Andonov & Perko
[2024] FedCFamC1F 456
•8 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Andonov & Perko [2024] FedCFamC1F 456
File number: MLC 14328 of 2022 Judgment of: CARTER J Date of judgment: 8 July 2024 Catchwords: FAMILY LAW – PROCEDURAL – Where the matter proceeded on an undefended basis – Where the husband has declined to participate in these proceedings – Leave granted.
FAMILY LAW – PARENTING – Where the husband abducted the child overseas to an unknown location – Where the wife had primary care for the child prior to abduction – Orders made for the child to be returned to Australia – Orders made for the wife to have sole decision-making responsibilities in relation to the child.
FAMILY LAW – PROPERTY – Where the property pool is modest – Where the husband has wholly failed in his duty of disclosure – Where the husband has removed cash assets from Australia – Where the husband is in arrears of spousal maintenance.Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 69E, 75, 79, 95
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited: Aleksovski v Aleksovski (1996) 135 FLR 131
Bevan v Bevan (2013) 279 FLR 1
Kannis & Kannis (2002) 172 FLR 464
Stanford v Stanford (2012) 247 CLR 108
Weir & Weir (1992) FLC 92-338
Division: Division 1 First Instance Number of paragraphs: 112 Date of last submission: 6 June 2024 Date of hearing: 3 June 2024 Place: Melbourne Counsel for the Applicant: Mr Kaufman Solicitor for the Applicant: Merhi Lawyers The Respondent: Litigant in person (did not participate) ORDERS
MLC 14328 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ANDONOV
Applicant
AND: MR PERKO
Respondent
ORDER MADE BY:
CARTER J
DATE OF ORDER:
8 JULY 2024
THE COURT ORDERS THAT:
1.Leave is granted for this matter to proceed on an undefended basis.
2.The wife serve a copy of these orders and reasons for judgment on the husband and trustees of the husband’s self-managed superannuation fund by email as soon as practicable.
PARENTING
Decision-making responsibility
3.The wife have sole decision making responsibility in relation to long term decisions for the child X born 2019.
Return of child
4.The husband do all such acts and things to cause the child to be forthwith returned to the Commonwealth of Australia.
Live with
5.The child live with the mother.
Spend time
6.The father’s time with the child be as agreed between the parties.
Airport Watchlist
7.Orders 3-5 inclusive of the orders made 4 March 2024 be discharged.
8.Each of MS ANDONOV BORN 1988 AND MR PERKO BORN 1982 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X BORN 2019 from the Commonwealth of Australia.
9.IT IS REQUESTED THAT the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until 26 September 2037.
10.Upon expiration of the period referred to in Order 9 hereof, and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.
11.The wife be permitted to provide a copy of these orders to any Australian or foreign court or tribunal dealing with any application in relation to the child.
PROPERTY
12.Not before 14 days following service as set out in Order 2 herein:
(a)the parties do all such acts and things and sign all such documents as necessary so that the wife receives the whole of the monies held on trust by B Pty Ltd; and
(b)the parties do all such acts and things and sign all such documents as necessary such that the wife receives the whole of any monies remaining in the husband’s bank accounts with the National Australia Bank and C Bank.
13.For the purposes of Order 12(a) B Pty Ltd is requested to release to the wife the whole of the funds held in their account number …24.
14.For the purposes of Order 12(b):
(a)the National Australia Bank is requested to release to the wife the amount of $9,017.38 in account number …46 in the name of MR PERKO; and
(b)the National Australia Bank is requested to release to the wife the amount of $7,250.19 in account number …23 in the name of MR PERKO.
Superannuation
15.Orders 15 to 20 inclusive of these orders are binding on the Trustees of the husband’s superannuation fund, being Superannuation Fund 1 (“the fund”) and the husband and Mr Gebara (“the trustees”), with the trustees having been afforded procedural fairness in respect of the Superannuation Orders herein.
16.The trustees of the fund do all such acts and things and sign all documents as may be required to:
(a)ensure the fund is compliant with the requirements of the Australian Taxation Office and the Australian Securities and Investments Commission; and
(b)to recover all monies loaned by the fund to third parties together with interest payable thereon, and thereafter the husband, his servants and agents, and the trustees be restrained from transferring any monies out of the fund save as agreed in writing between the parties or order of this Court.
