Stocks and Allen

[2015] FamCA 837

FAMILY COURT OF AUSTRALIA

STOCKS & ALLEN [2015] FamCA 837

FAMILY LAW – PROPERTY – Interim – Where the wife seeks orders to restrain the husband from accessing capital, including superannuation, pending the hearing and determination of the substantive proceedings – Where the husband has been diagnosed with cancer and seeks interim orders including an order that the hearing of the trial be expedited – Wife’s application dismissed – Order that one property be listed for sale – Order for payment of outstanding accounts and rates – Order that the hearing of the trial be expedited.

Family Law Act 1975 (Cth)

APPLICANT: Ms Stocks

RESPONDENT: Mr Allen

FILE NUMBER: BRC 8509 of 2011

DATE DELIVERED: 8 October 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 21 September 2015

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT:

Ms French

Family Legal

Orders

1. That the wife’s Application in a Case filed 21 August 2015 is dismissed.

2. That the hearing of the competing substantive applications of the parties for property adjustment orders be expedited.

3. That the proceedings be listed before his Honour Justice Forrest at 9.00 am on Thursday, 15 October 2015 for further mention, the further consideration of trial listing and any trial directions considered necessary.

4. That the parties take all steps necessary, including signing any cheques that are necessary to be signed, to ensure that their self-managed superannuation fund pays the auditor of the fund’s accounts the amount of $577.50 currently owing by the fund to that auditor and to ensure that the outstanding rates owing by the fund in respect of its B Town property in the amount of $10,388.15 are paid, as soon as practicably possible.

5. That the parties forthwith take all steps necessary, including signing all documents that are necessary, to list the B Town property of their self-managed superannuation fund on the market for sale at a price agreed between the parties with such listing to be by way of an open listing.

6. That each of the parties is granted leave, to the extent that it may not have already been granted, to inspect and have photocopied any documents produced to this Court pursuant to subpoenas issued out of the Court to the date hereof.

7. That all other interim applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stocks & Allen 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 BRISBANE

FILE NUMBER: BRC 8509 of 2011

Ms Stocks

Applicant

And

Mr Allen

Respondent

REASONS FOR JUDGMENT

1. In substantive proceedings for property adjustment orders as between these parties, the wife makes an interlocutory application for a number of orders. The orders she seeks are relatively long and detailed, however, in essence, are best described as injunctions restraining the husband from accessing capital, including his superannuation, even by way of receipt of superannuation in the form of a pension, pending the hearing and determination of the substantive proceedings. The wife also seeks orders for further disclosure from the husband.

2. In response, the husband seeks orders:

   i)authorising him to sign documents in the place of the wife where she fails to sign them within seven days of a written request to do so;

   ii)that a real property on B Town that is an asset of their self-managed superannuation fund be listed for sale;

   iii)that he be authorised to solely manage the sale of that property;

   iv)that the parties be granted leave to inspect subpoenaed documents;

   v)that the wife not cause any further subpoenas to issue without the leave of the Court;

   vi)that the wife do everything necessary to cause their self-managed superannuation fund to become compliant including arranging audits of the fund for the 2013, 2014, 2015 and 2016 financial years.

Some background

1. The parties were married for a long time before they separated several years ago. They have a couple of adult children from whom the wife is, regrettably, estranged.

2. The husband commenced proceedings for property adjustment orders in 2011. For reasons not entirely clear to me, the proceedings have not yet been listed for trial, but are said by each party to be ready for trial.

3. The parties have interests in property and superannuation worth at least a few million dollars. That includes a number of real properties in south-east Queensland. They also have liabilities to banks agreed to be in excess of $1,700,000 secured by mortgages over their real property. Significantly, the wife, who is not legally represented in the proceedings, asserts that she should not be held jointly liable for the bank debts. She asserts she was not aware of the loans being taken out and, it seems she argues that her signature was forged on some of the applications for those loans. Of course, those are matters for determination at trial.

4. The husband continues to live in the former family home which he wishes to retain, the wife having moved out at separation. He is 61 years of age and is employed in the Queensland Public Service but is currently on sick leave, having been diagnosed with “an aggressive and usually fatal cancer” for which he has been receiving treatment since earlier this year.

5. The husband has not worked since May this year and receives income protection insurance payments from QSuper at around 75 per cent of his normal salary. He deposes to having no expectation to be able to return to work at all now and is expecting to formally retire from work before the end of this year, where after he will no longer be paid his income insurance payments. He exhibits letters and reports from his treating GP and specialist confirming that he is suffering from cancer and that it is malignant and requiring significant treatment through surgery, radiation therapy and chemotherapy.

6. The husband also informed the Court that he expects not to live too much longer into the future and he asked the Court to expedite the hearing of the final trial for this reason.

7. The wife’s health is also not good. She exhibits a document to her affidavit evidencing her doctor’s diagnosis of major depression. 

8. The husband deposes to the fact that the monthly repayments on loans he asserts both parties are liable for amount to $11,000. He asserts that the average rental income received on one of the properties is $1,250. That is paid towards the loan repayments each month. The husband also asserts that the costs of utilities and the costs of maintaining the two jointly owned properties total about $3,492 per month. Accordingly, he says the net outgoings in respect of these loans and the upkeep of the properties is $13,242 per month.

9. The husband further asserts that at separation he was receiving an income of $10,458 made up of his salary, a pension stream from Comsuper and a disability pension stream from the Department of Veterans’ Affairs. He said he had additional costs of living and for the support of the two children of $628 per month, taking total outgoings to $13,870 per month, leaving him with a shortfall of outgoings over income of $3,412.

