FEDERAL CIRCUIT COURT OF AUSTRALIA
| THANNER & THANNER | [2020] FCCA 3161 |
| Catchwords: FAMILY LAW – Property – Applicant seeks undefended trial – Applicant seeks summery decision – lack of disclosure – Respondent opposes undefended trial – power to determine a matter undefended or summarily. |
| Legislation: Family Law Act 1975 (Cth), ss.45A, 75 Federal Circuit Court Rules 2001, rr.4.05, 13.07 |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Brown & Brown [2004] FamCA 1067 Jacobs & Vale [2008] FMCAfam 641 Kannis & Kannis (2002) 30 Fam LR 83 Lindon v Commonwealth of Australia (No 2) (1996) 70 ALJR 541 |
| Applicant: | MS THANNER |
| Respondent: | MR THANNER |
| File Number: | BRC 9150 of 2018 |
| Judgment of: | Judge Coates |
| Hearing date: | 10 August 2020 |
| Date of Last Submission: | 21 September 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 20 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Hanlon |
| Solicitors for the Applicant: | Collective Family Law Group |
| Respondent: | Self-represented |
ORDERS
That the Response filed 12 November 2018 by the Respondent, be summarily dismissed.
That the Applicant receive the sum of $20,000 held in the Collective Family Law Group Pty Ltd Trust Account pursuant to Order 29(d)(i) of the Orders dated 19 August 2019.
That each party otherwise retain those assets currently held in their respective name or possession.That the Applicant indemnify the Respondent in respect of any liabilities in her sole name.That the Respondent indemnify the Applicant in respect of any liabilities in his sole name, including but not limited to claims arising from the creditors of the bankrupt estate of the Respondent.That pursuant to s.90XT(1)(b) of the Family Law Act 1975 (Cth):
(a)The Applicant is entitled to be paid the specified percentage out of the Respondent’s interest in the B Superannuation Plan with account number ...53;
(b)The Respondent’s entitlement (or the entitlement of such other person to whom a payment may be made out of the Respondent’s interest) in the B Superannuation Plan, is correspondingly reduced by force of this Order; and
(c)The percentage specified for the purposes of this Order is 100%.
That B Investment Management Ltd as Trustee of the B Superannuation Plan (“the Trustee”) shall do all acts and things and sign all documentation as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the Applicant in the immediately preceding clause of this Order; and
(b)Pay the entitlement whenever the Trustee makes a splittable payment from the Respondent’s interest in the B Superannuation Plan.
That this Order has effect from the operative time and the operative time is four (4) business days from the date of service of a sealed copy of this Order upon the Trustee.
That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulation 1994 (“the SIS Regulations”), the Respondent shall do all such things and sign all documents as may be necessary, including but not limited to exercising…
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- AGLC
- THANNER & THANNER [2020] FCCA 3161
- Case
- [2020] FCCA 3161
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether it possessed the power to proceed with an undefended trial and whether a summary decision was appropriate in the circumstances. The court was required to consider the implications of the Respondent's opposition and the extent of disclosure provided by the parties in determining the appropriate procedural path.
Judge Coates reasoned that the court had the power to make orders in an undefended matter and that a summary decision was warranted due to the Respondent's failure to comply with disclosure obligations. The court applied principles relating to the court's inherent jurisdiction and its statutory powers under the *Family Law Act 1975* (Cth) to manage its proceedings and ensure fairness. The court found that the Respondent's conduct justified proceeding summarily and making orders that effectively resolved the property settlement.
The court ordered the summary dismissal of the Respondent's Response, awarded the Applicant $20,000 from a specified trust account, and stipulated that each party would otherwise retain assets in their respective names. Crucially, the court ordered a 100% split of the Respondent's interest in the B Superannuation Plan to the Applicant and detailed the mechanisms for its transfer. The parties were ordered to indemnify each other in respect of liabilities in their sole names, with specific creditors of the Respondent's bankrupt estate listed for the Respondent's indemnity. All outstanding applications were dismissed.
Orders
Orders of the court
1.
That the Response filed 12 November 2018 by the Respondent, be summarily dismissed.
2.
That the Applicant receive the sum of $20,000 held in the Collective Family Law Group Pty Ltd Trust Account pursuant to Order 29(d)(i) of the Orders dated 19 August 2019.