17.The wife receive 100 per cent of the husband’s entitlements in the fund.
18.Pursuant to section 90XT(1)(c) of the Family Law Act 1975 (Cth), whenever a splitable payment becomes payable in respect of the interest of the Husband in the Fund, the Wife shall be entitled to be paid 100 per cent of the splitable payment, calculated in accordance with the regulations and there be a corresponding reduction in the entitlement of the Husband.
19.Order 18 has effect from the operative date, being the fourth business day after service of a copy of these orders on the Trustee.
20.Pending compliance with Order 18 and save for the purpose of giving effect to these superannuation orders the husband in his personal capacity and the trustees be restrained from:
(a)transferring any monies out of the fund or otherwise dispose of any assets of the fund;
(b)appointing a new Trustee;
(c)admitting a person as a member of the fund;
(d)making any application to the Trustee for the transfer or payment of member benefits, whether in whole or in part, other than in accordance with these superannuation orders; or
(e)doing any act or thing which will defeat, extinguish or reduce the entitlement of either of the parties in the Fund and/or pursuant to these superannuation orders.
21.The wife forthwith serve a copy of these orders on the trustees by email.
Section 106A
22.In the event the husband refuses or neglects to comply with any provision of these orders:
(a)a Registrar of the Federal Circuit and Family Court of Australia is hereby appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these orders; and
(b)for the purpose of this order, an affidavit setting out the husband’s failure to comply with the orders shall be sufficient evidence of neglect and default.
Miscellaneous
23.The wife have liberty to provide my reasons for judgment to the Australian Taxation Office and/or the Australian Prudential Regulation Authority and/or such other appropriate regulatory body only in relation to the husband’s establishment of a self‑managed superannuation fund and subsequent removal of the monies from that fund.
24.Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)each party forego any further claims they may have to any superannuation benefits belonging to or earned by the other;
(c)insurance policies remain the sole property of the owner named therein;
(d)cash in any joint accounts be divided equally between the parties;
(e)any monies or liabilities held in any bank or credit accounts remain the sole property of owner in whose name the accounts are held;
(f)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(g)each party remain responsible for any debts in that party’s name; and
(h)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
25.All extant applications are otherwise dismissed and the matter is removed from the list of active cases.
AND THE COURT NOTES THAT:
A.Upon expiration of the period referred to in Order 9 hereof, and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.
B.Pursuant to rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court may vary or set aside a judgment or order made in the absence of a party.
C.Pursuant to s 81 of the Family Law Act 1975 (Cth), the parties intend that these orders shall, as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.
D.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
APPLICATION TO PROCEED ON AN UNDEFENDED BASIS
The husband did not attend at the final hearing listed on 3 June 2024. The wife sought leave to proceed undefended.
The husband initially participated in these proceedings. However, he has filed no documents or attended Court since a lawyer appeared on his behalf at the first return date on 6 February 2023.
I am of the view that it is appropriate to grant that leave for the following reasons.
First, I am satisfied that the husband knew the matter was listed for final hearing on 3 June 2024. The only means by which the husband can be reached is email – and he was provided a copy of the Microsoft Teams link for the hearing on 3 June 2024 by my chambers. He did not respond to that invitation. The husband was served by email a copy of the wife’s Amended Initiating Application filed on 27 May 2024 which stipulated 3 June 2024 as the next return date.
Secondly, I am satisfied the husband is aware of the orders sought on a final basis. As set out, the husband was served with the wife’s Amended Initiating Application. I was advised that neither the wife nor her solicitors have received any communication from the husband regarding that document. He was also served with a copy of the wife’s affidavit filed on 24 May 2024. Again, there has been no response by the husband.
The husband in his capacity as trustee of the self-managed superannuation fund, together with the co-trustee of the fund were served with the proposed superannuation splitting orders on 6 June 2024. This occurred following a further mention as it became apparent to me that the trustees had not been afforded procedural fairness. They have now been afforded 28 days to consider the specific orders sought, and neither trustee has provided any objection to the orders as sought.
