Rinsky and Rinsky
[2008] FamCA 427
•18 June 2008
FAMILY COURT OF AUSTRALIA
| RINSKY & RINSKY | [2008] FamCA 427 |
| FAMILY LAW – PRACTICE AND PROCEDURE – husband seeks summary dismissal of wife’s application pursuant to s 79A to set aside final property settlement orders made in 1998 – included order that the husband pay the wife an amount upon receipt of his superannuation entitlement, calculated pursuant to specified formula – whether husband’s retirement 4 days early resulted in any miscarriage of justice – whether miscarriage of justice due to husband’s failure to take lump sum which included a capital sum based upon husband foregoing any pension – final property orders made on basis husband would not capitalise all pension entitlement – pension taken into account at trial – whether court incorrectly made purported order for spousal maintenance under s 79 – reference to definition of “property” in 1998 – no reasonable cause of action – s 79A application “doomed to fail” – application for final orders summarily dismissed. |
| Family Law Act 1975 (Cth) ss 79 & 79A Family Law Rules 2004 (Cth) r 10.12 |
| Lindon v Commonwealth (No 2) (1996) 70 ALJR 541 Bigg v Suzi (1998) FLC 92-799 Beck and Beck (2004) FLC 93-181 Gitane and Velacruz (2007) FLC 93-309 Goldman and Goldman [2007] FamCA 578 Korsky and Bright and Anor [2007] FamCA 245 T and T (Pension Splitting) (2007) FLC 93-263 |
| APPLICANT: | Mrs Rinsky (By her Case Guardian Ms M) |
| RESPONDENT: | Mr Rinsky |
| FILE NUMBER: | ADC | 6404 | of | 2007 |
| DATE DELIVERED: | 18 June 2008 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 1 April 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | Self-Represented Case Guardian – Mr M |
| COUNSEL FOR THE RESPONDENT: | Mr Richards |
| SOLICITOR FOR THE RESPONDENT: | Scales & Partners |
Orders
That the application of the wife filed on the 19 December 2007 for final orders be dismissed.
I will hear parties in relation to the application for costs.
IT IS NOTED that publication of this judgment under the pseudonym Rinsky & Rinsky is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 6404 of 2007
| Mrs Rinsky (By her Case Guardian Mr M) |
Applicant
And
| Mr Rinsky |
Respondent
REASONS FOR JUDGMENT
Introduction
The husband seeks the summary dismissal of the wife’s application to set aside the final property settlement orders made at the conclusion of proceedings in 1998 and 1999.
Background and Chronology
The wife filed an Application for Final Orders on the 19 December 2007 in which she sought orders to set aside the order made at paragraph 1(d) of the final property settlement orders made by Judicial Registrar Forbes on the 24 December 1998. The wife sought other orders in relation to the husband’s superannuation. The orders sought are set out in the Final Orders Application (document 1) filed on the 19 December 2007:
“1.To set aside the order made at paragraph 1(d) of the original court order and make another order for both parties to return to court and finalise the respondent’s superannuation withdrawal benefit under sections 79, Part VIIIB of the Family Law Legislation Amendment (Superannuation) Act 2001 which allows for pension splitting.
in the alternative
2.To set aside the order made at paragraph 1(d) of the original court order and make another order for the respondent to pay a further sum of $18,090 to the applicant and for the applicant to receive 45% of the respondent’s superannuation payable pension (retrospectively). That is, divide the respondent’s superannuation payable lump sum of $190,898 and payable pension in the ratio of 55% to the respondent and 45% to the applicant, pursuant to sections 79 and 90MT of the Family Law Legislation Amendment (Superannuation) Act 2001.
in the alternative
3.To set aside the order made at paragraph 1(d) of the original court order and make another order for the respondent to pay a further sum of $137,926 to the applicant, as calculated by the West and Green mathematical formula.
If justice and equity is to be done, to capitalise the respondent’s payable pension on exit from his Fund Scheme and apply it to the West and Green mathematical formula, as shown below:
(respondent’s capitalised pension = $383,793) x 1/2 x 23/32 = $137,926
4.To delete paragraph 1 from the original court order and to quote paragraph 1: “That in full and final settlement of the claims of the parties for property settlement and by way of spousal maintenance”, and make another order that allows the applicant to institute proceedings for additional spousal maintenance out of time.
5.For each part to pay their own court costs.
6.That such orders or other orders as this Honourable Court deems meet (sic).”
