TAMBLYN & TAMBLYN - [2012] FMCAfam 1496

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TAMBLYN & TAMBLYN

[2012] FMCAfam 1496

FAMILY LAW – Extempore judgment – self represented husband leaving court and ceasing participation in the hearing after informing court he consented to wife’s application – whether court should make consent orders in these circumstances.

Applicant:

MS TAMBLYN

Respondent:

MR TAMBLYN

File Number:

MLC 4033 of 2012

Judgment of:

Burchardt FM

Hearing date:

23 November 2012

Date of Last Submission:

23 November 2012

Delivered at:

Melbourne

Delivered on:

23 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr Cantwell

Solicitors for the Applicant:

Westminster Lawyers Pty Ltd

The Respondent:

In person

ORDERS

That pursuant to paragraph 90MT(i)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the superannuation interest of MR TAMBLYN (Member Number: [1]) in the [E] Superannuation Scheme:
(a)That the Wife Ms Tamblyn shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $58,504.60 (provided that such base amount shall not exceed the value of the interest determined under section 90MT(2) of the said Act; and
(b)There shall be a corresponding reduction in the superannuation interest of the said member (Member Number [1]) to whom the splittable payment would have been made but for this Order.
That paragraph 1 hereof has effect from the operative time and the operative time is four days after service of the final sealed Orders on the [E] Superannuation Board.
That the Trustee of the [E] Superannuation Scheme shall do all such acts and things and sign all documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, the Trustee can calculate the entitlement of, and make payment to, the Wife in accordance with paragraph 1 of these Orders.
That pursuant to Rule 14F of the Family Law (Superannuation) Regulations 2001, any payments from the Husband’s superannuation interest made after the Trustee has created a new interest in the wife’s name in the [E] Superannuation Scheme are not splittable payments.
That until the happening of:
(a)The establishment of a separate account in the name of the Wife;
(b)The transfer or rolling over into another superannuation fund of the Wife’s entitlements created by paragraph 1 hereof;
(c)The Wife satisfies a condition of release and is paid the payment split which was created by paragraph 1 hereof;
(d)The Wife executing a Waiver of Rights within the meaning of Section 90MZA of the Family Law Act in relation to the payment split created by paragraph 1 hereof.
That the Husband shall be and is hereby restrained by his servants or agents from executing a binding Death Benefit Nomination or Nomination in favour of any person or doing any other act or thing which would render any part or all of his interest in the [E] Superannuation Scheme a “non splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001.
Until further order the Husband, his servants or agents shall be and are hereby restrained from converting part or all of his interest in the [E] Superannuation Scheme into any form of a periodic pension or dealing with the said interest in any way until the events referred to in paragraph 5 have occurred and in particular the splitting Order herein has been executed.
That the preparation of the Order herein be expedited and forthwith served upon the Husband and the Trustee of the [E] Superannuation Scheme.
That the solicitors acting for the Wife serve on the Trustee of the [E] Superannuation Scheme in relation to the implementation of the Orders herein.

That the wife retain all chattels in her possession save that the Wife forthwith return the motor vehicle to the Trustee or the Lessor.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 4033 of 2012

MS TAMBLYN

Applicant

And

MR TAMBLYN

Respondent

REASONS FOR JUDGMENT

I will give some ex tempore reasons for these orders.
This matter, today, has involved an unrepresented respondent. In accordance with standard practice, I explained to the respondent,

