FAMILY COURT OF AUSTRALIA
| BEREAT & BEREAT | [2010] FamCA 693 |
| FAMILY LAW – PROPERTY AND CHILDREN’S MATTER – UNDEFENDED PROCEEDING – Husband has not attended any court event in relation to the wife’s application – Husband is a resident of the Republic of France – Husband has not been in Australia since late 2008 – Husband advised via a letter that he did not seek to engage lawyers or oppose the wife’s claim – Consideration of requirements under regulations for service on the husband – Wife has gone to considerable effort and expense to attempt to personally serve all required documents – Compliance with regulation 12 of Family Law Regulations 2004 is waived FAMILY LAW – CHILDREN – PARENTING ORDERS – Husband has not seen the children for over eighteen months – Husband’s unilateral actions see the children have little to no interaction with him since separation – Presumption of equal shared parental responsibility is rebutted – Wife to have sole parental responsibility – Orders sought by wife are in children’s best interests FAMILY LAW – PROPERTY SETTLEMENT – Wife seeks certain add-backs or notional adjustments – Husband’s non-participation and lack of disclosure ought not prejudice the wife but justice and equity must nevertheless be done for the husband – Fifty percent of the notional adjustment sought by the wife is added back – Wife seeks orders that each party retains the property they currently hold achieving a 60/40 split – Division as sought is just and equitable in this case FAMILY LAW – SPOUSAL MAINTENANCE – Lump sum payment to enable the wife to complete further education FAMILY LAW – CHILD SUPPORT DEPARTURE – Establishment of special circumstances – Costs of caring for children in the way the parents had intended before separating FAMILY LAW – COSTS – Additional difficulties and expense by reason of the husband’s refusal to participate and residence overseas |
| Child Support (Assessment) Act 1989 (Cth) s 117; s 123; s 124 Family Law Act 1975 (Cth) Family Law Regulations 1984 (Cth) Regulations 5; 6; 12 Family Law Rules 2004 (Cth) r 11.02; |
| Black & Kellner (1992) FLC 92-287 Chappell & Chappell (2008) FLC 93-382 Chorn & Hopkins (2004) FLC 93-204 Clauson v Clauson [1995] FLC92-595 Hides & Hatton (1997) FLC 92-759 In the Marriage of Kohan (1993) FLC 92-340 Kouper & Kouper (No 3) [2009] FamCA 1080 Luckie & Luckie (1989) FLC 92-036 Mallahan & Mallahan [2010] FamCA 631 Mallet v Mallet (1984) 156 CLR 605 Morres v Papin and Rubber Trading Co Limited (1914) 14SR (NSW) 141 Munday v Bowman (1997) FLC 92-784 Omacini &Omacini (2005) FLC 93-218 R & R (No. 1) [2002] FMCAfam153 Townsend & Townsend (1995) FLC 92-569 Vartikian and Vartikian (No. 2) [1984] FLC 91-587 Vautin and Vautin [1998] FLC92-827 Weir & Weir (1993) FLC 92-338 |
| APPLICANT: | Ms Bereat |
| RESPONDENT: | Mr Bereat |
| FILE NUMBER: | BRC | 5191 | of | 2009 |
| DATE DELIVERED: | 10 August 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 13 July 2010 |
REPRESENTATION
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- AGLC
- BEREAT & BEREAT [2010] FamCA 693
- Case
- [2010] FamCA 693
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues. These included whether to dispense with certain service regulations given the husband's overseas residence and non-participation, and whether to proceed with the matter on an undefended basis. The court also had to consider the presumption of equal shared parental responsibility in light of the husband's lack of contact with the children, and whether to grant the wife sole parental responsibility. Furthermore, the court needed to address the wife's requests for property adjustments, spousal maintenance, and costs, balancing the husband's non-participation with the need for justice and equity.
Murphy J reasoned that the wife had made substantial efforts to comply with service requirements, and in the interests of justice, particularly given the husband's expressed intention not to participate, the court waived compliance with certain regulations. The presumption of equal shared parental responsibility was rebutted due to the husband's prolonged absence from the children's lives, leading to the granting of sole parental responsibility to the mother. In relation to property, while acknowledging the husband's lack of disclosure, the court made a notional adjustment of fifty percent of that sought by the wife, ultimately ordering a 60/40 split in favour of the wife, which was deemed just and equitable. The court also ordered a lump sum for spousal maintenance to facilitate the wife's further education. The wife's application for departure from the administrative assessment of child support was dismissed. Finally, the court ordered the husband to pay the wife's costs, reflecting the additional difficulties and expense incurred due to his refusal to participate and overseas residence.
