BERENZ & BERENZ

[2019] FCCA 3833

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERENZ & BERENZ [2019] FCCA 3833

Catchwords:
FAMILY LAW – Non-compliance with previous orders – sale of the former matrimonial home – where the mother has the care of the children – where the respondent failed to file a response or affidavit – where the respondent failed to appear at a Conciliation Conference – where the respondent’s conduct has caused the applicant to incur costs.

Applicant: MS BERENZ

Respondent: MR BERENZ

File Number: DGC 1123 of 2019

Judgment of: Judge McNab

Hearing date: 5 December 2019

Date of Last Submission: 5 December 2019

Delivered at: Dandenong

Delivered on: 5 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Weerappah

Solicitors for the Applicant: Carroll Goldsmith Lawyers

The Respondent appearing in person

ORDERS

1. The Applicant Wife is authorised by this Order to receive and obtain from Victorian Property Settlements (“VPS”) the Transfer of Land in the possession of VPS dated 30 May 2016 and signed by Mr A as trustee of the bankrupt estate of Mr Berenz and Mr Berenz in relation to the former matrimonial home at B Street, Suburb C, being the whole of the land more particularly described in Certificate of Title Volume (“the Real Property”).

2. It is requested that under Section 106A of the Family Law Act 1975 (Cth), the Registrar of Titles authorises a Registrar of the Federal Circuit Court of Australia to sign in the name of and on behalf of the Respondent Husband, Mr Berenz, all documents required to transfer the title of the Real Property into the name of the Applicant Wife, Ms Berenz as sole proprietor.

3. Upon the Applicant Wife obtaining legal title for the Real Property, the Applicant Wife is at liberty to facilitate the real property to be sold altogether out of Court (“the Sale”) and upon completion of the Sale, the proceeds of sale be applied as follows:

   (a)firstly to pay all costs, commissions and expenses of the Sale;

   (b)secondly to discharge the mortgage and any other encumbrance affecting the Real Property;

   (c)the balance to be divided as follows:

   (i)70% of the balance to the Applicant Wife;

   (ii)from the 30% remaining, and after the deduction of the Wife’s solicitors’ legal costs as ordered to be paid by the Respondent Husband by this Honourable Court, the net balance then to be paid to the Respondent Husband.

4. The Applicant Wife’s solicitors be at liberty to undertake all the required tasks to prepare the relevant conveyancing documents for the sale and settlement of the Real Property.

5. The Applicant Wife have liberty to choose the real estate agent to undertake the task of the sale of the Real Property under such terms and conditions as approved by the Applicant Wife.

6. Pursuant to section 114(1)(f) of the Family Law Act 1975 the Applicant Wife from 30 days of this Order have the right to sole use and occupancy of the former matrimonial home herein described as the Real Property located at B Street, Suburb C.

7. Pursuant to section 114(1)(b) of the Family Law Act 1975 the Respondent Husband is hereby restrained by injunction from entering or remaining within 200 metres of the former matrimonial home herein referred to as the Real Property located at B Street, Suburb C from 30 days of the date of this Order.

8. Upon the Applicant Wife being entitled to exclusive possession of the Real Property as outlined in these Orders, it is requested that the Commissioner of the Australian Federal Police refer these Orders to the Commissioner of Victoria Police to assist the Applicant Wife to obtain peaceful entry to the Real Property and take exclusive possession of same.

9. Until settlement of the Sale of the Real Property, the Respondent be solely liable for the payment of the mortgage and be liable for and indemnify the Applicant Wife against all rates, taxes and like apportionable outgoings of whatsoever nature and kind as they fall due and payable in relation to the Real Property.

10. Unless otherwise specified in these orders and save for the purposes 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) in the possession of such party as at the date of these Orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the Respondent)

    (b)Money standing to the credit of the parties in any joint bank account is to become the property of the Applicant Wife;

    (c)Insurance policies remain the sole property of the owner named therein;

    (d)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;

    (e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed;

    (f)There be no claims against each parties’ superannuation.

11. The Respondent pay the Applicant’s costs of an incidental to this day, including the preparation of an amended application and affidavit, fixed in the sum of $3,300.

12. The Respondent pay the Applicant’s costs reserved on 22 October 2019 fixed in the sum of $3,300.

13. The Applicant Wife has liberty to apply in relation to these Orders.

AND THE COURT ORDERS THAT:

1. Pursuant to Section 81 of the Family Law Act1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1123 of 2019

MS BERENZ

Applicant

And

MR BERENZ

Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. This is a case which was commenced by an Initiating Application (filed 10 April 2019). By that Initiating Application, the applicant wife seeks orders for the distribution of matrimonial assets.

