Mellis and Mellis (No 3)

[2020] FamCA 511

FAMILY COURT OF AUSTRALIA

MELLIS & MELLIS (NO. 3) [2020] FamCA 511

FAMILY LAW – PROPERTY – Undefended – where final property orders are made on an undefended basis – where the father has not engaged in the proceedings or complied with orders – where it is just and equitable to make the orders that the mother seeks – where the mother seeks a specified percentage equal to 100% of the father’s Super Fund B entitlements.

Family Law Act 1975 (Cth) s 79, 90XT
Family Law Rules 2004 (Cth) r 11.02
Family Law Superannuation Regulations 2001 (Cth)

APPLICANT: Ms Mellis

RESPONDENT: Mr Mellis

FILE NUMBER: MLC 5299 of 2018

DATE DELIVERED: 26 June 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 10 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hamilton

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to s 90XT of the Family Law Act 1975 (Cth) (“the Act”) whenever a splittable payment becomes payable in respect of the Respondent Father’s interest in Super Fund B which S Limited is the Trustee, the Applicant Mother shall be entitled to be paid an amount as calculated in accordance with Part 6 of the Family Law Superannuation Regulations 2001 (Cth) using a specified percentage equal to 100% and there be a corresponding reduction to the entitlement that the Respondent Father would have had in Super Fund B of which S Limited is the Trustee, but for this order.

2. Order 1 has effect from the operative time and the operative time is four business days after the service of a copy of these sealed orders upon the Super Fund B of which S Limited is the Trustee.

3. The Applicant Mother is to serve a sealed copy of these orders on the Super Fund B of which S Limited is the Trustee, within 7 days of these orders.

4. Orders 1 and 2 are binding on Super Fund B of which S Limited is the Trustee, to observe the requirements of the Act and the Regulations.

5. Except as specified in these orders:

   (a)The Applicant Mother be solely entitled to the exclusion of the other to all other property in her possession at the date of these orders, superannuation entitlements in the name of the Applicant Mother and monies standing to the credit of the Applicant Mother in any bank or such other account.

   (b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

IT IS FURTHER ORDERED THAT

1. All extant applications be dismissed and removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

1. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same.

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

REASONS FOR JUDGMENT

1. This matter was listed for hearing before me in the Judicial Duty List pursuant to orders made by Johns J on 10 March 2020.

2. The mother commenced proceedings in the Federal Circuit Court of Australia on 15 May 2018 seeking both parenting orders and orders for property settlement. The procedural history is set out in some detail in the reasons delivered by Bennett J on 14 January 2020 when her Honour made final parenting orders and Johns J on 10 March 2020 when she adjourned the property proceedings to the Judicial Duty List on 10 June 2020.

3. On 15 November 2019, Registrar Sudholz listed the matter in the Judicial Duty List on 14 January 2020 for an undefended parenting and property hearing noting inter alia that the father had not participated in the proceedings since January 2019.  Registrar Sudholz had previously ordered that documents be served upon the father by email message addressed to …. The father did not appear at the hearing before Bennett J on 14 January 2020 and her Honour being satisfied that he had been served with Registrar Sudholz’s order, proceeded to hear the mother’s application for parenting orders on an undefended basis. The mother’s application for property orders could not proceed because the mother did not have the necessary information about the father’s superannuation entitlements. It was on that basis that the matter was adjourned for hearing before Johns J on 10 March 2020.   

4. When the matter commenced on 10 March 2020, the father was called but did not appear. Johns J being satisfied that the father had been served with a copy of the mother’s Application in a Case filed 6 March 2020 and her Affidavit filed 3 March 2020 and was aware of the hearing that day, made orders restraining the father from rolling out, disposing of or making any application for early release of any of his Super Fund B entitlements. Johns J thereafter adjourned the matter to the Judicial Duty List on 10 June 2020 and made orders for service of that order upon the father by email addressed to ... noting that in the event that the father did not appear at the hearing on that date, that the mother would seek leave to proceed with her application on an undefended basis.

5. I am satisfied that the mother’s solicitor served a copy of the order made by Johns J on 10 March 2020 upon the father by email. A copy of that email is in evidence before me.  Notwithstanding that the father has been served with the order and is aware of the hearing he has still not filed any of the documents, he has been ordered to file and did not appear at the hearing before me. 

6. Rule 11.02(2) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that if a party does not comply with the Rules, the Family Law Regulations or a procedural order the court may determine the case as if it were undefended. The father in this case has failed to comply with his obligations pursuant to the Rules and ignored the orders that have been made for the filing of documents. The father has chosen not to defend these proceedings in any meaningful sense and on that basis I am satisfied that the mother’s application for property settlement should proceed as an undefended matter.

7. The father having failed to file any answering material, the mother’s evidence is unchallenged and I propose to accept her evidence on that basis.

8. The mother deposes that at the commencement of the relationship she was in employment, was renting a two bedroom flat which was fully furnished and owned her own car. The father was unemployed and had insignificant personal possessions. Both the father and mother had periods of unemployment during the relationship. The mother worked on a casual part time basis after the children were born and was otherwise primarily responsible for their care and the home. The mother describes a history of significant family violence which would almost certainly have added to the burden of caring for the children.

9. When the parties separated the respondent had approximately $21,000 in an T Bank account which the parties had saved for a deposit on a house, a motor vehicle 1 valued at approximately $17,000, a motor vehicle 2 valued at approximately $2,500, a water vessel valued at approximately $1,000, furniture valued at approximately $4,500, whitegoods valued at approximately $2,500 and furniture, motor bikes and tools valued at approximately $31,000. The father also had superannuation entitlements in a number of superannuation funds. Following separation the father provided the mother with some personal possessions and a ute which she sold for $2,000. The father retained the other property in his possession at separation for his own benefit.

10. Although the mother has some capacity for employment that is limited by the fact that she has sole responsibility for the children in her care. Both children have had counselling through the Sexual Assault and Family Violence Centre in B Town with respect to the violence they witnessed by the father against the mother.

11. Section 79(1) of the Family Law Act 1975 (Cth) (“the Act”) gives the court the power to make such orders altering the parties interests in property “as it considers appropriate”. The court must first be satisfied that in all of the circumstances of the particular case it is “just and equitable to make an order” (s 79(2)). The matters the court is required to consider are set out in s79(4) of the Act.

12. In many cases, the requirement that it is just and equitable to make an order altering the party’s interests in property is readily satisfied. This is such a case. The father has had the benefit of the property the parties had accumulated and owned as at the date of separation to the exclusion of the mother. The only property against which the mother now seeks to make a claim is the superannuation entitlements held in the father’s name with Super Fund B. 

13. I am satisfied that the mother should receive 100 % of the father’s Super Fund B entitlements which have a current withdrawal value of $27,698.27. This amounts to less than half of the value of the property retained by the father at separation and does not include any other superannuation entitlements he may have accumulated during the marriage.

14. I am satisfied that the trustee of S Limited the trustee of the Super Fund B has been afforded procedural fairness and in circumstances where the orders are unopposed by the father and are in my view just and equitable, I propose to make the orders the mother seeks.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 26 June 2020.

Associate: 

Date: 26 June 2020