Thirdly, I am satisfied the husband was on notice that the wife would seek to proceed on an undefended basis. That is the first order sought in her Amended Initiating Application. However, the husband did not attend Court on 3 June 2024, nor did he arrange representation to appear on his behalf. He has not communicated with the Court or with the wife’s solicitors to express any opposition to the matter proceeding and being determined in his absence. Additionally, a number of Court orders have included notations – and orders – to the effect that in the event the husband does not attend Court, the wife will seek to proceed on an undefended basis.
Lastly, I note the provisions of s 95 of the Family Law Act 1975 (Cth) which mandates the just resolution of disputes as quickly, inexpensively, and efficiently as possible. That includes ensuring the disposal of proceedings in a timely manner, and an efficient use of judicial resources. There have been a great many interim hearings in this matter, and the proceedings have been on foot for about 18 months. There is, in my view, no utility in giving the husband further opportunities to become involved in these proceedings, which continue to the financial and emotional detriment of the wife. Moreover, the husband has the right under rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to vary or set aside orders made in his absence, should he wish to do so.
Leave is therefore granted to the wife to proceed on an undefended basis.
BRIEF BACKGROUND
The wife is 36 years old. She was born in Country D. She lives in Australia. She is currently not employed.
The husband is 42 years old. He was born in Country D. He is not in Australia, and his actual whereabouts are unknown.
The parties commenced their relationship in late 2012 and were married in 2013. The wife became a permanent resident here in 2014, and the husband became an Australian citizen in 2016.
There is one child of the marriage – X, born 2019. She is now four years old. The mother was her primary carer throughout the marriage.
The wife says the husband subjected her to physical and verbal violence, and coercive control throughout their relationship.
The parties lived in Queensland together until June 2022. At that time the husband moved to Melbourne and took X with him. The wife remained in Brisbane, as she was enrolled in a course. It is her evidence that the husband refused to allow her to keep X in Brisbane with her, and instead insisted that the child remain with him in Melbourne.
The wife then moved to Melbourne in August 2022. The parties and child then lived in Suburb E.
The parties separated on a final basis on 3 October 2022 with the wife receiving support and assistance through Q Organisation to manage that separation safely. She and the child then remained at an address unknown to the husband.
Without notice to the wife, the father attended at X’s childcare in late 2022 and removed her. It is the wife’s evidence that the husband hacked into her email and was able to log into the childcare website and added himself as an emergency contact. After removing the child from her day care, he then unilaterally took her out of Australia, travelling with her to Country F. This must have been extremely distressing and confusing for the child.
The husband has not facilitated any face-to-face time between the wife and child since he abducted the child from Australia. Nor has he ever returned to Australia or participated in these proceedings in any meaningful way.
On 6 February 2023 orders were made inter alia placing the child on an Airport Watch List, and providing that the husband return the child to the wife, and that she have what was then called sole parental responsibility for the child.
An order was also made for the sale of the property at G Street, Brisbane (“the former matrimonial home”), which was registered in the husband’s sole name. The orders included an order that the wife be paid $50,000 (presumably by way of part property settlement) and for the husband to pay the wife $1,500 per week by way of urgent spousal maintenance. The balance of the proceeds of sale were to be held in the trust account of the wife’s solicitors. However, they appear to have been retained by the conveyancer, and are not in an interest‑bearing account.
At the hearing on 6 February 2023 the husband was represented. The orders contained a notation that the solicitor appearing on behalf of the husband was unable to obtain instructions from the husband as to his whereabouts, beyond being advised the husband was in a “non‑Hague country”.
On 20 June 2023 further interim orders were made restraining the husband from accessing various funds in bank accounts. Regrettably, by that time the husband had withdrawn substantial cash funds.
The orders of 20 June 2023 also restrained the husband from transferring or accessing or otherwise dealing with any funds in the husband’s self-managed superannuation fund –Superannuation Fund 1. Again, unfortunately, by that time substantial funds had been funnelled into the superannuation fund accounts and then withdrawn and ‘invested’ into offshore projects.
