FEDERAL CIRCUIT COURT OF AUSTRALIA
| BECKERT & BECKERT (No.2) | [2019] FCCA 1488 |
| Catchwords: FAMILY LAW – Parenting and property applications – respondent father seeks adjournment – comprehensive failure to observe directions for trial – best interests of children – failure to observe and perform orders made by consent – financial non-disclosure – directions necessary to promote progress in proceeding – failure to particularise orders that are to be sought in relation to parenting or property – unilateral withdrawal of funds from applicant’s account and from account of self-managed superannuation fund – father contends trial will be of 10 days duration – parties agree in transfer of proceeding to Family Court – costs. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65AA, 67Z, 69ZW, 75(2), 106A, 117, 117(2A) |
| Cases cited: Beckert & Beckert [2018] FCCA 3847 CDV v Minister for Immigration and Border Protection [2019] FCA 726 DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10 Eldred & Eldred (No 2) [2015] FamCA 188 Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 LAC & TRF & LKL [2005] FamCA 158 Mallett v Mallett (1984) 156 CLR 605 |
| Applicant: | MS BECKERT |
| Respondent: | MR BECKERT |
| File Number: | MLC 13463 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing dates: | 27, 28 May 2019 |
| Date of Last Submission: | 30 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 31 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nehmy |
| Solicitors for the Applicant: | Sayer Jones |
| The Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Ms Burt |
| Solicitors for the Independent Children's Lawyer: | Creative Family Law Solutions |
ORDERS
The trial of the proceeding, fixed for hearing pursuant to paragraph 3 of the Order made on 26 February 2018, be adjourned to a date to be fixed.
Pursuant to r 8.02 of the Federal Circuit Court Rules 2001, the proceeding be transferred to the Family Court of Australia at Melbourne.
The Applicant have leave nunc pro tunc to file and serve her Amended Initiating Application dated 14 May 2019.
On or before 4:00pm on Wednesday, 31 July 2019, the Respondent file and serve:
a)a Response to the Amended Initiating Application filed on 14 May 2019, indicating where he agrees or disagrees with the final orders sought by the Applicant and containing any further orders or directions which he seeks by way of final relief;
b)an affidavit by which the Respondent shall address, insofar as he proposes to respond, each matter in the Applicant’s affidavit sworn on 14 May 2019, and the Family Report of Mr A dated 9 January 2019;
c)each further affidavit on which he proposes to rely;
d)an updated Financial Statement; and
e)an Outline of Case, not exceeding 20 pages, providing his response to the Outlines of Case filed by the Applicant and the Independent Children’s Lawyer respectively, each filed on 22 May 2019, and any further matter…
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- AGLC
- Beckert and Beckert (No.2) [2019] FCCA 1488
- Case
- [2019] FCCA 1488
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant the adjournment sought by the respondent, considering the best interests of the children and the respondent's failure to comply with previous orders. Further issues included the need for directions to promote the progress of the proceeding, the respondent's failure to particularise his sought orders in relation to parenting or property, and the proper management of financial disclosure and the parties' superannuation interests. The court also had to address the issue of costs.
Judge A Kelly granted the adjournment of the trial and ordered the transfer of the proceeding to the Family Court of Australia. The court granted the applicant leave to file an amended initiating application and imposed detailed directions on the respondent regarding the filing of a response, affidavits addressing specific matters, an updated financial statement, and an outline of his case. The court also made specific orders concerning the preparation of taxation returns and financial statements for a family trust, the engagement of an accountant to assess the compliance of the parties' self-managed superannuation fund, and the payment of associated fees from funds held on trust. Further orders addressed the lodging of personal and company taxation returns, interim distributions of funds, and the holding of remaining balances in controlled monies accounts. The court also directed the parties to exchange lists of requested documents and to respond to such requests within a specified timeframe, with a provision for the proceeding to be heard on an undefended basis in default of compliance. Finally, the respondent was ordered to pay the applicant's costs of the vacated trial in the sum of $15,000.
Orders
Orders of the court
1.
The trial of the proceeding, fixed for hearing pursuant to paragraph 3 of the Order made on 26 February 2018, be adjourned to a date to be fixed.
2.
Pursuant to r 8.02 of the Federal Circuit Court Rules 2001, the proceeding be transferred to the Family Court of Australia at Melbourne.
3.
The Applicant have leave nunc pro tunc to file and serve her Amended Initiating Application dated 14 May 2019.
4.
On or before 4:00pm on Wednesday, 31 July 2019, the Respondent file and serve:
a) a Response to the Amended Initiating Application filed on 14 May 2019, indicating where he agrees or disagrees with the final orders sought by the Applicant and containing any further orders or directions which he seeks by way of final relief;
b) an affidavit by which the Respondent shall address, insofar as he proposes to respond, each matter in the Applicant’s affidavit sworn on 14 May 2019, and the Family Report of Mr A dated 9 January 2019;
c) each further affidavit on which he proposes to rely;
d) an updated Financial Statement; and
e) an Outline of Case, not exceeding 20 pages, providing his response to the Outlines of Case filed by the Applicant and the Independent Children’s Lawyer respectively, each filed on 22 May 2019, and any further matter on which he may rely in seeking final relief.
