ERINGTON & ERINGTON - [2020] FamCA 902

FAMILY COURT OF AUSTRALIA

ERINGTON & ERINGTON

[2020] FamCA 902

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks leave under Rule 11.02(2)(c) of the Family Law Rules to proceed on an undefended basis against the wife – Where the wife has repeatedly failed to comply with previous orders including by not filing appropriate material – Where the wife has been on notice since June 2020 that the matter may proceed undefended if she again failed to file appropriate material – application granted.

FAMILY LAW – PROPERTY SETTLEMENT – Where property pool consists only of debts and the parties’ respective superannuation entitlements – Where the husband submits that it would not be just and equitable to adjust the parties’ existing property interests – Where it is found that there is little difference between the parties’ superannuation interests once the part property settlement previously paid to the wife is taken into account – Where the husband has incurred significant costs, inflated by the wife’s conduct in these proceedings, to finalise this matter – Found that in all the circumstances it would not be just and equitable to alter the parties’ property interests.

Bankruptcy Act 1966(Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Family Law Rules 2004

Bevan & Bevan (2013) FLC 93-545
Davey v Lee (1990) 13 Fam LR 688
Garrett v Garrett (1984) FLC 91-539
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Stanford v Stanford (2012) 247 CLR 108
Tate JRD v Tate MT (2000) FLC 93-047

Quinn v Quinn (1979) FLC 90-677

APPLICANT:

Mr Erington

RESPONDENT:

Ms Erington

FILE NUMBER:

MLC

9064

2015

DATE DELIVERED:

27 October 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

27 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smallwood SC

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Ms Wiener

SOLICITOR FOR THE RESPONDENT:

Fogarty Oliver & Rothschild

Orders

The wife retain her PP Superannuation entitlements.
The husband retain his interest in the following:
(a) his legal and/or beneficial interest in the following entities and trusts:
(i)B Pty Ltd;
(ii)D Pty Ltd ATF Erington Family Trust;
(iii)Erington Pty Ltd ATF Erington Family Trust 2;
(iv)Erington Investments Pty Ltd ATF Erington Property Trust;
(v)QQ Pty Ltd;
(vi)Erington Investments Pty Ltd ATF Erington Investment Trust; and
(vii)any further or other entity or trust in which the husband has an interest
(the husband's entities)
(b) his PP Superannuation entitlements.
The husband be substituted as sole appointor for the husband's entities and the wife do all things and sign all documents required to effect that purpose at the husband's expense.
In the event the wife refuses or neglects to execute any instrument or document in accordance with order 3 herein within 3 days of being requested to do so in writing, the Registrar be and is hereby appointed pursuant to section 106A to execute such document or instrument in the name of the wife…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ERINGTON & ERINGTON

Details

AGLC: ERINGTON & ERINGTON [2020] FamCA 902
Case: [2020] FamCA 902
Decision Date: 27 October 2020

CaseChat Overview and Summary

In *Erington & Erington*, McEvoy J of the Family Court of Australia considered an application by the husband for leave to proceed on an undefended basis against the wife, and a related property settlement dispute. The wife had repeatedly failed to comply with previous court orders, including the filing of necessary material, and had been put on notice that the matter might proceed undefended if such non-compliance continued.

The primary legal issues before the court were whether to grant the husband leave to proceed on an undefended basis, and whether it would be just and equitable to alter the parties' existing property interests, which primarily comprised debts and superannuation entitlements. The husband argued that no adjustment should be made to the parties' property interests, particularly given the wife's conduct throughout the proceedings.

McEvoy J reasoned that the wife's persistent failure to comply with court orders, despite clear warnings, justified granting the husband leave to proceed on an undefended basis. Regarding the property settlement, the court found that once a previous part property settlement paid to the wife was accounted for, there was little difference between the parties' superannuation interests. Furthermore, the court considered the significant costs incurred by the husband in finalising the matter, which were exacerbated by the wife's conduct. In light of these circumstances, the court concluded that it would not be just and equitable to alter the parties' property interests.

Consequently, the court ordered that each party retain their respective superannuation entitlements and other property in their possession. The husband was substituted as the sole appointor for his business entities, with provisions made for the Registrar to execute documents on the wife's behalf if she failed to do so. All other extant applications were dismissed.

Orders

Orders of the court

The wife retain her PP Superannuation entitlements.

The husband retain his interest in the following:

(a) his legal and/or beneficial interest in the following entities and trusts:

(i) B Pty Ltd;

(ii) D Pty Ltd ATF Erington Family Trust;

(iii) Erington Pty Ltd ATF Erington Family Trust 2;

(iv) Erington Investments Pty Ltd ATF Erington Property Trust;

(v) QQ Pty Ltd;

(vi) Erington Investments Pty Ltd ATF Erington Investment Trust; and

(vii) any further or other entity or trust in which the husband has an interest

(the husband's entities)

(b) his PP Superannuation entitlements.

The husband be substituted as sole appointor for the husband's entities and the wife do all things and sign all documents required to effect that purpose at the husband's expense.

In the event the wife refuses or neglects to execute any instrument or document in accordance with order 3 herein within 3 days of being requested to do so in writing, the Registrar be and is hereby appointed pursuant to section 106A to execute such document or instrument in the name of the wife and do all acts and things necessary to give operation to the said document or instrument.

Unless specified in these orders 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 this date including bank accounts and savings, chattels, insurance policies and personal effects.

All extant applications of the husband and the wife otherwise be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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