BEREAT & BEREAT

[2009] FamCA 953

FAMILY COURT OF AUSTRALIA

BEREAT & BEREAT [2009] FamCA 953

FAMILY LAW – PRACTICE AND PROCEDURE – Application for substituted service – Insufficient evidence available as to the Husband’s circumstances – Application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – Costs – Security for costs – Seek extension of injunctions over bank accounts – Extension granted – Injunction applicable until further order

APPLICANT:

Ms Bereat

RESPONDENT: Mr Bereat

FILE NUMBER: BRC 5191 of 2009

DATE DELIVERED: 24 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 24 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page of Senior Counsel appeared for the Applicant Wife

SOLICITORS FOR THE APPLICANT: Hartley Healy Family Law Specialists

SOLICITOR FOR THE RESPONDENT: There was no appearance by the Respondent Husband

Orders

IT IS ORDERED THAT:

1. The proceedings be adjourned to the Judicial Duty List at 10.00 am on
   19 October 2009 at the Brisbane Registry of the Family Court.

2. The Husband file and serve his response, his financial statement and any affidavit material he seeks to rely upon by 4.00 pm on 16 October 2009.

3. The Wife to file within twenty-one (21) days of today’s date an English translation of the Husband’s letter dated 4 August 2009 and the medical certificate from Dr C dated 30 July 2009.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The injunction made by this Honourable Court on 19 June 2009 remain in force.

IT IS NOTED that publication of this judgment under the pseudonym Bereat & Bereat is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5191 of 2009

MS BEREAT

Applicant

And

MR BEREAT

Respondent

REASONS FOR JUDGMENT

1. I look at the draft orders that have been handed up in this matter and which I have been requested to make on today’s date.  I have already given leave for the applicant to file her affidavit on today’s date, so that does not need to be included in any order.  As I have indicated, I am not prepared to make an order for substituted service based on the state of material before the court.  In making these observations, I am conscious of the contents of the affidavit filed by leave on today’s date.  Whilst I am prepared to proceed on the basis that the father was residing with his father, Mr Bereat Snr, at the time of original service that is not the case at the present time.  What the court would need to know is how long they have resided together, the nature of their relationship.  The father has taken himself off overseas to various parts of Asia, seemingly.

2. That has not been verified.  I will need better material than is currently before the court.  In making these comments I am perfectly aware of the comments made in paragraphs 25 and 26 of the wife’s affidavit, namely:

   “I am concerned that [the husband] is engaging in a course of conduct to intentionally frustrate these proceedings and to prevent the resolution of property matters between us, as he does not accept that the marriage is at an end.  As deposed to at paragraph 27 of my affidavit filed in this honourable court on 16 June 2009, even on [the father] being served with the application for a domestic violence order, he could not accept that the marriage was over.”

3. Paragraph 26:

   “I cannot continue to afford payment of my legal fees in preparing court material and meet payment of my solicitor’s fees and counsel fees in appearing on my behalf if [the husband] engages in a course of conduct designed to intentionally frustrate these proceedings and prevent resolution of property settlement between us.”

4. Now, balanced against that, the wife then foreshadows, amending her application, in major particulars - and they are set out in paragraph 28 of her affidavit which are then sub-headed paragraphs 26.1, 26.2.  I assume that is a typographical error, however, she applies for an order for security for her ongoing costs.  She is seeking orders that she retain all the assets in her name and the husband retain all the investments in his name.  It would appear from paragraph 36 she is of the view that the net asset pool is about $2 million.  She seems to indicate that the effect of that is that she would retain assets of about $1.1 million and he would retain the balance.  There are considerable sums of money held by the husband in various accounts.  One account in particular has a closing balance of $400,000.  That was the Suncorp account 2854.  There appears to be about $200,000 in another account.

5. I am very cynical of the husband’s position.  He has written a letter to the court in French, and enclosed, seemingly, a medical certificate.  Those documents at my direction were forwarded to the wife’s solicitors.  It is not the court’s job to engage translators to translate these documents.  I am not informed of the contents.  I can read the husband’s letter, at least, his handwriting is legible.  The letter from Dr C, a psychiatrist, seemingly received at the Magistrates Court Southport on 14 August 2009, I find difficulty reading the handwriting.  I will direct that a translation be filed within 21 days.

6. It appears that having received the documents, the husband is off overseas, but until I know the terms of the psychiatrist’s report, I am unable to process the matter further.  I am, as I have said, not prepared to make an order for substituted service on the respondent’s father at this point in time, until I know whether he is going to have any further contact with his son.  I can make an order dispensing with service if the husband has placed himself in a position where he is travelling around Asia and not amenable to being served.  I need to know where is the respondent’s mother, does he have any siblings, does he have any close friends in Australia?  Not a word about any of these important aspects that one would normally expect to be covered in an application for substituted service, or an application dispensing with service.

7. So in the circumstances I will extend the injunction until further order, so the parties do not have to keep coming back to court to have the injunction extended.  That is the injunction made on 19 June this year.  The wife wants to file an amended application; that is a matter for her, but she is going to have to give consideration to bringing the contents of that amended application, somehow, to the attention of the respondent, or else being able to justify to the court why she should be allowed to proceed to seek orders by default in the circumstances. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  24 August 2009