Silver and Woden

[2016] FamCA 120

FAMILY COURT OF AUSTRALIA

SILVER & WODEN [2016] FamCA 120

FAMILY LAW – PROCESS AND PROCEDURE

APPLICANT: Ms Silver

RESPONDENT: Mr Woden

FILE NUMBER: WOC 367 of 2013

DATE DELIVERED: 2 March 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 24 February 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Bailey Mullard Lawyers

THE RESPONDENT: In Person

Orders

IT IS ORDERED

1. That pursuant to section 9MU(1)(a) of the Family Law Act1975 (Cth) (“the Act”) the Court orders the trustees of the husband’s (Mr Woden born …1951) superannuation accounts, BT Lifetime Super – Employer plan (D Pty Ltd)(Member number …) be restrained by injunction from making any splittable payment to the husband in respect of his interest in that account without the leave of the Court.

2. That pursuant to section 90MU(1)(b) of the Act the Court orders the trustees to notify the solicitors for the wife (being Bailey Mullard Lawyers Pty Limited) and the husband, within 28 days of the next occasion when a splittable payment becomes payable in respect of the husband’s interest.

3. That the operative time in respect of the flagging order is four working days from the date of a copy of this sealed order being served on the trustee of the fund.

4. That pursuant to section 114 of the Act the husband shall be restrained by injunction from dealing with his superannuation interest held by BT Lifetime Super (Member number …) including a transfer or claim on such funds without the leave of the Court.

5. That the wife’s costs of this application be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Silver & Woden 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 SYDNEY

FILE NUMBER: WOC  367 of 2013

Ms Silver

Applicant

And

Mr Woden

Respondent

REASONS FOR JUDGMENT

1. Property proceedings between Mr Woden (“the husband”) and Ms Silver (“the wife”) have been on foot since about October 2013.

2. On 12 August 2015, the parties were ordered to file all affidavits upon which they sought to rely by 4pm on 4 December 2015. Also on that day the Court noted that the parties had agreed that the property which was owned by the husband at Town H, Queensland, had a value of $800,000 and orders were made for the valuation of shares in E Pty Ltd (“E”) owned by the husband. In order to value the shares in E, it was necessary to value the shares in another company owned by E and that company’s underlying real estate.

3. On 27 March 2015, the wife filed an application for a flagging order in relation to the husband’s superannuation entitlement.

4. When the matter came before the Court for call-over on 18 January 2016, the matter was not ready for trial as the husband had not filed his trial affidavit. The wife sought to agitate her Application in a Case in relation to the flagging order and directions were made that the husband file and serve any affidavit upon which he sought to rely in relation to the Application in a Case, and the matter was stood over to 24 February 2016 to be determined.

5. When the matter came before the Court on 24 February 2016, the wife relied upon her affidavit sworn 6 March 2015, and a further affidavit sworn on 17 February 2016. The wife also relied upon written submissions prepared by her solicitor.

6. The husband relied upon his affidavit sworn on 17 February 2016. He had been provided with a copy of the wife’s material, including the written submissions, and indicated to the Court that he did not wish to say anything in response to the written submissions.

7. The wife seeks an order that the trustees of the husband’s superannuation account be restrained by injunction from making any splittable payment to the husband in respect to his interest in that account without the leave of the Court.

8. The wife also seeks orders that the husband be restrained from dealing with his superannuation interest without the leave of the Court.

9. The husband opposes the making of those orders.

10. The substantive proceedings in relation to property settlement have yet to be heard. It is unlikely that a date will be fixed before July 2016.

11. There appear, in the absence of the husband’s trial affidavit having been filed, to be three assets upon which the wife makes a claim. The first asset is the property in the sole name of the husband, that being the Town H property. There is no current evidence about the amount secured by way of mortgage over the Town H property, but in previous documents relied upon by the husband, it has been asserted that the mortgage secured over the Town H property is $980,000.

12. There is no evidence before the Court, about the value of the husband’s interest in E.  E owns one third of the shares in F Pty Ltd (“F”). F owns real property. It is necessary to value the real property owned by F in order to ascertain the value of E’s shares in F. It is not possible to say whether or not the shares in E have any, or any significant value.

13. The only remaining asset of the husband is his superannuation interest which, as at January 2016, has a value of $122,400.

14. In his affidavit sworn on 17 February 2016, the husband deposes:

    I am approaching the retirement age and will do so on …. Due to the legislation, I could have retired at age 55 and withdrawn my superannuation, however there is only enough in the fund to support me for maybe five years. I have chosen to continue my working career so as to accumulate more funds for my retirement.

    If I do not have sufficient funds when I do retire I will have to fall back on the public purse (pension), as I have considerable mortgage debt which I will not be able to service.

15. The wife contends that the proceeds of the superannuation fund which will become available to the husband on 16 April 2016, may be the only asset from which any entitlement she may have to property settlement could be satisfied.

16. In circumstances where the husband does not consent to any flagging or restraining order and gives no undertaking that he will not dispose of the funds, it is appropriate that orders should be made as sought by the wife so as to preserve the asset until the final determination of the proceedings.

COSTS

1. The wife also seeks an order that within 28 days the husband pay the costs of the application in the sum of $1,000. In my view it is not appropriate to deal with that application until such time as the assets and liabilities of the parties have been clarified by the filing of trial affidavits and the costs of the wife will be reserved.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 March 2016.

Associate: 

Date:  2 March 2016