Prince and Prince

[2013] FamCA 435

FAMILY COURT OF AUSTRALIA
AMENDED PURSUANT TO RULE 17.02 OF THE FAMILY LAW RULES 2004

PRINCE & PRINCE [2013] FamCA 435

FAMILY LAW – PROPERTY – Only property is superannuation – Modest dispute with limited evidence.

Family Law Act 1975 (Cth)

APPLICANT: Mr Prince

RESPONDENT: Ms Prince

FILE NUMBER: MLC 3608 of 2011

DATE DELIVERED: 11 June 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 May 2013

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Elleray

SOLICITOR FOR THE RESPONDENT: Belleli King & Associates

Orders

1. That:

   (a)A base amount of $33,388.88 is allocated as required by s 90MT(4) of the Family Law Act 1975 (Cth), to the wife out of the husband Mr Prince’s interest in the AMP Superleader member number …02;

   (b)That, in accordance with s 90MT(1)(a) of the Family Law Act 1975 (Cth):

   (i)The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (ii)The husband’s entitlement and the entitlement of such other person to whom a splittable payment may be made to payments out of the husband’s interest in AMP Superleader member number …02 is correspondently reduced by force of this order;

   (c)That the Trustee of the AMP Superleader (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

   (i)Calculate in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 the entitlement created for the wife by clause 1(b)(i) of this order; and

   (ii)Pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the AMP Superleader member no. …02;

   (d)That this order have effect from the operative time and the operative time is four days after the date of service of this order;

   (e)That the wife shall do all things necessary, including but not limited to, exercising her request pursuant to Rule 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the AMP Superleader to a fund of the wife’s choosing, namely Super Fund B member account no. …96;

   (f)That the Court notes:

   (i)The value of the transferrable benefits from the husband’s interest to the wife’s interest as calculated in accordance with Rule 7A.12 of the Superannuation (Supervision) Regulations 1994; and

   (ii)Pursuant to Rule 14F of the Family Law (Superannuation) Regulations 2001 any payment from the husband’s superannuation interest in the AMP Superleader made after the trustee has created a new interest in the wife’s name in AMP Superleader as contemplated by clause 1(b)(i) of these orders are not splittable payments.

2. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

   (a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date, including all furniture and personal possessions and like chattels in their present possession and/or control.

   (b)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

   (c)All insurance policies to become the sole property of the owners named thereon;

   (d)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;

   (e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

3. Save as to any issues as to costs, the application of the husband filed 15 July 2011 and the response thereto filed by the wife on 19 April 2013 are both dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 20 June 2013 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 4 July 2013 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prince & Prince 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: MLC 3608  of 2011

Mr Prince

Applicant

And

Ms Prince

Respondent

REASONS FOR JUDGMENT

1. On 17 May 2013, the final hearing between Mr Prince (“the husband”) and Ms Prince (“the wife”) was completed.  It had been set down for final hearing by order made on 6 February 2013.

2. The wife was represented by counsel and the husband represented himself.

3. At the hearing on 6 February 2013, an order was made that the wife file an amended response and any affidavits upon which she intended to rely along with a financial statement.  She filed those on time.  At the same hearing, the husband indicated that he did not wish to file any further material in support of the orders that he sought but I gave him leave to file and serve any affidavit material in reply to the proposed material of the wife.  He did not do so.

4. The husband was the applicant having filed proceedings in the Federal Magistrates Court of Australia on 15 July 2011.  He sought both parenting and property orders.  At the time he filed his application, he also filed an affidavit in support of it.  Apart from that material, the husband had no other evidence before the Court.

5. Pursuant to the orders of 6 February, the wife relied upon her amended response together with an affidavit filed 19 April 2013 and a financial statement.

6. The husband said that he did not wish to cross-examine the wife.  I explained to him that her evidence was therefore unchallenged not only because of the lack of cross-examination but also the fact that he had not filed any material.

7. The husband is 44 years of age and the wife 42. 

8. The parties married in 1995 and separated in 2010.  There are three children of the marriage aged 11, 13 and 16 years all of whom live with the wife in rented accommodation.  The husband lives with his parents. 

9. Orders had been previously made in interim proceedings but those related primarily to the parenting dispute.  At the hearing earlier mentioned in February 2013, final parenting orders were made by consent of the parties.  The three children live with the wife and spend time with the husband on alternate weekends as well as overnight on each alternate Thursday. 

