10 June 2020.

AND THE COURT NOTES

A.That in the event that the husband does not appear at the hearing on 10 June 2020, the wife will seek leave to proceed with her application for final property orders in his absence.

B.The Court may make final property orders in the husband’s absence.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mellis & Mellis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5299 of 2018

Ms Mellis

Applicant

And

Mr Mellis

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today pursuant to orders made by Bennett J on 14 January 2020.  At that time, there were both parenting and property applications on foot.  That day, her Honour made final parenting orders in relation to the parties’ two children.  The remaining application before the Court is the application for final property orders made by the applicant wife, Ms Mellis. She is seeking final property orders and, particularly, superannuation splitting orders. 

2. At that time, there were still outstanding issues with respect to disclosure, and her Honour made orders extending time for compliance with a subpoena issued to the trustee of Super Fund A to enable the wife to obtain necessary information to proceed with her property application.  Since that time, the wife has caused an Application in a Case to be filed on 6 March 2020.  That application is supported by an affidavit of the wife filed 3 March 2020.  That application seeks interim orders to injunct the respondent husband, Mr Mellis, from dealing with his superannuation interest. 

3. At the commencement of the day, the husband was called in the Court precincts.  He did not answer that call.  He has again been called in the Court precincts at 12.00pm.  Again, he has not answered that call.  There is no doubt that the application filed by the wife is late-filed.  Previously, there have been orders made for substituted service of documents upon the husband.  The order of Registrar Sudholz dated 16 October 2019 provides at paragraph 2 as follows:-

   That valid service upon the husband be substituted by being attached to a private email message to the address … and it is declared that documents served upon the husband on 19 August 2019 and 17 September 2019 by the wife’s legal representatives were validly served. 

4. Pursuant to that order, the wife’s solicitors caused to be served upon the husband on 6 March 2020 at 4.11 pm to his email address … the following documents:-

   ·    Application in a Case filed 6 March 2020; and

   ·    Affidavit of the wife filed 3 March 2020.

   I will mark as Exhibit A the copy of the email evidencing that service.  Having regard to that email, I am satisfied that the husband has had notice of the application before the Court this day. 

5. It is submitted on behalf of the wife that due to issues with disclosure and uncertainty as to the full extent of the husband’s superannuation interest, that she is not today in a position to proceed with her application for final property orders. What she seeks is an injunction restraining the husband from transferring, rolling out, disposing of or making application for early release of any of his superannuation entitlements. 

6. The wife relies her affidavit filed 3 March 2020 to support that application. In that affidavit, the wife deposes as to the procedural history of the matter.  She deposes that orders in relation to mutual disclosure, which were made on 16 October 2019, have not been complied with by the husband to date.  She also deposes that the husband’s former lawyers filed a Notice of Ceasing to Act on 12 August 2019.  At paragraph 9 of her affidavit, she deposes that information obtained pursuant to subpoena directed to Super Fund A indicates that the husband has rolled out his superannuation interests in 2006.  She deposes that she was never informed of that action by the husband during the course of the marriage.  She deposes that the husband has not kept her informed of his superannuation interests. 

7. Through the issuing of further subpoenas, the wife has learned that the husband holds interests in Super Fund B.  Given the history of him moving funds and transferring his superannuation interests to other funds, she is concerned that the husband may again roll out his superannuation entitlements in order to defeat her property claims.  It is as a result of that history that she now seeks an interim order that restrains the husband from taking such action with respect to his superannuation interests. 

8. The husband has not participated in these proceedings for a considerable period of time.  It is as a consequence of his disengagement from the proceedings that orders have previously been made permitting the wife to effect substituted service.  The husband did not appear at Court on 16 October 2019 before Registrar Sudholz.  Again, he did not appear before the Registrar on 15 November 2019.  When the matter came before Bennett J in the judicial duty list on 14 January 2020, in respect of both parenting and property orders, the husband again did not appear.  Having regard to that history and the apparent disengagement of the husband in the Court process, I am satisfied that there is force in the submissions made on behalf of the wife, as to her concerns that the husband may take further action with respect to his superannuation interests, so as to defeat her claims. 

9. The order that I am asked to make is an interim order only.  There is an adjournment sought in relation to the wife’s pending property application to enable her to complete her enquiries as to the extent and nature of the husband’s superannuation interests.  Therefore, if the husband wishes to make an application in relation to the interim orders I will make today, he will have the opportunity to do so.  He will also have the opportunity to be heard in relation to the final relief sought by the wife. 

10. I will make an order requiring the wife to cause a copy of these orders to be served on the husband, at his email address, to ensure that he has notice of the orders made and the further hearing date of the pending applications. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 10 March 2020.

Associate: 

Date:  10 March 2020