On 20 June 2023, the Senior Judicial Registrar made a declaration that the husband at that time owed the wife $30,000 by way of spousal maintenance payments – as he had made no attempt to pay the wife pursuant to the orders made in February 2023. The Senior Judicial Registrar then ordered the husband’s then employer to pay the wife $5,640 each calendar month – being the wife’s spousal maintenance entitlements pursuant to the February 2023 orders. Those payments were made to the wife in July, August, and September 2023, with the wife receiving a total of $16,920.
In about mid-2023 the former matrimonial home was sold for $546,000. From the proceeds of sale of about $136,908.93 the sum of $50,000 was paid to the wife pursuant to court order. The balance of $86,908.93 remains on trust.
The wife last communicated with the child on 25 September 2023. The husband ceased all communications thereafter.
Since September 2023 the wife has received no further spousal maintenance payments either from the husband or from his former employer. Accordingly, the husband currently owes the wife a further $45,120 by way of unpaid maintenance.
ISSUES TO BE DETERMINED
I must determine:
(a)what parenting orders are in the child’s best interests; and
(b)whether any orders adjusting property and superannuation should be made, and if so, what orders are appropriate.
PARENTING
This case was heard after the enactment of the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024. The legislative changes therefore apply to this case and the consideration of best interests factors below reflect the relevant legislation as at the date of final hearing.
Whilst the child is not present in Australia, this Court has jurisdiction to hear the parenting proceedings as the wife is a parent of the child and was present in Australia on the day the proceedings were filed; s 69E.
HOW ARE THE CHILDREN’S BEST INTERESTS ASSESSED?
Section 60CA of the Family Law Act sets out that when deciding whether to make a particular parenting order in relation to children, the best interests of the children must be my paramount consideration.
There is a non-hierarchical list of considerations set out in s 60CC(2) and (2A) that I must take into account in determining what is in the child’s best interests.
Section 60CC(2) provides that I must take into account:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
Subsection 60CC(2A) requires that I also consider:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
Section 4AB of the Act provides a wide definition of family violence, which includes “sexual assault or other sexually abusive behaviour”.
Promoting safety
The wife deposed to having been subjected to ongoing violence, abuse, denigration, and control at the hands of the husband. The removal of the child from the wife’s care, without notice to the wife, and thereafter unilaterally removing the child from Australia is another act that should be considered an act of abuse and coercive control perpetrated by the husband on both the wife and the child. The husband’s refusal to disclose the whereabouts of the child is an act of ongoing violence.
In the absence of any evidence from the husband – and in light of the wife’s evidence as to the husband’s behaviours towards her – I cannot be satisfied that the child is safe in the father’s care.
Views expressed by the child
There is no evidence as to the child’s views.
Developmental, psychological, emotional, and cultural needs
There is little evidence as to the child’s needs. It would ordinarily be the case that a child should have the benefit of both parents involved in their lives. The husband’s actions have deprived the child of the ability to have any relationship with her mother.
It is anticipated the removal of the child from her primary care would have been highly distressing and confusing for the child and could have long term consequences on the child’s sense of identity, sense of security and safety, as well as on her personal development.
Capacity of each person who has or is proposed to have parental responsibility for the child to provide for their developmental, psychological, emotional and cultural needs
The wife appears well placed to provide for the child’s physical and emotional needs.
I have real concerns about the husband’s ability to provide appropriate care. His action in removing the child from Australia and thereafter preventing a relationship between the child and her mother suggests he has limited insight into the emotional and psychological needs of the child. I otherwise have no evidence as to the husband’s ability to provide appropriate care for the child. I do not know whether the child is living with him or being cared for by him. I do not know what arrangements he has in place for the care of the child when he is working, or any details of the home environment.
The benefit to the child of being able to have a relationship with their parents, and other people who are significant to the child
I am satisfied the child would benefit significantly if she was able to have a relationship with her mother. The father has deliberately deprived the child of that relationship.
The history or family violence, abuse or neglect, and any family violence order that applies or has applied
I have already set out that it is the wife’s evidence that she was subjected to family violence by the husband. I am unclear as to whether there ever was an Intervention Order in place.