Orders
Orders of the court
IT IS DIRECTED THAT
1.
A transcript of the hearing on 13 July 2010 before the Honourable Justice Murphy be provided to the parties at no cost to themselves, with the husband’s copy to be provided, in the first instance, to the solicitors for the wife.
2.
The solicitors for the wife serve upon the husband:
(a) a copy of the Outline of Argument filed by the wife on 12 July 2010;
(b) the husband’s copy of the transcript of the hearing on 13 July 2010; and
(c) the husband’s copy of the Orders and Reasons for Judgment of today.
IT IS ORDERED THAT
3.
Pursuant to Regulation 6 of the Family Law Regulations 1984, the wife be excused from compliance with Regulation 12 of the said Regulations, the requirements of which are hereby dispensed with.
4.
Pursuant to Rule 7.17 of the Family Law Rules 2004, service of each of the documents required by the order made on 16 March 2010 be taken to have been effected in accordance with that order on 17 June 2010, and all such other service as might be required by the Rules be dispensed with.
5.
Pursuant to Rule 11.02 (2) of the Family Law Rules 2004, this case be determined on an undefended basis.
IT IS FURTHER ORDERED THAT
Parenting Orders
6.
The mother have sole parental responsibility with respect to “major long-term issues” as that expression is defined in the Family Law Act 1975 (“the Act”) in respect of the children B, born … May 1996 and E, born … September 1999.
7.
The mother have sole parental responsibility with respect to issues that are not “major long-term issues” as defined in the Act in respect of the said children.
8.
The said children live with the mother.
9.
The said children shall be at liberty to spend time with and communicate with their father at all such times as may be agreed between the parties.
10.
The mother, by this order, is authorised to sign all such documents and do all such things as might be necessary so as to ensure that:
(a) a passport re-issue in each of the children’s names (as and when they respectively expire);
(b) thereafter the children have a valid and current passport issued in their name without the necessity of:
(i) obtaining the father’s consent which such consent is hereby waived in each case; and
(ii) the father signing a passport application for either of the said children.
11.
The said children be permitted to travel overseas at all such times as the mother, in her sole discretion, might determine.
12.
Notwithstanding the previous two paragraphs of these orders, should the Australian Department of Foreign Affairs and Trade require either or both of the children’s passport applications to be signed by their father then:
(a) A Registrar/Deputy Registrar or Judge of the Family Court of Australia, Brisbane Registry, is hereby appointed pursuant to the provisions of section 106A of the Family Law Act 1975 (as amended) to execute documents in the name of the father, and to do all acts and things necessary in respect of any such application in his stead.
(b) The execution of any such document by the said Registrar/Deputy Registrar or Judge shall have the same force, validity and effect as if the document had been executed by the father.
Settlement of Property
13.
The wife forthwith shall retain as her absolute property and the husband shall forthwith relinquish and/or transfer to the wife all his right, title and claim (if any) in and to the following:
(a) her interest in the following properties:
(i) the former matrimonial property situated at P, Gold Coast;
(ii) the unit situated at W, Gold Coast; and
(iii) the unit situated at S, Brisbane.
(b) all superannuation interests in the name of the wife;
(c) the wife’s motor vehicle;
(d) the furniture and chattels in the wife’s possession;
(e) the wife’s jewellery;
(f) any monies standing to the credit of the wife in any bank account (whether in Australia or overseas);
(g) the wife’s investment with Securcorp Pty Ltd; and
(h) all other interest or interests in any property or financial resources of whatsoever nature that the wife has in her name and/or possession as at the date of these Orders.
14.
The husband shall forthwith retain as his absolute property and the wife shall forthwith relinquish and/or transfer to the husband all her right, title and claim (if any) in and to the following:
(a) all superannuation interest in the name of the husband;
(b) the husband’s motor vehicle;
(c) the husband’s furniture and chattels;
(d) the husband’s jewellery;
(e) subject to compliance with paragraphs 21, 23 and 24 of these Orders, the balance of the monies standing to the credit of the husband in any bank account (whether in Australia or overseas);
(f) the balance (if any) of the husband’s investment with Securcorp Pty Ltd; and
(g) all other interest or interests in any property and financial resources of whatsoever nature that the husband has in his name and/or possession as at the date of these Orders.