10. The hearing in February 2013 was not the only preliminary hearing on the pathway to a final trial.  In November 2012, I made orders requiring the parties to file updated applications and responses so that their minds would be focussed on what issues were in dispute.  At that time, the wife filed the amended response but the husband did not file anything.

11. The parties’ financial background was modestly simple.  They had a home in Suburb C which was sold in February 2011.  The net proceeds of that property were $253,000 from which $41,645 was paid towards outstanding school fees.  The three children attended a private school by arrangement between the parties.  That was an issue raised in the proceedings on 17 May.  The wife had complained that the husband had not made a contribution towards the support of those children’s school fees.  However, the husband observed that the money had been paid out of their joint efforts from the sale of the home and at the time, he had indicated to the school that he could not afford to pay them from his income and that once the arrears were dissipated, the ongoing enrolment in the school would have to be reviewed.

12. After the school fees were paid, the husband was paid $50,000 and the wife received the balance.  She received just over $160,000.  The evidence does not disclose what each of the parties did with the money they received but it is clear from at least the wife’s financial statement that most of it has gone.

13. One of the contentious issues between the parties related to child support.  The wife had apparently sought a review of the assessment alleging that the husband’s declared income did not reflect the reality.  An assessment review was only released immediately prior to this final hearing and the agency adjusted the husband’s income for child support purposes to $44,578.  In his affidavit filed 2 May 2011, the husband said that he was a manager in his parents’ business and was earning $35,000 per annum.  His explanation to the Court for the finding by the Child Support Agency was that they had factored in that he was living with his parents and an allowance had been made for that in his income.  Either way, his income remains modest.

14. I am satisfied therefore that in terms of non-superannuation assets, neither party has anything of substance.

15. This dispute was really about superannuation.  Each party had negotiated on 6 February 2013 and not reached any agreement.

16. In her amended response, the wife sought an order that there be a splitting of the husband’s superannuation such that an amount of $33,388.88 be allocated out of the husband’s interest in the AMP Superleader Member Account.  In his initiating application as amended filed 15 July 2011, the husband did not set out what orders he was seeking and blandly pleaded that he be excused from further particularising his claim pending full and frank disclosure from the wife.  That application was drawn by a lawyer and in my view, having regard to the known circumstances of this case of a financial nature, inappropriately.

17. At the hearing, the husband’s position was that there should not be any splitting of the superannuation entitlements that he had but when I indicated that that did not seem very fair, he generally agreed and indicated that his position was that he would not object to an order for $30,000.

18. The wife’s evidence about the history of the marriage which was unchallenged by the husband show that she was living on a disability support pension and had been so since 2008.  She described her health as poor.  To support the latter contention, she attached numerous reports from doctors.  When I challenged counsel for the wife to indicate how that material was admissible, she conceded that such an approach was not appropriate but the husband indicated that he understood the point but took no objection to that material being taken into account.  That being so, I am satisfied that the wife does not enjoy good health but more importantly, her income in the future will be limited to the pension.

19. The wife has the main responsibility for the three children and at the moment is receiving a limited amount of child support but that will now increase slightly as a result of the child support review to which I have referred.

20. The wife set out the history of the employment of the husband but nothing really turns on that issue.

21. The wife relied upon, and the husband did not deny, his superannuation entitlement as at 30 June 2012 was $105,175.  She made reference to a roll-over of money into that fund but the reality must be that it came from sources within the parties’ relationship.  The wife accused the husband of failing to disclose the correct amount of his superannuation entitlement but in my view, absent some indication that he has a benefit which would leave the Court with some disquiet about his financial position, the evidence is simply speculation.  This case has been in the court lists for a number of years and has had a number of hearings yet nothing came from any process issued by the wife to indicate that the picture of the husband was not correct.

22. There is little doubt that the husband’s taxation return picture was not necessarily the reality and that was a matter accepted by the Child Support Agency.  In my view however, his income is still modest.

23. The wife set out her employment history and the role that she had played but the husband did not dispute in this case any of that evidence.

24. Nothing in the evidence indicates anything other than that this was a marriage in which the wife fulfilled the major responsibility for the homemaker and parent role and the husband was the primary earner.

25. The wife did indicate that she had borrowed $9500 from her mother during the marriage and that she repaid half of that money but the husband had not repaid his one-half share.  It seems to me that that is not an issue that I should give much weight to because the wife’s mother could take such action as she wished if she indeed considered it was a debt.  The wife having repaid one half, her mother could have intervened to pursue the other one half.  That is particularly so in circumstances where the parties divided the proceeds of the sale of the home and there were court proceedings extant.