PARENTING ORDERS TO BE MADE
Decision making
It is the wife’s evidence that she provided primary care for the parties’ daughter throughout the relationship, save for the periods when the husband has unilaterally retained the child in his care. She deposed to having been subjected to violence, abuse, and coercive control such that it would be unreasonable to require the parties to negotiate together and reach joint decisions.
The husband’s decision to remove the child from Australia, and thereafter to prevent a meaningful relationship between the mother and child suggests his ability to make appropriate and child focussed decisions for the child’s long-term wellbeing is seriously compromised.
In the circumstances, I am satisfied the wife should have sole responsibility for making decisions about the child’s long-term care, welfare, and development.
Live with
I am also satisfied the child should be returned to Australia and returned to the wife’s primary care. The wife was the primary carer for the child. As already observed, the husband’s decision to remove the child from her primary carer and from her country of habitual residence, casts considerable doubt on his ability to make child focussed decisions.
The husband has never responded to the wife’s allegations of family violence. The wife’s unchallenged evidence in this regard raise concerns for the child’s safety in the father’s care.
Time with
In the unlikely event the husband does return to Australia, the parties will need to negotiate the time the child spends in his care. If they are unable to reach an agreement, one or other parent will need to institute proceedings to address that issue.
Airport Watchlist
There is already an airport watchlist in place that will expire XXXXX . I will make an order that will remain in place until the child is 18 years old, rather than expiring in two or three years’ time. It is not known when – or indeed if ever – the husband will return the child to Australia.
The wife proposed a subsequent order that the watchlist order not prevent the child from leaving Australia if that was by consent in writing and authenticated in accordance with reg 13 of the Family Law Regulations 1984 (Cth). Counsel for the wife said that order was sought so that if the child was returned to Australia, and if the parties agreed, she could still travel abroad.
I am not prepared to make that order at this stage. If the child is returned to Australia and if the parties subsequently agree to one or other parent travelling with her outside Australia, they will need to come to Court at any rate to have the watchlist order varied to allow that travel to occur.
Provision of orders
The wife sought a further order that she be able to provide a copy of these orders to any court of any country in which the child might be present so that she can agitate for the child’s return to Australia. I am satisfied that is an appropriate order to make; the wife was the child’s primary carer; the husband abducted the child from Australia and has refused to disclose the child’s whereabouts; and the husband has also failed to engage in these proceedings or facilitate any type of relationship between the mother and child. The provision of the orders of this Court to other courts being asked to exercise jurisdiction in relation to the child may provide some assistance to the wife to secure the child’s return to her mother’s care, and to Australia.
PROPERTY
Non-disclosure
Pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), both parties are required to make full and frank disclosure of their financial circumstances.
It is plain the husband in this matter has utterly failed to meet his duty of disclosure. He has not provided any documents to the wife whatsoever. Nor has he filed any documents in these proceedings.
A failure to disclose goes to the very heart of the Court’s obligation to decide what is just and equitable. In Weir & Weir (1992) FLC 92-338, the Full Court stated at 79,593 that:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
I note further the observations of the Kannis & Kannis (2002) 172 FLR 464, in which the Full Court opined that where the Court is satisfied the whole truth has not come out, the Court:
… might readily conclude that the asset pool is greater than demonstrated. In those circumstances it might be appropriate to err on the side of generosity to the party who might otherwise be seen to be disadvantaged by the lack of complete candour.
The husband’s financial circumstances remain entirely unclear. I am satisfied that he has withdrawn funds from accounts in Australia, which he appears to have used for his own benefit. He has also arranged for monies to be withdrawn from his self-managed superannuation fund. It would appear the husband has acted deliberately to remove assets from this jurisdiction and to make it difficult for the wife to claw back those funds.
I am satisfied this is a matter in which the husband has deliberately prevented the wife, and this Court, from being able to ascertain the asset pool. I am further satisfied that that deliberate non-disclosure should not benefit the husband and disadvantage the wife. Rather, I find it is appropriate to conclude that the asset pool is substantially greater than the monies remaining in Australia; that the husband may have superannuation entitlements he failed to disclose; and that the husband is likely to have access to funds and financial resources he has deliberately hidden from the wife, in an attempt to minimise her entitlements.
