HARPER & MORRIS

[2012] FamCA 456

FAMILY COURT OF AUSTRALIA

HARPER & MORRIS [2012] FamCA 456

FAMILY LAW - ORDERS – ex parte orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Harper

RESPONDENT: Ms Morris

FILE NUMBER: MLC 5557 of 2012

DATE DELIVERED: 5 October 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 5 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Crabtree

SOLICITOR FOR THE APPLICANT: Belleli King & Associates

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED:

1. That the Husband and the Wife 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 this Order, including furniture and personal possessions and like      chattels in their present possession and/or control.

1. That 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.

1. That the Husband and the Wife hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.

1. That the Husband assume sole responsibility for and indemnify the Wife against any liability for Westpac Flexi Loan Account no. …61, with a liability as at the date of these Orders of $6856.66.

1. That the Husband retain to the exclusion of the Wife the following:

   (a)the … Holden … station wagon motor vehicle registered number … currently in the Husband’s possession;

(b)      his half interest in the … Dodge … motor vehicle registered   number … currently in the Husband’s possession;

(c)      the Westpac Banking Corporation Echoice bank account in the   Husband’s name, Account number …37, for his own use and benefit;         
           (d)      his superannuation entitlement or interest in BT Lifetime Super fund
  for his own use and benefit.

1. That the Wife retain to the exclusion of the Husband the following:

   (a)      any motor vehicle registered in the Wife’s name and currently in the   Wife’s possession;

(b)      any superannuation entitlement or interest in the Wife’s name for
  her own use and benefit;

(c)      any monies held in any bank account in the Wife’s name for her
  own use and benefit.

1. That the Husband serve a sealed copy of these Orders upon the Wife as soon
              as practicable and thereafter file an Affidavit of Service verifying compliance
              with this Order.

1. That the Wife by Application and supporting Affidavit have leave to apply to
              set aside these orders within 28 days of service of this order upon her.

1. That otherwise all extant Applications be dismissed and removed from the
              list of cases awaiting final determination.

1. That pursuant to Section 81 of the Family Law Act 1975 (Cth) it is intended
              that these orders finally end the financial relationship between the parties.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably
              required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Harper & Morris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5557 of 2012

Mr Harper

Applicant

And

Ms Morris

Respondent

REASONS FOR JUDGMENT

1. In this matter the husband filed an Initiating Application on 22 June 2012 in which he sought final orders for property settlement.  The matter was listed for a Case Assessment Conference on 27 August 2012.  On that date, the wife did not appear, however she sent a letter to the Court in which she indicated that she did not propose to attend the Case Assessment Conference, did not oppose the husband’s application and that she had had legal advice.

2. On 27 August 2012, as a consequence of that Case Assessment Conference and the wife’s non-appearance, orders were made adjourning the matter to the Judicial Duty List today requiring both parties to appear or be represented today, requiring the husband to file and serve any amended initiating applications and any further affidavits on or before 14 September 2012, requiring the wife to file a response and any affidavits and a financial statement by 28 September 2012 and giving the husband liberty to apply to have the matter proceed on an undefended basis in the event that the wife either did not comply with the orders or did not appear at this hearing.

3. The wife has been called on two occasions this day and does not appear.  I am satisfied that she has been served both with the Initiating Application, that she has been served with a copy of the orders made 27 August 2012 and a copy of the further affidavit filed by the husband on 10 September 2012.  There are affidavits of service of the documents upon the wife on the file. 

4. The husband is aged 39 years of age.  The wife is 37 years of age.  They commenced cohabitation in or about May 2000 and were married in April 2009, separating finally on 8 November 2009. 

5. There are three children of the marriage, J and M, who are nine years of age and N who is seven years of age.  They live with the mother.  The husband has commenced a new relationship and is now living in South Australia and is presently unemployed and in receipt of a Newstart allowance and as a result does not see the children on any regular basis.  The wife lives in Geelong and it is the husband’s understanding that she is employed in the education sector, although he does not know what income she receives, what assets she has or what her superannuation entitlements might be.

6. I am told that the assets of the parties include a Holden motor vehicle worth about $1500, a bank account with about $400 in it and tools and camera and other equipment which is in the husband’s possession worth about $4750, total assets of around about $6700.  There is a loan to the Westpac Bank which is in the husband’s name alone of $6800.  There is a minute of orders that has been prepared by the solicitor for the husband and it is proposed that pursuant to those orders each of the parties retain the assets in their respective possessions and their superannuation entitlements and that there is otherwise no further adjustment as between them.

7. In all of the circumstances, I am satisfied that the wife is aware of these proceedings, that she does not propose to take any part in the proceedings and further in fact does not oppose the orders sought by the husband.  I am satisfied that the orders in the circumstances of this case are just and equitable and I will make the orders sought by the husband.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 5 October 2012.

Associate: 

Date:  16 October 2012