By Application in a Case the husband seeks the summary dismissal of the final orders application.
The parties were married in December 1972. They separated in October 1996.
Proceedings for property settlement were commenced in the Family Court of Australia in March 1997.
A hearing in relation to final property settlement and the wife’s application for spouse maintenance was heard by way of trial before Judicial Registrar Forbes in November and December 1998. Both parties were represented by counsel. Judicial Registrar Forbes delivered his judgment on the 22 December 1998. His reasons for judgment occupy 44 pages. Orders by way of final property settlement and capitalised spousal maintenance made on the 24 December 1998 are as follows:
‘That in full and final settlement of the claims of the parties for property settlement and by way of spousal maintenance:-
(a)the wife do pay to the husband the sum of $37,757-00 on or before the 15th February 1999;
(b)contemporaneously, the husband do transfer to the wife the whole of his estate and interest in the former matrimonial home situate at […], being the whole of the land comprised and described in Certificate of Title Register Book Volume […]Folio […];
(c)each party do otherwise retain all such other items of personalty as are currently within their respective power or possession;
(d)upon the termination of the husband’s employment and the receipt by the husband of his superannuation entitlements, the husband do pay to the wife a sum calculated with reference to the following formula, viz;
Years of marriage (23) x Lump sum pay out
Years of participation 2
In Compsuper schemeAND THE COURT DECLARES that these are orders to which the provisions of Section 77A of the Family Law Act apply and the amount attributable to the lump sum maintenance of the wife is $24,910-00.
2.That in default of payment to the wife of the whole or any part of the sum referred to in paragraph 1(a) hereof, then the former matrimonial home shall be sold on terms to be agreed between the parties, and in default of agreement on terms ordered by the Court, to the intent that from the net proceeds of sale the husband be paid the said sum or so much of same as is outstanding, together with interest on the outstanding balance calculated from the date of default until the date of payment and at the rate prescribed in the Family Law Rules.
Liberty to apply.”
On the 22 January 1999 the wife filed an application to review the Judicial Registrar’s orders. The review was heard by me in July 1999 and judgment delivered on the 24 September 1999. Both parties were represented by counsel at the trial before me.
The orders I made on the 24 September 1999 dismissed the wife’s application for review, thus maintaining the orders of Judicial Registrar Forbes.
In the wife’s original application the wife sought the adjournment of the property settlement proceedings until the husband received a redundancy payment, retired, resigns or dies whichever is the earlier event.
Again, at the hearing in the review before me the wife sought an interim property settlement and an adjournment of the final property settlement proceedings until the husband’s superannuation had vested.
At the hearing before Judicial Registrar Forbes submissions were made on behalf of the husband that he was planning to remain in employment at least until he is 55 years of age and that he was committed to staying employed until he was 55 if employment continued to be available.
Annexed to the affidavit of the wife filed on the 19 December 2007 is the transcript of the hearing before Judicial Registrar Forbes on the 9 November 1998, including page 16 examination-in-chief of the husband by Mr Richards as follows:
“MR RICHARDS: Mr [Rinsky], can I just indicate that the microphone isn’t an amplifier and with the air conditioning we just need you to keep your voice up a bit and project it across the room so that all of us here can hear what you have to say. Just at my friend’s instigation, your Honour, and quite properly there is just a matter I need to raise in relation to the pension and superannuation.
Mr [Rinsky], you heard what I told his Honour about the options for your retirement allowances at separation? ---Yes.
We have agreed that subject to your employer keeping on with your employment that you will be there at 55 and go at that time? ---I intend to.
Now, have you formed a view, subject to these projections that have been provided by your employer being correct, have you formed a view as to which of the options you will take? ---I would need to take the lump sum and use that and then get whatever pension was available to me.
Right, and when you say the lump sum you mean the greater lump sum rather than the smaller lump sum? ---Yes, the greater lump sum.
That being 23,000 pension and 105,000 lump sum? ---Yes.”
Also annexed to the wife’s affidavit is the transcript of the 11 November 1998 when discussions took place between Mr Richards, counsel for the husband, and Judicial Registrar in which it was conceded that the husband would be receiving a pension after retirement.
Reference was also made by counsel to proposals which indicated that upon retirement the superannuation would provide the husband “with a substantial lump sum upon his retirement and a guaranteed pension for the balance of his life.” (See transcript 12 November 1998 page 6 annexed to the wife’s affidavit of the 19 December 2007).