Procedural history

1. The matter came before the Court in the duty list on 25 June 2019. On that day, orders were made by consent in the following terms:

   IT IS ORDERED BY CONSENT:

   1. That the Respondent Husband file, within 21 days, the following documentation:

   (a) His Response;

   (b) His Financial Statement;

   (c) His Affidavit in support of his Response.

   2. That the Respondent Husband (having discharged his bankruptcy) at his expense do all things required to transfer into his legal title within 21 days the former matrimonial home at B Street, Suburb C being the whole of the land more particularly described in Certificate of Title Volume.

   3. That upon the Respondent Husband not complying with Orders 1 and 2 hereof, the Applicant Wife be permitted to proceed on an undefended basis under Rule 13.03 of the Federal Circuit Court Rules.

   4. That the Respondent Husband is restrained by injunction from disposing any of his interest and title in the matrimonial home unless by order of this Honourable Court.

   5. That the Wife’s costs be reserved.

   6. That this matter be adjourned for a Conciliation Conference on 13 September 2019 at 11.00am and a subsequent Mention on 22 October 2019 at 10.00am.

2. The respondent husband has not filed a Response or Financial Statement and has thus failed to comply with orders 1 and 2. He further has failed to comply with order 6 as he failed to attend a conciliation conference on 13 September 2019.

3. On 13 September 2019, Registrar Riddiford made orders, including a costs order, against the respondent husband. Registrar Riddiford noted that:

   That the respondent was present in Court when Judge McNab made an order appointing a conciliation conference for this day.

4. The matter returned to Court today, 5 December 2019.

5. I am advised that the applicant’s solicitor emailed a copy of the Registrar’s orders to the respondent with a detailed letter explaining his obligations under the orders and the consequences of failing to follow them.

6. A directions hearing was held on 22 October 2019, as was anticipated by the orders of the Court made on 25 June 2019. Again, the respondent failed to attend.

7. On 22 October 2019, the matter was adjourned to 5 December 2019 at 10am for an interim hearing. That order granted leave to the applicant to amend her initiating application by 4pm 8 November 2019, with the respondent to file and serve a response affidavit and financial statement by 4pm 29 November 2019. Order 4 and 5 relevantly stated:

   4. In the event that the Respondent fails to file and serve a response affidavit and financial statement in accordance with Order 3 and/or appear on 5 December 2019, the matter may proceed undefended per r 13.03C of the Federal Circuit Court Rules 2001 (Cth).

   5. The applicant’s costs of $3,300 be reserved.

8. The applicant wife filed an Amended Initiating Application (filed 22 October 2019) together with an affidavit in support. That Amended Initiating Application and affidavit in support was served on the respondent electronically on 22 October 2019.

Consideration

1. The respondent husband appeared here before the Court on 5 December 2019 without having filed any material. He opposed the orders being sought by the applicant wife on the grounds that, whilst he had prepared some figures, life had taken over and he had not had time to complete his documentation. He expressed a view that he wished to retain the property and have the property subdivided to provide for his financial future. He disputed evidence in the wife’s affidavit in relation to his child support obligations. Otherwise, he provided no particular detail as to his present financial circumstances.

2. I note that the wife is not seeking any orders in respect of superannuation splitting. By her Amended Initiating Application, she is seeking orders for the distribution of the former matrimonial home with the balance to be distributed 70% in her favour and 30% in favour of the husband. The orders that have been handed to me today are in accordance with the orders that were proposed by the Amended Initiating Application which was served on the respondent. That minutes provides, effectively, machinery orders for the wife to obtain possession of title and for her to be in a position to facilitate the sale of the former matrimonial home. It also makes provision for sole occupancy by her of the former matrimonial home.

3. The Court will make orders in the terms sought by the applicant wife. The orders reflect the affidavit evidence of the wife in relation to her contributions to the family through her own work and her care of X born in 2006 and Y born in 2007 (‘the children’), which are set out in [15] and [16] of her affidavit of 10 April 2019. The matrimonial pool is a modest one. The orders sought take into account that the children are and will remain in her primary care.

4. The respondent has been given every opportunity to participate in the proceedings. He has not been denied procedural fairness in this matter and to delay the matter further would be an injustice to the wife who has retained a competent legal practitioner to assist her.

5. It is appropriate for the respondent husband to pay the applicant’s costs of the Amended Initiating Application, of the previous hearing on 22 October 2019 and this hearing. The amendment to the Initiating Application to include machinery orders to facilitate the sale of the former matrimonial home was necessitated by the non-participation of the respondent and his non-compliance with previous orders. Further, the Court reserved costs on 22 October 2019 and it is the respondent’s conduct that has resulted in the matter returning to Court.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date:  22 January 2020