5.
Direct that by 4:00pm on Monday, 3 June 2019, the Applicant notify the Respondent of the names of two accountants that she proposes should prepare the taxation returns and financial statements for the Beckert Family Trust (the Trust), for the financial years ended 30 June 2017 and 30 June 2018 (taxation returns and financial statements).
6.
By 4:00pm on Friday, 7 June 2019, the Respondent shall select one of the two accountants nominated by the Applicant pursuant to paragraph 5 of this Order and notify the Applicant of such selection for the purposes of preparation of the Trust’s taxation returns and financial statements (the Accountant).
7.
In default of compliance with paragraph 6 of this Order, the Applicant be at liberty to nominate the Accountant.
8.
Direct that forthwith upon the nomination of the Accountant pursuant to paragraph 6 or 7 of this Order, the Applicant:
(a) request the Accountant to provide a list of all documents and information that the Accountant may require so as to prepare the Trust’s taxation returns and financial statements;
(b) engage the Accountant to prepare and furnish to the parties the Trust’s taxation returns and financial statements.
9.
Within 21 days of the receipt of the Accountant’s response to the request made pursuant to paragraph 8(a) of this Order, the parties shall as soon as is reasonably practicable do all acts and things, produce all documents and records which are in their possession, custody and control and sign all documents, whether in their personal capacity or as directors of the trustee of the Trust, Beckert Pty Ltd (ACN …) (Trustee), as may be necessary to enable the Accountant to prepare and lodge the Trust’s taxation returns and financial statements.
10.
The parties forthwith do all acts and things required to engage the Accountant to furnish advice to the parties as to:
a) whether the Beckert Self-Managed Superannuation Fund (SMSF) is a compliant self-managed superannuation fund; and
b) if it is not, the steps that are required to make the SMSF a compliant self-managed superannuation fund and the consequences of failing to do so,
and in default of such engagement by 4:00pm on Friday, 7 June 2019, the Applicant be at liberty to engage the Accountant for that purpose.
11.
The fees payable to the Accountant for the work undertaken pursuant to paragraphs 8 and 10 of this Order be paid from the monies held by the Applicant’s solicitors, Sayer Jones Pty Ltd, in Westpac Bank BSB … Account Number … on trust for the parties in their capacity as directors of the Trustee (Account …).
12.
By 4.00pm on Wednesday 31 July 2019, the Respondent shall do all acts and things as may be necessary to:
a) lodge his personal taxation return for the financial year ended 30 June 2018;
b) lodge the taxation return for [K] Pty Ltd for the financial year ended 30 June 2018; and
c) serve a copy of each such taxation return on the Applicant.
13.
The parties forthwith do all acts and things as may be necessary to authorise that the monies payable to the Applicant pursuant to paragraph 8(a) of the consent Engrossed Minute annexed to the Order made on 26 February 2018 be paid to the Applicant from the monies held in Account ….
14.
The parties forthwith do all acts and things to authorise:
a) an interim distribution of monies to the Applicant in the sum of $35,000 with such sum to be characterised at trial;
b) payment of the outstanding annual review fee charged by ASIC in the sum of $592 respecting Beckert Investments Pty Ltd,
with such payments to be paid from the monies held by LMG Lawyers on trust for the Applicant in Trust Account No ….
15.
In default of compliance with paragraphs 11, 13 or 14 of this Order the principal of Sayer Jones Pty Ltd, William Henry Jones, be authorised pursuant to section 106A of the Family Law Act 1975 (Cth) to do all acts and things and execute all instruments as may be necessary to enable the respective payments to be made and to give validity and operation to these Orders and each such instrument.
16.
Forthwith upon the payments to be made pursuant to in paragraphs 11, 13 or 14 of this Order, the balance of monies currently held by LMG Lawyers and Toner & May Legal respectively on behalf of the parties personally or in their capacity as directors of the Trustee or the Trustee be paid to Sayer Jones Pty Ltd, with such monies to be held until further order in interest bearing Controlled Monies Accounts (CMA), as follows:
a) as to the monies currently held on behalf of the parties themselves, to be invested in a CMA in the names of the parties;
b) the monies currently held on behalf of Beckert Investments Pty Ltd to be paid into the Account ….
17.
Direct that service of a sealed copy of this Order upon LMG Lawyers and Toner & May Legal respectively shall be sufficient evidence of the parties’ authority for each firm of lawyers to do all acts and things and make such payments as are to be made pursuant to this Order.
18.
By 4:00pm on Monday, 3 June 2019, each party provide to the other a list of the documents, disclosure and production of which they seek and within 21 days of such request being made, the other party shall respond to that request attaching each of the documents sought or, if unable to be produced, details as to why production is unable to occur.
19.
In default of compliance with this Order, either party have leave to apply for the proceeding to be heard on an undefended basis.
20.
The respondent pay the applicant’s costs of the trial vacated on 27 May 2019, fixed in the sum of $15,000.
AND THE COURT NOTES THAT:
A. The Independent Children’s Lawyer has this day invited the Respondent to undertake a supervised hair follicle alcohol test through the Australian Workplace Drug Testing Service (AWDTS) or its nominee, with such testing to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory.
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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