VURNIK & VURNIK

[2020] FamCA 1007

FAMILY COURT OF AUSTRALIA

VURNIK & VURNIK [2020] FamCA 1007

FAMILY LAW – PROPERTY – where respondent husband has consistently failed to participate in proceedings and to file documents – where applicant wife seeks to ready one property for sale and sell that property – where proceeds of sale will form part of capital in parties’ superannuation.

FAMILY LAW – INJUNCTIVE RELIEF – it is just and convenient as between the parties for the wife to be able to secure and ready the Suburb J property for sale and to be reimbursed for those expenses from the proceeds of sale of that property and to apply the proceeds in payment of specified liabilities.

Family Law Act 1975 (Cth)

APPLICANT: Ms Vurnik

RESPONDENT: Mr Vurnik

FILE NUMBER: MLC 12678 of 2018

DATE DELIVERED: 10 November 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 10 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Vurnik in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance by or on behalf of the husband

SOLICITOR FOR THE RESPONDENT:

Orders

1. The wife’s amended Initiating Application filed 3 November 2020 be adjourned to the Judicial Duty List on 15 February 2021 at 10.00 am.

2. The wife be and is hereby authorised to execute any documents and do any things in her capacity as a director of F Pty Ltd ACN …54 as trustee for H Super Fund (“the superannuation fund”) and in the place of the husband Mr Vurnik who is also a director of F Pty Ltd to sell the property at G Street, Suburb J (“the Suburb J property”).

3. The wife have sole conduct of the sale of the Suburb J property on such terms and conditions as she considers appropriate.

4. The wife be and is hereby entitled to enter and remain at the Suburb J property for the purpose of effecting any works necessary to reasonably ready the Suburb J property for sale.

5. Pending further order of the Court, the wife be entitled to sole use and occupation of the Suburb J property and the husband be and is hereby restrained by injunction from attending at or entering or remaining in the Suburb J property other than as provided for in paragraph 6 of this Order.

6. Within 30 days of service upon the husband of this Order, the husband notify the wife in writing of a date and time in December 2020 at which he proposes to attend the Suburb J property and remove from the Suburb J property any goods, chattels, or personalty in the Suburb J property.

7. In the event that the wife does not receive notice from the husband in accordance with paragraph 6 of this Order, the wife be and is hereby entitled to dispose of any goods, chattels, or personalty in the Suburb J property as she considers fit and not necessarily for value.

8. In the event that the wife receives notice from the husband in accordance with paragraph 6 of this Order that the husband fails or neglects to remove any goods, chattels or personalty from the Suburb J property in accordance with the notice, the wife be and is hereby entitled to dispose of any goods, chattels, or personalty in the Suburb J property as she considers fit and not necessarily for value.

9. The notice provided for in paragraph 5, to be given by the husband to the wife, be in writing and be sent electronically by email to the wife’s address, ...

10. Upon settlement of the sale of the Suburb J property, the wife apply the proceeds of sale as follows:

    (a)       To pay costs of and incidental to the sale;

    (b)       To pay all non statutory outstanding liabilities of and with respect to the property, which do not form an adjustment on the settlement of the sale of the property, including but not limited to electricity, gas, rubbish removal, building and works to ensure that the property is safe and not hazardous, or council fees. All such reasonable costs and expenses be supported by a receipt or other proof of payment;

    (c)       To reimburse the wife in relation to monies paid to insure the Suburb J property any such reimbursement to be supported by a receipt from the insurance company or other proof of payment;

    (d)       To pay any outstanding liabilities of F Pty Ltd ATF the superannuation fund owing to ASIC;

    (e)       To pay the balance into an account in the name of the applicant wife and trustee for the superannuation fund pending further Order of the Court.

11. For the avoidance of doubt, the adjustments on settlement of the sale of the Suburb J property will include outstanding rates, water charges, land tax and any other statutory charges attributable to the property.

12. I reserve to the wife liberty to make application subsequently for reimbursement of all reasonable costs and disbursements incurred by her, on behalf of the trustee of the superannuation fund, to ready the Suburb J property for sale.

13. The wife effect service of this Order on the husband by sending same electronically by email to the husband’s address (per the notice of address for service filed 25 March 2019) being ... . In due course the wife file and serve an affidavit of service having been effected in compliance with this Order.

14. I reserve to the husband liberty to apply to vary or set aside this Order or as he may be advised by filing and serving an application in a case not later than 14 days following service of this Order upon him by the wife.

15. The wife file any further amended initiating application upon which she seeks to rely, which complies with the Family Law Rules 2004 in that it specifies with precision the final orders sought in relation to an alteration of property interests and the husband file and serve any response thereto within 28 days of service upon him of that amended initiating application, such service to be effected by electronic means, that is, by email.

16. I reserve to the wife and/or to the husband and the wife by consent, liberty to secure an administrative adjournment of the hearing in the Judicial Duty List on 15 February 2021 in the event that the Suburb J property has not been sold. For the purpose of securing an administrative adjournment the wife contact my Associate, ... .

17. I reserve liberty to the parties or either of them to seek that any future interim application for compliance or implementation of this Order be listed before me within 7 days for directions.

18. For the avoidance of doubt, the wife is at liberty to provide a sealed copy of this Order to any person connected with the marketing or sale of the Suburb J property or the readying of the Suburb J property for sale.

19. My reasons for decision be transcribed and when transcribed be settled and distributed to the parties, by email to their respective address for service.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12678 of 2018

Ms Vurnik

Applicant

And

Mr Vurnik

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me in the judicial duty list.  It is the wife’s application for a final alteration of property interests in which the respondent husband has largely failed or neglected to participate. 