15.
The husband and wife shall each be responsible for liabilities incurred in their respective names including all borrowings, personal loans and credit card facilities and shall indemnify and keep indemnified the other against any liability that may occur in respect thereof.
16.
The husband and wife shall each do all acts and things necessary, including signing all necessary documents, so as to give full force and effect to the provisions of these Orders and, in the event that either party refuses or neglects to comply with any provision of these Orders within fourteen (14) days of a written request to do so by the other party, then a Registrar of the Family Court of Australia at Brisbane be hereby appointed, pursuant to Section 106A of the Family Law Act, to execute all documents in the name of that party and to do all acts and things necessary to give the validity and operation to these Orders.
17.
The transferee spouse shall prepare any documents necessary to give effect to the provisions of these Orders at their cost, and further be responsible for the payment of registration fees (if any) in relation to the transfer of any property into their name.
18.
Any duty payable on transactions arising from these Orders or any documents executed pursuant to these Orders shall be paid by the transferee spouse.
19.
The parties shall comply promptly with all requisitions issued by the Office of State Revenue, Land Titles, Main Roads Department and any other government department in relation to any document executed or transacted pursuant to, or to give effect to, the terms and conditions of these Orders.
20.
In default of either of the parties hereto complying with any requisition so issued within fourteen (14) days on the date upon which any requisition issues, that the party not in default shall be entitled to comply with any of the said outstanding requisitions and recover from the other party in default the costs and outlays incurred in complying with any of the said requisitions with such costs to be calculated in accordance with the Family Law Rules.
Spousal Maintenance
21.
The husband shall pay to the wife, the sum of Twenty-Eight Thousand Dollars ($28,000) as and by way of lump sum spousal maintenance, with such payment to be made from the monies invested in the husband’s Suncorp Fixed Term Deposit Account (Account No. …57) and this order shall of itself provide sufficient authority to Suncorp to issue a cheque in that sum, payable to the wife.
Child Support and Departure
22.
The Application for Departure from the Administrative Assessment of the child support relating to the children by the wife be dismissed.
23.
The father forthwith pay to the mother’s solicitors Hartley Healy the sum of One Hundred Thousand Dollars ($100,000) to be held on Trust by them in the names of the mother and father as trustees upon trust to:
(a) Invest such sum in any secure investment considered by them appropriate but so as to enable compliance with the succeeding sub-paragraphs of this Order;
(b) Firstly pay to the Child Support Agency on a monthly basis, the amount due pursuant to such Child Support Assessments as apply to the said children until such time as either or both Assessments shall cease;
(c) Until cessation of Child Support Assessments in respect of each child or as otherwise ordered by a court exercising jurisdiction under the Child Support (Assessment) Act 1989, the balance of any funds so held shall be disbursed:
(i) Firstly in payment of any outstanding fees to the Child Support Agency or any arrears of child support owing pursuant to any Assessment in respect of either or both such children; and
(ii) Any balance, including any interest or other accretions remaining thereto to the father.
Costs
24.
The husband shall pay to the wife costs of and incidental to these proceedings fixed in the sum of Twenty Thousand Dollars ($20,000), with such payment to be made from monies invested in any account in the husband’s name and such payment to be made to the Trust Account of the wife’s solicitors, Messrs Hartley Healey.
25.
The husband be restrained and an injunction issue restraining the husband from dealing with any monies held in his name in the Suncorp Cash Management Account and the Suncorp Fixed Term Deposit, pending written notification to that financial institution from the wife’s solicitors that the monies ordered pursuant to paragraphs twenty-one (21), twenty-three (23) and twenty-four (24) of these orders have been made.
26.
Upon receipt of the notification from the wife’s solicitors contemplated by the previous paragraph of these orders, all previous injunctions, undertakings and restraints placed upon the husband in respect of the use of any funds in his name be forthwith discharged.
AND IT IS FURTHER ORDERED THAT
27.
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
28.
Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
29.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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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