AVERILL & AVERILL

Case [2021] FCCA 1538


FEDERAL CIRCUIT COURT OF AUSTRALIA

AVERILL & AVERILL [2021] FCCA 1538

Catchwords:
FAMILY LAW – Undefended hearing – orders made setting matter down for undefended hearing as against the husband – husband appeared at undefended hearing – husband made an application to adjourn the undefended hearing –husband did not file court documents as directed – husband asserts mental health difficulties preventing him from participating in proceedings – wife opposed application – Court finds that the husband’s application is not made out – matter proceeded on an undefended basis without submissions or evidence from the husband.

FAMILY LAW – Property – application pursuant to section 79 – Court finds it is just and equitable to make an order pursuant to section 79 – consideration of matters under section 79(4) – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79
Federal Circuit Court Rules 2001 (Cth), r.16.05

Cases cited:

Hepworth v Hepworth (1963) 110 CLR 309
Taylor v Taylor (1979) 143 CLR 1
In the Marriage of Wilkes (1981) 7 Fam LR 58
Lenijamar Pty Ltd v AGC (Advances) Ltd (1900) 27 FCR 388
In the Marriage of Harris (1991) 104 FLR 458
Kessey & Kessey (1994) 18 Fam LR 149
Allesch v Maunz (2000) 203 CLR 172
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
AJO v GRO (2005) 191 FLR 317
Stanford & Stanford (2012) 247 CLR 108
Leslighter & Fitzgerald-Stevens (2012) 47 FamLR 384
Dickons & Dickons [2012] FamCAFC 154
Bevan v Bevan (2013) 279 FLR 1
Vass & Vass [2015] FamCAFC 51
Fields & Smith [2015] FamCAFC 57
Talbot & Talbot [2015] FamCAFC 132
Masoud & Masoud [2016] FamCAFC 24
Chancellor & McCoy [2016] FamCAFC 256
Grier & Malphas (2017) 55 Fam LR 107
Fontana & Fontana [2018] FamCAFC 63
Trevi & Trevi [2018] FamCAFC 173
Jabour & Jabour [2019] FamCAFC 78
Frederick & Frederick [2019] FamCAFC 87
Mabb & Mabb & Anor [2020] FamCAFC 18

Applicant: MS AVERILL
Respondent: MR AVERILL
File Number: SYC 7567 of 2019
Judgment of: Judge Morley
Hearing date: 10 November 2020
Date of Last Submission: 10 November 2020
Delivered at: Sydney
Delivered on: 7 July 2021

REPRESENTATION

Solicitors for the Applicant: Ms Santo of Santo Family Lawyers
Counsel for the Respondent: Ms Snelling
Solicitors for the Respondent: Roden Solicitors

ORDERS

  1. The Court orders pursuant to section 79 of the Family Law Act 1975 (Cth):

    (a)That Order 1 made on 10 November 2020 is discharged.

    (b)That the specified percentage of all splittable payments made to the Applicant Wife as required by section 90XT(1)(b) of the Act out of the interest held by the Respondent Husband in Super Fund B is 73.92%.

    (c)That whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of the Respondent Husband from his interest in Super Fund B, the Applicant Wife is entitled to be paid 73.92% of the splittable payment and there shall be a corresponding reduction in the amount the Respondent…

Continue reading AVERILL & AVERILL

Sign in free to access the full text

Details
AGLC
AVERILL & AVERILL [2021] FCCA 1538
Case
[2021] FCCA 1538
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were husband and wife. The wife sought property adjustment orders under section 79 of the *Family Law Act 1975* (Cth). The matter was set down for an undefended hearing as against the husband.

At the scheduled undefended hearing, the husband appeared and sought an adjournment, asserting mental health difficulties that he claimed prevented his participation in the proceedings. He had not filed court documents as directed. The wife opposed the adjournment application.

Morley J found that the husband had not established grounds for an adjournment. Consequently, the court proceeded with the hearing on an undefended basis, without receiving submissions or evidence from the husband. The court considered the matters relevant to a section 79 application and determined it was just and equitable to make property adjustment orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.