The pool
As observed, the husband’s failure to disclose means I am unable to properly identify the parties’ existing assets and liabilities.
The major assets that remain in Australia are the balance of the proceeds of the sale of the former matrimonial home – which was a property in the husband’s sole name – and the balance of the monies remaining in various bank accounts – also in the husband’s name.
The assets in Australia are as follows:
ASSETS
Balance of proceeds of sale of former matrimonial home
$86,908.93
Funds in the husband’s NAB account …23
$7,250.19
Funds in the husband’s NAB account …46
$9,017.38
NET TANGIBLE POOL
$103,176.50
The wife said she has $38,000 remaining in her accounts. That is the balance of the part property payment she received.
As already observed, orders were made on 6 February 2023 pursuant to which the husband was required to pay the wife spousal maintenance. Other than three payments made via the husband’s then employer, the husband has failed to meet his obligations pursuant to the interim orders. As at the date of hearing the husband was in arrears of spousal maintenance of $75,120 – with $30,000 having accumulated between February and June 2023 and the balance accumulating from September 2023 to the final hearing.
In circumstances where the husband was required to pay the wife $75,120 by way of spousal maintenance and failed to do so, I am not prepared to notionally addback the wife’s part property payment into the pool. Nor will I include the balance of funds remaining in her account. The wife has had to use funds to support herself and meet legal fees, in circumstances where the husband has failed to meet his obligations to provide for her in accordance with Court orders.
The wife also owes $50,000 to her solicitors.
Funds withdrawn by the husband
The wife identified a number of withdrawals by the husband from various bank accounts post separation as follows:
(a)there were multiple payments of monies into the husband’s J Bank account in November 2022 from an unknown source. Between 14 to 22 November 2022 the sum of $331,000 was then withdrawn by the husband from his J Bank account, described as a payment to a Mr P. The husband has provided no explanation for these transfers to Mr P;
(b)in January 2023, the husband appeared to rollover his superannuation entitlements with Superannuation Fund 2 into a self-managed superannuation fund. Those monies where then withdrawn from the superannuation account. The husband has provided no explanation for those withdrawals;
(c)in June 2023, the sum of $90,000 was transferred by the husband out of his accounts into the accounts of a Ms Debreva, in four separate tranches. Ms Debreva provided a written response to a subpoena to the effect that in accordance with instructions from the husband, those monies were subsequently transferred to the husband’s brother, Mr H. In so far as the husband may have asserted he owed funds to his brother, there is no evidence before me to that effect;
(d)in June 2023, the sum of $80,000 was transferred into an account in the name of the husband’s self-managed superannuation fund. The wife was able to identify that $60,000 came from the husband’s K Bank account. The source of the additional $20,000 was not able to be identified by her. Those monies have substantially been withdrawn from the superannuation fund bank account; and
(e)$10,000 was transferred to a Mr L out of the husband’s K Bank account. That transfer has similarly not been explained.
The husband has provided no explanations whatsoever as to the movement of funds out of his accounts post separation.
Superannuation
The husband is a co-trustee of Superannuation Fund 1 with a Mr Gebara. The husband is the sole member of the fund, which was established in January 2023. It seems most likely to me that the self-managed fund was deliberately established to enable the rollover of the husband’s industry superannuation entitlements so that the monies could then be accessed by him and removed from the jurisdiction.
The wife was able to identify from the subpoenaed material that the husband rolled over the sum $173,022.94 from Superannuation Fund 2 into the self-managed superannuation fund. The C Bank statements show those monies were deposited into the fund’s bank account on 3 February 2023. The monies were then promptly withdrawn.
A further $80,000 was deposited into the fund’s bank account between 1 and 14 June 2023 and again promptly withdrawn.
Only $6,102.89 remains in the fund’s bank account.
Mr Gebara gave evidence via Microsoft Teams on 4 March 2024. It was his evidence that the funds withdrawn from the self-managed superannuation fund bank account in February 2023 of $172,522.94 were invested with offshore third-party companies – M Company and N Company. He maintained this was a legitimate arms’ length investment in a project in Country D. He said the signed loan agreements provided that the funds were to be repaid with interest.