In April 2005 the husband resigned from his employment. This was four days before he attained the age of 55 years.
Annexed to the affidavit of the husband filed on the 22 February 2008 is a copy of an email dated the 10 January 2007 from the husband’s superannuation fund to the husband which says in part:
“had you retired on [the husband’s birthday in] April 2005 and claimed your entitlement on this date the value of the lump sum payment would have been the same as the lump sum you received by resigning from employment [four days earlier] and claiming your entitlement on [the birthday].”
On the 16 June 2005 the wife received a letter and a cheque for the sum of $66,814.06 from the solicitor for the husband being the proportion the husband’s solicitors asserted was due to the wife pursuant to the final orders for property settlement.
The wife accepted the cheque by writing to the husband’s solicitors asserting that the money was accepted as “a down payment or part-payment pending legal advice on this matter”. (Paragraph 27 of the wife’s affidavit filed on the 19 December 2007 – document 2).
The wife commenced her proceedings seeking orders under section 79A by her application for final orders filed on the 19 December 2007.
On the 21 February 2008 at an interim hearing before me, Mr M, the wife’s brother appeared as McKenzies Friend. It was noted that he would apply for an appointment as Case Guardian for the wife because of her mental health. On the 19 March 2008 I appointed Mr M as Case Guardian for the wife in these proceedings.
The husband asserts in his affidavit filed on the 22 February 2008 that in 2006 the wife sought leave to appeal my decision being the Review orders made in September 1999. He asserts that approximately 18 months later the wife withdrew the application for leave to issue the appeal out of time and paid costs.
Hearings
On the 1 April 2008 I heard the submissions of the parties and received documents from the parties in relation to the application by the husband for summary dismissal of the wife’s proceedings. Mr Richards of counsel appeared for the husband. Mr M, Case Guardian, appeared unrepresented.
On the 6 June 2008 I heard further submissions and received exhibits and a further affidavit of the husband to which was annexed further correspondence from the husband’s superannuation fund.
Law on Summary Dismissal
Rule 10.12 of the Family Law Rules 2004 provides:
“Application for Summary Orders
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
…
(c) it is frivolous or vexatious or an abuse of a process; or
(a) there is no reasonable likelihood of success.”
The decision of Justice Kirby of the High Court in Lindon v Commonwealth (No 2) (1996) 70 ALJR 541 has often been referred to when the Family Court has been asked to consider summary dismissal of an application.
I refer to the Full Court’s decisions of Bigg v Suzi (1998) FLC 92-799, Beck and Beck (2004) FLC 93-181. In the decision of Gitane & Velacruz (2007) FLC 93-309 Justice Kay referred to the decisions of Lindon v Commonwealth (No 2) (Supra) and Bigg and Suzi (Supra) and at paragraph 25 said:
“25. I paraphrase the salient points as follows:
(1)that relief for summary dismissal is rarely and sparingly provided;
(2)that it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;
(3)that it is not enough to attain summary dismissal to show that it is a weak case;
(4)that there is a defect in the pleading and it appears that the party still has a reasonable cause of action, the Court will allow the party to reframe its pleading; and
(5)that one only summarily dismisses if it is clear that the case is doomed to fail.”
See also Goldman and Goldman [2007] FamCA 578 and Korsky and Bright and Anor [2007] FamCA 245.
Section 79A and Discussion
Section 79A(1)(a) provides:
“(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;”
The decided cases have construed the terms ‘miscarriage of justice” and the reference to “any other circumstance” widely.
The wife also appears to rely on Section 79A (1)(c):
“(c)A person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances, that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order.”
However, one of the conditions to establish this ground is that a person must have defaulted in carrying out an obligation imposed upon him by the original order. There is no default by the husband which has been established because the original order for property settlement did not specify the husband’s date of retirement.
In paragraph 5 of the affidavit filed on the 7 February 2008 the wife refers to the order being “unfair” and states:
“The reason for the unfairness is that at the time of the trial hearing, the husband’s unvested component of his superannuation interest, (ie his payable pension) was omitted as s75(2) factor, to adjust the remaining property, appropriately, under s79 Application proceedings.”
In the outline of case documents filed on the 18 February 2008 and the 28 March 2008 the document filed on behalf of the wife refers in detail to the possibility that the decision was unjust because:
“any reasonable person is able to conclude that something has gone amiss in the division of the Applicant’s superannuation interest between the parties because the result flowing from this order at paragraph 1(d) of the Court is so unreasonable or plainly unjust that it falls outside a reasonable exercise of discretion, and outside the parameters of s79(2) of the Family Law Act. Ultimately, there has been a failure to attain justice according to law.” (Page 3 of Applicant’s submissions).