10. He said that he had been meeting this shortfall since separation by selling off his inheritance, held in shares, of about $120,000. He said that in 2013/2014 he approached QSuper and established a Transition to Retirement account within his QSuper Superannuation account. His total QSuper superannuation interest was about $490,000 and, pursuant to superannuation regulatory provisions, he was entitled to be paid up to 10 per cent of that total amount in a year, in addition to his salary, as a transition to retirement payment. Accordingly, he was paid about $49,000 in the 2013/2014 year and he met the shortfall in the expenditure requirements that I have already detailed. In the 2014/2015 financial year, he said he received a further $52,000 pursuant to the transition to retirement provisions, which he used to meet the parties’ liabilities and his outgoings.

11. The husband contends that as he has continued to be employed and the State Government has continued to contribute to his superannuation, his QSuper account has been able to be maintained at about $500,000 in value notwithstanding the transition to retirement payments he has received. Again, this financial year, he is receiving a transition to retirement payment from his QSuper account equal to 10 per cent of the total of his account balance.

12. The husband says he will lose his sickness insurance payments once he retires and he will, as a consequence, have to draw on more of his superannuation entitlements outside of the transition to retirement provisions.

13. Orders were made last year for the sale of the parties’ investment property on the Sunshine Coast but it has not yet sold despite being on the market for some time. The husband expects, of course, once it sells, much of the debt will be discharged. He said that the asking price has been jointly reduced several times to try to achieve a sale but says that it should be reduced again. The wife does not want that to happen and she will not now agree to any further reduction in asking price. The husband says that will become a problem if he is forced to formally retire soon and is no longer able to receive his sickness insurance payments. However, he will then have access to his superannuation in any event.

14. The husband complains that the wife is not making any contribution herself to the monthly outgoings. Of course, she says she should not, in any event, be responsible for the loan repayments, but she also says she is in receipt of no other income other than a Centrelink benefit. However, she does not dispute that she also has a superannuation interest worth several hundred thousand dollars and that she is now of an age where she could lawfully access her superannuation. She asserted at the hearing that she was not aware that she now had that right.

15. The parties also have a self-managed superannuation fund called the C Superannuation Fund. Preparation of that fund’s annual financial statements has not happened for several years. Accordingly, it has not been independently audited as required by superannuation regulatory provisions. This could result in ATO determinations of non-compliance and financial penalties being imposed.

16. The husband says that despite orders having been previously made requiring the wife to sign documents to permit the superannuation fund’s financial statements to be prepared and the audits to be completed, the wife continues to refuse. For the wife’s part, she argues that there is a serious factual dispute about a large amount of cash held in a particular bank account as to whether it is an asset of the self-managed superannuation fund or not and that as a result she cannot conscientiously and honestly sign off on any documents of the self-managed superannuation fund.

17. The husband also asserts that the wife refuses to co-operate to make payments that must be made in respect of the self-managed superannuation fund which is causing ongoing problems. He says the auditor is currently owed $577.50 for work done which the husband says the wife refuses to pay and that there are rates of $10,388.15 outstanding in respect of the self-managed superannuation fund’s B Town real property that he says the wife is also refusing to pay. However, at the hearing before me the wife told the Court that she agreed to those being paid and would agree to an order being made to that effect.

18. The husband also told the Court that the B Town property should be sold and that he sought an order that it be placed on the market with an open listing. The wife told the Court at the hearing that she also agreed to such an order being made.

19. In his affidavit filed in the interim application, the husband also said that he wanted orders from the Court that the wife contribute 50 per cent towards the outlays that he was currently meeting until such time as the Sunshine Coast property is sold, as well as an order that the wife sign the contract for the sale of that property when it is achieved.

20. However, in the draft of the order that was handed to the Court by the husband’s solicitor there is no provision for the wife to meet 50 per cent of the outlays and no oral submission pressing for such an order was made by that solicitor. I consider therefore, that no such order was ultimately sought. In any event, I am not satisfied, in circumstances where the wife’s evidence is that she is in receipt of Centrelink benefits as her only income, that she could meet such an order if made at this interim stage.

21. In her case, the wife asserts that the husband has been receiving an additional $17,424 per month from his QSuper accounts and she argues that he should be restrained from accessing any more of his QSuper superannuation as he will reduce the amount of property and superannuation that will be available to make subject to property adjustment orders in the substantive proceedings. She exhibits to her affidavit of evidence filed 21 August 2015, certain documents, including bank statements of the husband and QSuper documents which she asserts support her case.

22. With respect to the wife, having read through the documents she exhibits to her affidavit, I am not persuaded that she is correct in her assertions as to what the husband has been accessing from his QSuper member entitlements and I have no reason to disbelieve his sworn evidence about that, the detail of which I have referred to above.

23. Accordingly, I will not make the orders sought by the wife in her Application in a Case filed 21 August 2015. The wife has simply not demonstrated to my satisfaction that such restrictive injunctions against the husband are necessary.

24. As I indicated to the parties at the hearing before me on 21 September 2015, I am satisfied, given the state of health of both parties and their current financial circumstances that expediting the final hearing of the competing substantive applications for property adjustment orders is appropriate and I expect that I will list the matter for hearing before me in late February, 2016. In the meantime, I will list the matter for a mention before me in the very near future so that further assessment may be given to the matter’s readiness for trial and as to any further directions that might be required in the matter in the lead up to a late-February trial.

25. I will also make the orders that I was informed could be made by consent. I will not make orders sought by the husband that he be authorised pursuant to s 106A of the Family Law Act 1975 (Cth) to sign documents relating to the parties’ self-managed superannuation fund on behalf of the wife should she refuse, simply because of the clearly critical factual dispute between the parties about that superannuation fund that is one of the matters that will have to be determined at trial.

26. I make orders as set out at the commencement of these written reasons.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 October 2015.

Associate:

Date:  8 October 2015