SISCO & BOOTHE

[2019] FCCA 2976

FEDERAL CIRCUIT COURT OF AUSTRALIA

SISCO & BOOTHE [2019] FCCA 2976

Catchwords:
FAMILY LAW – PROPERTY – the Wife’s application for property orders – the Husband has not filed any material and has not participated in proceedings save for one appearance at an interim hearing – the matter proceeded on an undefended basis.

HELD – orders made for a superannuation split in relation to the Husband’s superannuation with a base amount of $50,000, such that the Wife receive 65% of the parties’ asset pool for division and the Husband receive 35% of same.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79(2), 79(4).

Cases cited:

Stanford & Stanford [2012] FCA 52

Hickey and Hickey and Attorney General for the Commonwealth of Australia [2003] FamCA 395

Bevan and Bevan [2013] FamCAFC 116

Applicant: MS SISCO

Respondent: MR BOOTHE

File Number: MLC 3385 of 2019

Judgment of: Judge Bender

Hearing date: 9 October 2019

Date of Last Submission: 9 October 2019

Delivered at: Melbourne

Delivered on: 9 October 2019

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: No appearance

Solicitors for the Respondent: Not applicable

ORDERS

1. The matter be adjourned to 11 February 2019 at 9:30am for mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLC 3385 of 2019

MS SISCO

Applicant

And

MR BOOTHE

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This matter relates to a property application that has been brought by the Wife. She seeks orders be made in relation to the only significant asset of the parties for division, being the Husband’s superannuation. 

2. The Wife’s application first came before the Court on 18 June 2019. On that date it was apparent that the Wife’s Initiating Application and supporting documentation had not been properly served on the Husband, as they had only been posted to him. Orders were therefore made that required personal service of the application on the Husband and the matter was adjourned to 9 August 2019. 

3. On 26 June 2019 administrative orders were made relisting the matter from 9 August 2019 to 21 August 2019.

4. In accordance with the orders of 18 June 2019, personal service was effected upon the Husband. The matter returned to Court on 21 August 2019. On that date the Husband attended Court. Orders were made requiring the Husband to file responding material by 4:00pm on 20 September 2019 and the matter was otherwise adjourned to 9 October 2019 for hearing. A further order was made that in the event the Husband did not file responding material by 20 September 2019 the Wife would have leave to seek orders be made on the adjourned date on an undefended basis.

5. Given the orders sought by the Wife in this matter, on 21 August 2019 the Wife was also ordered to cause a copy of the her Initiating Application to be served on the Husband’s superannuation fund, A Fund for the purposes of affording the fund procedural fairness.

6. Today the Husband has not attended Court. He has not filed any responding material in accordance with the orders of 21 August 2019.

7. Given the Husband’s non-attendance at Court today and his non-compliance with the Court’s orders for filing of material, it is the Wife’s application today that I should proceed with this matter in his absence.

8. Given the circumstances outlined above, I intend to do so. 

9. The parties commenced their relationship in 1999, commenced cohabitation in June 2000 and married on … 2007. They separated on a final basis on 30 October 2016. 

10. The parties have three children of their relationship: [X] who is now 17, [Y] who is 14, and [Z] who is 6.

11. [X], [Y] and [Z] all reside with the Wife. They spend very limited time with the Husband. [X] has special needs. The Husband is assessed to pay child support, but it is the Wife’s evidence he is in arrears.

The law

1. Section 79 of the Family Law Act 1975 (“the Act”) defines the Court’s powers in determining applications for property settlement. Section 79(2) of the Act provides that:

   “The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”

2. Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:

   “(a)   the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d)the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e) the matters referred to in subsection 75(2) so far as they are relevant; and

   (f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.”

3. The matters to be taken into account under section 75(2) of the Act are as follows:

   “(a)   the age and state of health of each of the parties; and

   (b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

   (c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (d)commitments of each of the parties that are necessary to enable the party to support:

   (i)     himself or herself; and

   (ii)     a child or another person that the party has a duty to maintain; and

   (e)the responsibilities of either party to support any other person; and

   (f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)          any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)     any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party; and

   (g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

   (ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

   (j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

   (k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

   (l)the need to protect a party who wishes to continue that party's role as a parent; and

   (m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

   (n)the terms of any order made or proposed to be made under section 79 in relation to:

   (i)     the property of the parties; or

   (ii)     vested bankruptcy property in relation to a bankrupt party; and

   (naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)     a party to the marriage; or

   (ii)     a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)   the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

   (iv)    vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

   (na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

   (o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)the terms of any financial agreement that is binding on the parties to the marriage; and

   (q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.”