Mr Gebara also said the companies required further funds to continue the project which was why additional monies were paid in mid-2023.
Mr Gebara was somewhat hazy as to the terms of repayment, suggesting the monies were to be repaid between nine months to a year after being loaned. That time frame did not make much sense as the repayment of monies invested in February 2023 was already overdue as at the date Mr Gebara gave his evidence. Mr Gebara’s explanation for the delay in repayment was that there had been some “financial problems” with M Company, and the funds would be repaid upon completion of the project with interest at 18 per cent.
Mr Gebara’s evidence was far from compelling. It did little to satisfy me that the establishment of the self–managed superannuation fund was other than a deliberate sham concocted by the husband and Mr Gebara to secure the husband’s early access to the funds and their removal from Australia. Mr Gebara’s evidence also did not give me any confidence that the funds had been legitimately invested.
The husband has provided no evidence about the superannuation fund whatsoever.
The superannuation fund has no assets other than the cash funds that have been withdrawn – and allegedly invested – and the modest cash monies remaining in the C Bank Account.
The husband has not disclosed any evidence as to his superannuation entitlements in any other fund in Australia or elsewhere.
IS IT JUST AND EQUITABLE THAT AN ORDER BE MADE?
In Stanford v Stanford (2012) 247 CLR 108, the High Court of Australia said pursuant to section 79(2) of the Family Law Act, before making any order altering the interests of parties to a marriage in property, I must first be satisfied it is just and equitable to do so. If I am so satisfied, I then am empowered to make such orders as I consider to be appropriate, taking into account the relevant factors set out in ss 79(4) and 75(2) of the Family Law Act.
In my view, this is one of the “vast majority of cases” referred to by the plurality of the High Court in Bevan v Bevan (2013) 279 FLR 1 at [164] in which the requirements of s 79(2) of the Act are fairly readily satisfied. It is plainly just and equitable to make an order pursuant to s 79 of the Family Law Act in these proceedings for a division of property between the parties. If no order is made the wife will be left with no assets other than the part property distribution of $50,000 made to her, after a 10 year relationship that produced one child. Moreover, the husband has deliberately moved assets offshore and out of the reach of the wife. It could not be just and equitable to allow him to remove assets outside Australia as well as retain the balance of the assets that remain here.
SECTION 79(4) OF THE ACT
In determining what orders are to be made pursuant to s 79(4), I must weigh and assess the contributions made by each party of all kinds and from all sources throughout the relationship, and then translate that into a percentage of the overall property: Aleksovski v Aleksovski (1996) 135 FLR 131 at [139].
That assessment is difficult to undertake given the lack of clarity I have in relation to the pool as a result of the husband’s failure to make full and frank disclosure, and in the absence of any evidence from the husband regarding the considerations contained in ss 79(4) and 75(2). However, I must do the best I can to give a reasonable value to all of the elements that went into making up the entirety of the parties’ relationship.
This is not a mathematical or accounting exercise.
Initial contributions
It is unclear from the wife’s material when the husband purchased the property in Brisbane. If he did have the property prior to the parties’ marriage I do not know what the equity at the time the parties commenced living together.
The wife has not deposed as to her initial contributions.
Contributions during the marriage
It is the wife’s evidence that she undertook all the homemaker and parenting duties during the parties’ marriage.
As best as I can tell the husband was in paid employment during the relationship.
Contributions post-separation
The husband abducted the parties’ child from Australia. The wife would otherwise have continued to provide primary care to the child. The husband was ordered to provide spousal maintenance to the wife post separation but has failed to do so.
RELEVANT CONSIDERATIONS PURSUANT TO SECTION 75(2) OF THE ACT
The wife is not working in paid employment. She requires weekly counselling to assist her to manage the trauma she has experienced throughout the marriage and as a result of her daughter being abducted from Australia.
The wife said she has recently ceased receiving Job Seeker and is doing her best to find employment for herself.