2. The applicant Ms Vurnik and the respondent Mr Vurnik were married in 1995 and separated in approximately February 2018.  The husband is 51 years old having been born in 1969.  The documents record that he is a tradesperson by profession, but may not have been employed since approximately 2015. 

3. The wife is also 51 years of age, having been born in 1969.  The documents reflect that she is employed full-time by C Organisation as an educator, earning an income of approximately $57,000 per annum, although, she tells me orally at this hearing that her income is approximately $100,000 per annum.  She resides at a property at D Street, in Suburb B, which is a property registered in her sole name.  The D Street property was purchased in approximately 1990 by the wife and her father that now stands in her sole name. 

4. The application for final alteration of property interests was initiated by the wife’s application filed on 1 November 2018.  The wife there sought a unparticularised alteration of property interests, asking to be excused from particularising the precise orders of “pending financial disclosure by the respondent”.  She also sought “that there be a splitting order with respect to the parties’ respective interests in H Super Fund and that she be excused from particularising the precise orders sought by her as to superannuation pending a sale of the property owned by the fund and its conversion into cash and financial disclosure by the respondent.” 

5. In the initiating application filed 1 November 2018, the wife also sought a raft of interim procedural orders.  On 3 November 2020, that is last week, the wife filed an amended initiating application in which the final orders sought remain the same, but there is an alteration to the interim procedural orders sought. 

6. The history of non-participation by the husband is extensive.  The first return date of the proceedings, which were instituted in the Federal Circuit Court, was on 12 December 2018 before Judge Riley.  Mr Easteal, solicitor, appeared for the wife.  There was no appearance by the husband, and the matter was adjourned for the documents to be served on the husband.  They were, in due course, served on the husband. 

7. The proceedings were returnable on 11 February 2019, again, before Judge Riley.  On that day Mr McDermott, solicitor, appeared for the wife but there was no appearance by or on behalf of the husband.  The matter was then adjourned to 25 March 2019 for an interim hearing and the wife was directed to serve the order of 11 February 2019 on the husband personally. 

8. On 25 March 2019 the wife was represented by Mr N, her solicitor, and the respondent husband appeared in person.  On my reading of the court file, this is the only occasion on which the husband has participated in the proceedings by attending Court.  On that day he also filed a notice of address for service.  That is document 9 on the court file.  It specifies G Street, Suburb J as his address for service.  His telephone number is specified as … and his email address is ... . 

9. In these reasons I will refer to the property at specifies G Street, Suburb J as “the Suburb J property”.

10. On 25 March 2019, the matter was adjourned for an interim hearing on 30 August 2019 at 10 am.  Other orders were also made by consent, which provided for a sale of a property owned in the joint names of the parties at K Street, Suburb L, with provisions for the marketing of that property and an application of the proceeds of sale of the property.  It was ordered that by 25 April 2019 the respondent husband file and serve;

    a)a response,

    b)a financial statement and

    c)any affidavit upon which he seeks to rely. 

    In the Federal Circuit Court the affidavit material is filed prior to the final hearing and in support of interim relief sought.  The husband has failed or neglected to comply with that order for filing documents.

11. It was also ordered that the parties would attend a private mediation with an agreed meditator in August 2019 and pay equally for the cost of the mediator convening the mediation.  No such mediation has taken place. 

12. In due course, the K Street property was sold.  The wife’s affidavit material sets out her preparation of the property for sale and her application of the proceeds of sale and the fact that she incurred significant expenses in readying the property for sale, which expenses she deposes enhance the value which was ultimately achieved for the property but in respect of which she has not been reimbursed. 

13. The husband is on notice, by virtue of the original initiating application and the last page thereof, that in the event that he does not attend court “orders may be made in your absence”.  The same notice appears in the wife’s amended application filed last week.

14. Now, in relation to these proceedings, which are now transferred to the Family Court of Australia, I am satisfied that the wife’s amended initiating application was duly served on the husband.  I am so satisfied by the affidavit of the wife and affidavit of service sworn by the wife on 3 November 2020, which is document 18 on the court file.

15. Having read the matter, I am concerned that these proceedings be dealt with expeditiously and so as not to erode the parties’ equity in the property which is to be divided between them.  I will accede the application of the wife of which the husband has specific notice.  However, out of an abundance of caution, I will also reserve liberty to the husband to seek to have these interim orders, varied or set aside on his application providing such application is made by him promptly.

16. The Court has broad powers to grant injunctions in relation to the property of the parties or either of them.  In order to be granted an injunction it must be “proper” to do so which means that it is reasonable and just in the circumstances of the case.  In short, the Court must be satisfied that it is just or convenient to grant an injunction.

17. I am satisfied that it is just and convenient as between the parties for the wife to be able to secure and ready the Suburb J property for sale and to be reimbursed for those expenses from the proceeds of sale of that property.

18. I am satisfied that it is just and convenient for the wife to apply the proceeds of sale to the payment of certain specified liabilities associated with the property or the superannuation fund.  If I am wrong, these payments are able to be adjusted as between parties. 

19. The legal and equitable interests of the parties have not been finally altered by the Court. I am not exercising the Court’s power under s 79 of the Family Law Act 1975 at this point.  This Order is made pursuant to the Court’s injunctive powers.

20. I have adjourned the proceedings to the judicial duty list on 15 February 2021.  In my estimation it is unlikely that the Suburb J property will be able to be sold by that time.  If there is no sale, it may be that the wife or the husband seeks some relief in relation to the sale in February 2021.  However, if the wife or both of the parties do not want to come to Court in February 2021, the matter can be administratively adjourned by arrangement with my chambers.  I have specified my chambers because I have knowledge of the matter up to now, whereas the judges sitting in the judicial duty list in February 2021 won’t be familiar with the matter.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 10 November 2020.

Associate:

Date:  30 November 2020