4. The High Court in the matter of Stanford v Stanford [2012] HCA 52 held that prior to making orders for the division of the property in which the parties have an equitable interest in accordance with the provisions of section 79 of the Family Law Act 1975 (“the Act”), the Court must first determine that is just and equitable that the Court make such orders. 

5. Prior to the decision in Stanford (supra), a trial judge would follow the four step approach in determining how to alter property interests between the parties as articulated by the Full Court in Hickey and Hickey and Attorney General for the Commonwealth of Australia [2003] FamCA 395.

6. The four step process set out in Hickey is as follows. Firstly, the Court will determine the nature of the property pool and attribute valuations. Secondly, the Court considers the contributions of the parties to the property pool including direct and indirect financial contributions and non-financial contributions often in the form of homemaker or parent. Thirdly, and after considering entitlements based on contributions the Court determines whether any further adjustments to either parties entitlement is proper, given the considerations under s.75(2) of the Act. Finally, the Court stands back and considers whether the proposed division of the property is just and equitable pursuant to section 79(2) of the Act.

7. The High Court in Stanford (supra) and subsequently the Full Court in Bevan and Bevan [2013] FamCAFC 116 observed that this four step approach should not be rigidly followed.

8. However, the Full Court in Bevan (supra) also indicated that in the majority of property cases, the four step approach is an appropriate manner in which to approach the determination of the division of properties between parties once the Court is satisfied that such division is just and equitable.

9. I am satisfied that this is a matter where the four step approach of Hickey is the appropriate approach to be taken to determine a just and equitable division of property between the parties.

10. As indicated at paragraph [1] of this judgment, the only real asset of the parties available for division is the Husband’s superannuation entitlement.

Assets

1. The Wife is seeking orders there be a splitting order in her favour from the Husband’s superannuation. Annexed to the Wife’s affidavit sworn 30 March 2019, is a Form 6 that has been provided by the Husband’s superannuation fund. It discloses an entitlement of $89,510 as at the date of the Form 6, being 3 October 2018.

2. Given the majority of superannuation funds appear to have had positive returns for their members over the previous 12 months, it is safe to therefore assume that the Husband’s entitlement in the fund will have increased since the date of the Form 6 referred to in the preceding paragraph.

3. The Wife’s current superannuation entitlement is $21,219.

Contributions/section 75(2) factors

1. The Wife’s evidence is she has been the sole carer of the parties’ three children since separation in October 2016, with little to no support either practically or financially since separation. It is her evidence this will continue to be the case going forward.

Just and equitable

1. In circumstances where the only asset of the parties is the Husband’s superannuation after what has been a lengthy relationship of some 16 years and where the Wife has been the primary carer of the parties’ three children, I am of the view that the application before me is appropriate and orders should be made that would see the Wife receive from the Husband’s superannuation fund a splitting order with a base amount of $50,000.

2. On the figures currently before the Court, the total superannuation of the parties is $110,000. Therefore, an order in these terms would see a division between the parties such that the Wife would have 65 per cent of the parties’ superannuation and the Husband 35 per cent of the parties’ superannuation. Given the Wife has the primary care for [X], [Y] and [Z], it is only appropriate that she should receive a greater amount of superannuation than as does the Husband because she will have those responsibilities going forward.

3. In accordance with my orders of 21 August 2019, the Wife forwarded the orders sought by her in these proceedings to A Fund, who act as trustees for B Superannuation fund. In response to the Wife’s correspondence, the fund have unfortunately been unclear about they do or do not require, which precludes the possibility of final orders being made today.

4. In these circumstances, my chambers will communicate with the Trustee of the superannuation fund and provide them with procedural fairness in the terms they require.

5. In the interim, the matter will be nominally adjourned, with such adjourned date to be vacated and final orders made upon proof of procedural fairness form the Trustee of the Husband’s superannuation fund.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Bender.

Associate: 

Date:     16 October 2019