HORVATH & HORVATH (No.2)

[2020] FCCA 1570

FEDERAL CIRCUIT COURT OF AUSTRALIA

HORVATH & HORVATH (No.2) [2020] FCCA 1570

Catchwords:
FAMILY LAW – Property – previous final orders made for alteration of property interests – where husband failed to make payment in accordance with previous orders – where the trustee objected to the form of the orders – where the wife applied to vary the orders – where the husband has not participated in proceedings since before the trial – vary the previous order as proposed by the wife.

Legislation:

Family Law Act 1975 (Cth), s.79A

Applicant: MS HORVATH

Respondent: MR HORVATH

File Number: DNC 549 of 2017

Judgment of: Judge Young

Hearing date: 12 June 2020

Date of Last Submission: 12 June 2020

Delivered at: Darwin

Delivered on: 12 June 2020

REPRESENTATION

The Applicant: In person

The Respondent: No appearance

ORDERS

INJUNCTIVE ORDERS

1. That Mr Horvath be restrained and an injunction is issued restraining him from disposing of or dealing with any money or chose-in-action in any bank or financial institution, including any in:

   (a) the ANZ Bank (including account no. ...62);

   (b) the Bank G (including account nos. ...7, ...4 and ...9);

   other than for the purpose of giving effect to the orders below.

2. That Mr Horvath be restrained and an injunction is issued restraining him from disposing of, dealing with or rolling over any interest held in Super Fund A or any other retirement or superannuation account other than for the purpose of giving effect to the orders below.

OTHER ORDERS

1. That the wife is to serve a copy of these orders on the trustee or chief executive of the Defence Force Retirement and Death Benefits Scheme and the trustee or chief executive is to be given 28 days to notify the court and the wife if the trustee or chief executive wishes to be heard in relation to the orders.

2. That order 5 is to be binding upon the Commonwealth Superannuation Corporation (“CSC”) a Trustee of the Defence Force Retirement and Death Benefits Scheme (“DFRDBS”).

3. That pursuant to s 90XT(1)(b) of the Family Law Act 1975

   (a) whenever a splittable payment becomes payable in respect of the husband’s interest in the Defence Force Retirement and Death Benefits Scheme the wife is entitled to be paid 50% of the splittable payment, and

   (b) there is a corresponding reduction in the entitlement of the husband.

4. That the operative time for order 5 is 90 days after service of a sealed copy of these orders on the trustee or chief executive.

5. There is liberty to apply to the court in respect of these orders.

6. All other property is to remain the property of the party who has possession of it at the time of these orders.

IT IS NOTED that publication of this judgment under the pseudonym Horvath & Horvath (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 549 of 2017

MS HORVATH

Applicant

And

MR HORVATH

Respondent

REASONS FOR JUDGMENT

1. On 4 June 2019 orders for alteration of property interests were made and reasons for judgment handed down. The husband did not appear during the trial. The orders provided, in essence, for the husband to pay the wife a lump sum of $63,455 within 60 days. If he failed to make the payment the orders provided for a split of his Defence Force Retirement and Death Benefits Scheme (“DFRDBS”) pension. The husband has failed to pay the lump sum.

2. The wife, who was unrepresented at the time judgment was delivered, eventually served the DFRDBS trustee with a copy of the orders. The trustee objected to the form of the orders, particularly that fact that the splitting order was contingent on the non-payment of the lump sum by the husband. The trustee said it should not be responsible for ascertaining if the condition for splitting, the non-payment of the lump sum had been met. The trustee wanted unconditional orders. The wife applied to vary the orders to simply provide for an unconditional splitting of the pension. The trustee also sought some minor changes in the description of the fund and the trustee.

3. The husband has not participated in proceedings since before the trial. However, he was notified by my chambers at his current e-mail address (the one appearing in his former lawyer’s notice of ceasing to act) of the wife’s application. He responded by saying that he was living in a foreign country, that he had remarried and had a young child, and that his pension was little enough to live on. He said he did not have access to any lump sum of money. He made various arguments against the pension splitting order. I infer from the tenor of the letter that the husband was aware of the terms of the orders made on 4 June 2019. These arguments by the husband should have been made at the time of trial, not after the making of orders in an undefended hearing.

4. I am satisfied for the purposes of s 79A(1)(b) of the Act that circumstances have arisen since the making of the order, that is, the trustee’s objection, that make it impracticable for the order or part of the order to be carried out. I am also satisfied for the purposes of s 79A(1)(c) that the husband has defaulted in carrying out an obligation under the orders and it is just and equitable to vary the order to remove the condition relating to non-payment of the lump sum.

5. Accordingly, I will vary the order as proposed by the wife.  The effect of that is simply to remove the condition of non-payment of the lump sum by the husband. I am satisfied that condition will not be met and the splitting order should take effect unconditionally.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 12 June 2020