Mr Tamblyn, the structure of the proceedings, and his entitlement to take objections to evidence, notwithstanding that as a [occupation omitted] I assumed that he would be familiar enough with them anyway. In his opening, Mr Cantwell, for the applicant wife, relevantly pointed to the fact that what the Court was, in truth, concerned with was an argument as to the adjustment of superannuation interests.
That is because the parties were not financially successful during their relationship, in the sense that, notwithstanding the extensive period of marriage and the possession of a matrimonial home, the bottom line is that the parties are very significantly encumbered with debt. The matrimonial home is shortly to be sold, and the materials show conclusively enough that the net result will not produce any benefit to the parties. In any event, Mr Tamblyn, the respondent, is bankrupt on a debtor’s petition, and such resources as might have emerged from the sale, so far at least as he was concerned, would have gone to his trustee in bankruptcy.
The applicant has been seeking that there be a 50 per cent split of the husband’s superannuation interests in her favour, the husband’s superannuation being worth, in total, approximately $116,000, and the wife’s, $48,000. The husband’s superannuation is capable of being commuted to a permanent benefit for life in the form of $1447 per fortnight, indexed from time to time at (as counsel informed me without dispute) his election.
The applicant wife was called and gave some evidence in an uncontroversial and straight-forward way. When the time came for cross-examination, unfortunately, the proceedings rather rapidly went awry. Counsel for the mother had confirmed that this was not a Kennon case, and if I may say so in his presence, I think that was a proper concession. While aspects of the husband’s behaviour are very unattractive, I think they would struggle to cross the threshold involved in a Kennon type of application.
As I observed to counsel, that meant that many of the more emotive and difficult aspects of the evidence really rather fell away and became of marginal, if any, relevance to the property dispute presently before the court. I had to uphold a number of objections to questions put by Mr Tamblyn. By way of illustration, the wife had indicated that their daughter [name omitted] has been diagnosed diabetic. She confirmed that this diagnosis was made in January 2012, and that she had not told the husband, at the request of the child who, of course is now an adult.
The father wished to take the matter further, but as I pointed out to him, while obviously a matter of concern to him, it is irrelevant to the property issues before the Court. A further issue arose over some prior employment on the part of the wife, with the husband seeking to cross-examine as to whether or not he had told her to resign. It is immediately obvious, once again, that while in theory this is capable of constituting a credit issue, it is irrelevant to the property matter.
It is, furthermore, of no utility because, of course, although

Mr Tamblyn would not have understood this, the wife’s answers as to purely credit issues are final and binding in any event. Matters came to a head when the husband sought to cross-examine the wife about an assertion in her affidavit wherein she acknowledged that the husband’s health was generally unremarkable, but she acknowledged that he had suffered from depression. The materials annexed to the various affidavits would leave the proposition that the husband had suffered from depression unassailable. He has clearly had very significant health difficulties on his own case.
The cross-examination on this point started with a slightly laborious questioning as to whether the applicant wife was [omitted] qualified, or was a [occupation omitted], which she freely admitted she was not. When the question as to the assertion in the affidavit was pressed, I pointed out to Mr Tamblyn that he could ask the wife on what footing she made the assertion in her affidavit. At this point, Mr Tamblyn appeared to become agitated and began, as I saw it, to contemplate leaving the Court.
I was endeavouring to explain to him the four step methodology in property cases, with a view to assisting him to understand what was relevant and not, when he shut his briefcase and I asked him if he intended to leave, and he said that he did. I urged him not to, and took a short adjournment to enable him, hopefully, to calm down, especially since it seemed to me that his mother, who was in court, was endeavouring to assist him and restrain him, in any event.
When I came back onto the Court subsequently, Mr Tamblyn essentially complained that he was being prevented from, as he put it, going through the wife’s affidavit with a fine tooth comb to show that it was all lies. And he simply refused to remain in Court a moment longer. I did not endeavour to stop him going, because he is of age and is entitled to leave if he wishes, but it should be noted that before he went, he confirmed that he agreed to the superannuation splitting order that the wife sought.
He also said at the same time that he wished to have returned to him those personal belongings that the wife had retained. The wife had previously given evidence that these matters were boxed up and in the matrimonial home. In response to the husband’s assertion that he could not attend the home because of an intervention order, I pointed out that I had the capacity to enable him to do so. But he responded, as I understood it, with words to the effect that he did not wish to proceed.
In any event, at that point, Mr Tamblyn departed. These events show all the difficulties involved in self-representation, particularly in circumstances where the person concerned may suffer some difficulty in self-control. And they present an almost impossible task for the Court. Counsel has prepared orders giving effect to the concession made by the husband, and I have decided to make the orders sought.
During the period of adjournment, while counsel drew up the minutes of orders, I did turn my mind as to whether or not I should make orders by consent, bearing in mind that Mr Tamblyn was plainly agitated and may, in the ultimate, think better of his course of conduct. The orders that I will make will remove from him his capacity to commute his pension, and on one view that is a significant loss. It is also arguable that the percentage being now divided might, in other circumstances, not be appropriate, although following exchanges orally with counsel, I accept that that would be a matter for argument, if the matter had arisen in that way.
Counsel for the applicant wife pointed out that I had, indeed, taken what might be thought to be proper steps to give Mr Tamblyn a fair opportunity to consider his position. Counsel also pointed to the fact that Mr Tamblyn had made his position perfectly clear, namely an accession to the orders that the wife sought. Having further considered the matter, I think I should bring this matter to an end. I have made the orders by consent, since Mr Tamblyn did indeed consent to them in substance when he was in the court, and accordingly there will be orders in the form of the minutes presented by counsel.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Burchardt FM.

Associate:

Date: 30 April 2013