SCAVO & SCAVO

[2019] FCCA 471

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCAVO & SCAVO [2019] FCCA 471

Catchwords:
FAMILY LAW – Property – standing – where the applicant is an undischarged bankrupt and his trustee in bankruptcy has decided not to intervene – whether a s.79(5) adjournment should be granted until the bankrupt is undischarged – whether the bankrupt has standing in relation to superannuation funds – where superannuation funds have been transferred from the fund to a party's bank account – whether these funds cease to be superannuation.

Legislation:

Bankruptcy Act 1966 (Cth), ss.5, 58, 60, 116, 149, 149A, 178

Family Law Act 1975 (Cth), ss.79, 117

Family Law Rules 2004, rr.6.17, 6.18, 6.19, 6.20

Federal Circuit Court Rules 2001, r.1.05

Income Tax Assessment Regulations 1997, reg.995.1.03 (now repealed)

Superannuation Industry (Supervision) Act 1993 (Cth)

Superannuation Industry (Supervision) Regulations 1974, reg.1.06

Cases cited:

C & C [2001] FamCA 548

Trent & Rowley [2014] FamCA 447

Applicant: MR SCAVO

Respondent: MS SCAVO

File Number: SYC 2101 of 2018

Judgment of: Judge Kemp

Hearing date: 21 February 2019

Date of Last Submission: 21 February 2019

Delivered at: Sydney

Delivered on: 4 March 2019

REPRESENTATION

Solicitors for the Applicant: Slattery Thompson Solicitors

Solicitors for the Respondent: Lane & O’Rourke Solicitors

THE COURT ORDERS THAT:

1. The proceedings be adjourned under s.79(5) of the Family Law Act 1975 (Cth) until 8 October 2019 at 9.30am for mention.

2. Seven (7) days prior to the adjourned date, the husband file, with the Court and serve on the wife, evidence of his discharge from bankruptcy.

3. Liberty to apply on 7 days’ written notice.

4. The wife’s costs of today be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Scavo & Scavo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2101 of 2018

MR SCAVO

Applicant

And

MS SCAVO

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant husband (“the husband”) seeks final property orders, as set out in his Amended Initiating Application filed on 1 June 2018, which were to the following effect:

   (1)That the monies from the sale of the property known as A Street, Suburb B (“the Suburb B property”) be divided equally between the parties; and

   (2)That the superannuation policies monies and the redundancy monies are to be divided equally between the parties.

2. The respondent wife (“the wife”), on the other hand, seeks final orders, as set out in her Response filed on 5 July 2018, which were to the following effect:

   (1)That the [husband’s] Amended Initiating Application be dismissed; and

   (2)Costs.

3. The matter for determination today, however, relates to a jurisdictional argument identified before the Court, as to the following matters:

   a)Does the husband have standing when the husband is an undischarged bankrupt and his Trustee in Bankruptcy has notified the Court that, after enquiry, the Trustee has decided not to intervene?

   b)When superannuation funds are transferred from the wife’s Superannuation Fund to her bank account,…