The submissions then refer to the authority of T & T (Pension Splitting) (2006) FLC 93-263 which refers to the value of a pension and in particular valuation of an entitlement to a pension (and the references to defined benefit schemes).
The main factor asserted by the wife as indicating that there has been a miscarriage of justice is the fact that the husband did not take a lump sum on retirement which included, not merely a lump sum component, but also a capital sum based upon the husband foregoing any pension.
The husband’s counsel concedes that if the husband had foregone any pension and obtained a sum by way of superannuation which represented the capitalised pension, as well as the lump sum component, that amount would have been significantly greater than the lump sum component which he obtained.
However, the evidence of the previous hearings before the Court as indicated in the judgments of Judicial Registrar Forbes and myself, clearly show that it was at all times contemplated that the husband would take a “pension component”.
The decision of Judicial Registrar Forbes, in particular, clearly indicates that the final property settlement orders were made on the basis that it was anticipated that the husband would not capitalise all his pension entitlements at the time of retirement at age 55.
The wife asserts that she has not received a “proper entitlement of the applicant’s superannuation interests”. However, the decisions of the Court made in the final property settlement proceedings, according to the law in force in 1998 and 1999, indicate that the Court gave consideration not only to the adjustments to be made for the lump sum component (being a lump sum component not including a capitalisation of all the pension entitlement) but also took into account the husband’s likely entitlement to an ongoing pension from his superannuation in contrast to the wife’s anticipated financial circumstances.
The wife has not produced any material to establish that the retirement of the husband four days earlier forms a basis for any miscarriage of justice. Indeed, the correspondence indicates that the husband would have received the same amount of lump sum and thus the amount payable to the wife would not have changed.
The main argument of the wife appears to be the alleged miscarriage of justice due to the wife not receiving an amount on account of the capital value of the husband’s superannuation periodic pension. It is clear from the facts that in the final property settlement orders the wife has not received a specific sum which represents an amount calculated upon the capitalised value of the periodic pension payable to the husband. However, the pension itself was taken into account at paragraph 31 on page 32:
“This is likely to continue at its present level of $49,000 per annum until he is 55 years. That is some 7 years hence. If he then retires he will have a pension entitlement of $20,398.00 per annum or $392.00 per week.” (Judicial Registrar’s judgment).
When referring to the request of both parties that any spousal maintenance sum received by the wife should be capitalised, the Judicial Registrar said at page 43:
“If I am to look at capitalisation then I would be unwilling to assess the claim beyond the husband’s 55th birthday. He is emphatic that this is the date when he will retire. If he is shown to be correct then it is also the date when he will receive his superannuation. There is the possibility already mentioned of his being made redundant before then. This then is a date which represents significant financial change for the husband. He will be eligible for a pension of $20,000 per annum, an amount which of itself would suggest that the husband’s maintenance liability would be seriously diminished.”
In the wife’s outline of case filed on the 28 March 2008 the submissions are made on behalf of the wife that the order of the Court was incorrect when it purported to make an order for spousal maintenance under section 79 of the Act. The order of the Court does not purport to make an order under section 79, rather it is phrased to be “in full and final settlement of the claims for property settlement and by way of spouse maintenance.” The order specifically refers later to the amount to be attributable to lump sum maintenance. There is no basis for such a proposed ground to establish miscarriage of justice.
One of the submissions on behalf of the wife appears to be reference to the definition of “property” which in 1998 and 1999 did not include superannuation. The order of the Court made on the 24 December 1998 does not purport to deal with the husband’s superannuation, but sets out a formula to be used to calculate a further sum payable to the wife by the husband taking into account the amount he received by way of lump sum component.
This ground therefore is also without any merit.
Changes made to the law concerning superannuation since 1999 do not establish that there has been any miscarriage of justice in this matter.
Summary and Conclusions
I specifically take into account that the proceedings should not be summarily dismissed if there is merely a weak case. The evidence and arguments provided on behalf of the wife do not establish a reasonable cause of action. Having considered all of the arguments put on behalf of the wife it is clear that the application of the wife under section 79A is doomed to fail.
The application for final orders filed by the wife on the 19 December 2007 should therefore be summarily dismissed.
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 18 June 2008
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