The husband was previously a partner at a company in Suburb O. He was earning over $150,000 per annum.
Again, it is difficult to assess the husband’s earning capacity, access to resources, health, and the alike in the face of his non-participation in proceedings. I have no evidence that his income earning capacity has reduced, or that he is other than in good health.
SUPERANNUATION
As already set out, post-separation the husband deposited over $253,000 into a very recently established self-managed superannuation fund. The vast bulk of those funds have now been moved offshore. It seems likely the husband established the self-managed superannuation fund precisely so he could access the monies now and retain them for his own use and benefit (and prevent the wife from accessing them) rather than having to wait and access the funds in the usual course.
It is the wife’s application that the trustees be directed to recover the funds and that thereafter the wife have the benefit of a splitting order such that she receives 100 per cent of the husband’s entitlements in the self-managed superannuation fund.
Whilst there will likely be significant issues with enforcing the order that the funds be recovered, I am satisfied it is appropriate that order be made. The trustees should also be directed to ensure the self-managed superannuation fund is compliant.
ASSESSMENT OF CONTRIBUTIONS AND PROSPECTIVE NEEDS
I am satisfied the wife contributed to the marriage to the best of her abilities throughout the relationship. There is no evidence that the husband made any significant contributions beyond presumably providing some financial support prior to the relationship ending. Doing the best I can, the parties’ contributions appear to have been equal.
The wife clearly has significant needs. Her income earning capacity is inferior to that of the husband’s. She has no supports or financial resources. Whilst the husband currently has the care of the parties’ child, that child should not have been removed from the wife’s care or from Australia. I am satisfied the child should be returned to the wife’s care. In my view these factors justify an adjustment in the wife’s favour of 15 per cent.
The husband has removed at least $90,000 from Australia and paid that to Ms Debreva. He also removed $331,000 offshore. The funds available in Australia are significantly less than the monies already removed and retained by the husband.
In circumstances where:
(a)the pool available for distribution in Australia is modest;
(b)the husband has removed cash assets from Australia;
(c)the husband has wholly failed in his duty of disclosure; and
(d)the husband has substantially failed to comply with the orders for spousal maintenance, such that the wife is owed $75,120 by way of arrears (being the $30,000 owing as at 20 June 2023 and the balance having accumulated between September 2023 and the hearing date);
I am satisfied it is appropriate to provide for the wife to retain all the tangible assets in Australia.
I am also satisfied it is appropriate, and just and equitable that the wife thereafter receive 100% per cent of the husband’s entitlement in the fund.
I do not know whether the husband rolled his entire superannuation entitlements into the self‑managed superannuation fund in early 2023, or whether he has other superannuation entitlements as a result of his employment over the years, none of which he has disclosed. Considering that non-disclosure, I regard it as appropriate to err on the side of generosity to the wife so that she is not disadvantaged by the husband’s lack of participation and discovery.
The husband is on notice that the wife sought an order she retain the entire superannuation entitlement and the trustees have been afforded procedural fairness. They were served with a precise set of proposed superannuation splitting orders on 6 June 2024. Neither has provided any response to those proposed orders.
The husband has not participated in these proceedings to adduce any evidence that would persuade me that the orders as to superannuation as sought by the wife are not just and equitable.
PROPERTY ORDERS TO BE MADE
For these reasons, I make the orders substantially as sought by the wife. That includes making orders pursuant to s 106A of the Family Law Act as it appears likely the husband will not execute any documents necessary to give effect to my orders.
The division of assets and superannuation as I have determined goes some way towards recognising the wife’s contributions over the course of the parties’ 10 year relationship as well as recognising her future needs.
I will give the wife leave to provide a copy of these reasons to the appropriate regulatory authority regarding what appears to be the deliberate misuse of the husband’s superannuation entitlements.
SERVICE
The wife shall ensure the husband is provided with a copy of my orders and reasons for judgment. He has the liberty to seek relief pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), as these orders have been made in his absence. To provide him with an opportunity to make any such application, the payment to the wife of the monies shall not take effect until 14 days after the wife has served the husband, by email.
The trustees of the self-managed superannuation fund will also have to be served.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 8 July 2024
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