3.
That each party otherwise retain those assets currently held in their respective name or possession.
4.
That the Applicant indemnify the Respondent in respect of any liabilities in her sole name.
5.
That the Respondent indemnify the Applicant in respect of any liabilities in his sole name, including but not limited to claims arising from the creditors of the bankrupt estate of the Respondent.
6.
That pursuant to s.90XT(1)(b) of the Family Law Act 1975 (Cth):
(a) The Applicant is entitled to be paid the specified percentage out of the Respondent’s interest in the B Superannuation Plan with account number ...53;
(b) The Respondent’s entitlement (or the entitlement of such other person to whom a payment may be made out of the Respondent’s interest) in the B Superannuation Plan, is correspondingly reduced by force of this Order; and
(c) The percentage specified for the purposes of this Order is 100%.
7.
That B Investment Management Ltd as Trustee of the B Superannuation Plan (“the Trustee”) shall do all acts and things and sign all documentation as may be necessary to:
(a) Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the Applicant in the immediately preceding clause of this Order; and
(b) Pay the entitlement whenever the Trustee makes a splittable payment from the Respondent’s interest in the B Superannuation Plan.
8.
That this Order has effect from the operative time and the operative time is four (4) business days from the date of service of a sealed copy of this Order upon the Trustee.
9.
That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulation 1994 (“the SIS Regulations”), the Respondent shall do all such things and sign all documents as may be necessary, including but not limited to exercising the Applicant’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the Applicant’s choosing in accordance with the SIS Regulation.
10.
That the Court notes:
(a) The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b) Any payments from the Respondent’s superannuation interest in the B Superannuation Plan made after the Trustee has created a new interest in the Applicant’s name in the B Superannuation Plan are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
11.
That unless otherwise stated in these Orders, the Applicant shall retain the following assets free from any claim of the Respondent:
(a) The Motor Vehicle 1;
(b) Her bank accounts;
(c) Her C business;
(d) Her household contents, personal effects and possessions; and
(e) Any other asset in her name, possession or control as at the date of this Order.
12.
That unless otherwise stated in these Orders, the Respondent shall retain the following assets free from any claim of the Applicant:
(a) The Motor Vehicle 2;
(b) The real property situated at D Street, Suburb E, Northern Territory;
(c) The real property situated at F Street, Suburb G, Queensland;
(d) His bank accounts;
(e) His household contents, personal effects and possessions; and
(f) Any other asset in his name, possession or control as at the date of this Order.
13.
That from the date of this Order the Applicant shall be solely responsible for and shall indemnify and keep indemnified the Respondent in respect of any liabilities in her sole name, including but not limited to tax liabilities, claims or demands.
14.
That from the date of this Order the Respondent shall be solely responsible for and shall indemnify and keep indemnified the Applicant in respect of any liabilities in his sole name, including but not limited to tax liabilities, claims or demands, and including but not limited to claims arising from the following creditors of the bankrupt estate of the Respondent:
(a) H Bank;
(b) J Law Firm;
(c) K Company;
(d) L Company;
(e) Region M Council;
(f) N Company;
(g) O Financial Services;
(h) National Australia Bank;
(i) P Group;
(j) Q Company; and
(k) R Company.
15.
That:
(a) Each party shall do all acts and things, sign all documents and give all consents, including the signing or execution of documents, as are necessary to give effect to the terms of these Orders within 14 days of being requested to do so;
(b) If either party refuses or neglects to sign or execute and return a document within fourteen (14) days of a written request to do so then the Registrar of the Brisbane Registry of the Federal Circuit Court of Australia is hereby appointed under s.106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of the defaulting party upon lodgement of such document and the filing of an Affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal; and
(c) The requesting party be at liberty to apply for costs when submitting such documents and Affidavit to the Registrar.
16.
That:
(a) Orders 6 and 6A of the Orders made 10 December 2018;
(b) Orders 10 to 12 inclusive and 40 to 43 inclusive of the Orders made 19 August 2019; and
(c) Orders 11 to 25 inclusive of the Orders made 9 December 2019,
be discharged.
17.
That all outstanding Applications of the Applicant and of the Respondent be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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