26. The wife also gave evidence that upon the sale of the home and in preparation of it, she undertook to spend money to assist in the sale and the husband refused to make any contribution.  She put those expenses including the mortgage at $18,035.  Offset against that, however, must be the fact that she had the right to occupy the property and no action was taken at the time of the distribution of the funds to recover any of it.

27. Based on the best information I have, there is no non-superannuation asset against which I could make an adjustment in her favour.  It was not proposed that I make any order in the response filed by the wife on 19 April 2013.

28. Thus, the only property of any real value to which the wife pointed was the superannuation entitlements of the husband and that evidence was not disputed by him. 

29. I find therefore that to the extent that superannuation is property for the purposes of the Family Law Act 1975 (Cth) (“the Act”), the husband has $108,416.97 which is now the updated figure to 29 January 2013 and the wife has $41,639.20 updated as at 16 January 2013. It would appear that the trustee in both cases is AMP Superleader. The trustee had been put on notice of the potential for an order being made and I was advised that there was no objection to any splitting order being made.

30. Section 79(2) of the Act provides that a court shall not make an order altering the interests of the parties in property unless it is satisfied that it is just and equitable to do so. Having found that the only property that either party has of value is the superannuation interests that each of them has to which I have referred, it would not be just and equitable not to make an order here having regard to the disparity in the respective member balances.

31. For the purposes of assessing what order is just and equitable, s 79(4) of the Act must be examined. Most of the matters in that section relate to contribution but not all. For the purposes of the contributory issues, I am satisfied that throughout the relationship, the parties contributed equally. To the extent that the wife has contributed more since the separation, I am satisfied that she also had the benefit of the home and child support albeit probably not to the correct level. I would make no adjustment for contribution purposes.

32. Section 79(4)(e) requires the Court to consider such of the matters in s 75(2) of the Act as are relevant. In this case, an overview of each of those matters indicated that there is a clear disparity between the parties’ economic circumstances albeit not significant. The wife has the greater responsibility for the children than does the husband and he pays child support as assessed albeit it is not of significance. The wife because of her health considerations is reliant upon Centrelink benefits and that situation is unlikely to change. I take into account her health position which is set out clearly in her affidavit and which the husband does not dispute.

33. I have no evidence as to the possibility of either party having a person supporting them so I have presumed that the financial position is as articulated by the wife and not disputed by the husband.

34. In my view, there is a justification for an adjustment in the wife’s favour having regard to her health, responsibilities for the children and the fact that she is a pension recipient. 

35. Superannuation in this case is of some significance because the wife apparently has made inquiries and is entitled to obtain some of the benefits notwithstanding she has not reached the retirement age because of hardship grounds.  To that extent, the funds will provide some assistance to her if she can access them.  Clearly, the husband cannot and will not be in a position to do so for many years.

36. Counsel for the wife submitted that I could go outside of the parameters set by the wife in her amended response and direct a splitting order greater than the sum sought.  Whilst I accept that is the legal position, I take into account that the pleading by the wife was filed and served subsequent to the hearing in February at which time, that very discussion took place.  The wife chose not to seek a sum greater than that set out in her application.

37. Having regard to the contributions that the parties have made and the greater need for assistance as I have set out favouring the wife, in my view the order that she has sought as a splitting order, would be a just and equitable outcome. 

38. If an order was made of the amount sought by the wife, she would notionally be entitled to superannuation of $75,000 or thereabouts and the husband would be entitled to something very similar. 

39. Having regard to the fact that the parties split the cash proceeds of the sale and the wife benefitted much more significantly than did the husband albeit that sum has now gone, it would not be a just and equitable outcome for either party to receive more than approximately 50 per cent of the extant superannuation entitlements.  For those reasons, I propose to make an order that the amount of $33,388.88 be split from the husband’s superannuation in the usual way.

40. The only other assets that the parties have seem to be motor vehicles and a small amount of cash or shares.  Having regard to the fact that neither party sought orders in respect of the alteration of those interests, I do not propose to make any further adjustment because it would not be just and equitable to do so.

41. Counsel for the wife indicated that a costs application may be likely and because the husband was unrepresented, I thought it appropriate to give him an opportunity to consider the reasons for any order being made and then a written submission can be filed by either party should they so desire and I propose to make orders to give effect to that concept. 

I certify that the preceding Forty One (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 June 2013.

Associate: 

Date:  11 June 2013