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…
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- Andonov & Perko [2024] FedCFamC1F 456
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- [2024] FedCFamC1F 456
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CaseChat Overview and Summary
The court considered several legal issues, including the wife's request to proceed on an undefended basis due to the husband's non-participation, the appropriate parenting orders in light of the husband's abduction of the child, and the distribution of property and spousal maintenance given the husband's failure to disclose his assets and income. The court noted the wife's primary care of the child before the abduction and the husband's removal of significant funds. The court also highlighted the husband's failure to comply with spousal maintenance orders and his removal of superannuation funds.
The court granted the wife leave to proceed on an undefended basis and ordered that the child be returned to Australia and placed in the wife's care. The court also ordered that the wife have sole decision-making responsibility for the child. In terms of property, the court ordered the sale of the former matrimonial home and directed the husband to pay the wife $50,000. Additionally, the court directed the trustees of the husband's superannuation fund to recover the removed funds and ensure compliance with regulatory requirements, and ordered that the wife receive 100 per cent of the husband's entitlements in the fund. The court further ordered the husband to pay spousal maintenance and directed the Australian Federal Police to place the child on the Airport Watch List.
The final orders included provisions for the return of the child to Australia, the wife's sole decision-making responsibility for the child, the sale of the former matrimonial home, payment of $50,000 to the wife, compliance with superannuation fund regulations, and the wife receiving 100 per cent of the husband's entitlements in the fund. The court also directed the trustees to recover the removed funds and restrained the husband and trustees from transferring any monies out of the fund without written agreement or court order. The wife was granted leave to provide reasons for judgment to relevant regulatory bodies regarding the husband's self-managed superannuation fund.
Orders
Orders of the court
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.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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.