Vurnik & Vurnik

[2021] FedCFamC1F 352

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Vurnik & Vurnik [2021] FedCFamC1F 352

File number(s):	MLC 12678 of 2018
Judgment of:	BENNETT J
Date of judgment:	13 December 2021
Catchwords:	FAMILY LAW- FINANCIAL – case management of unopposed proceedings towards a final determination
Division:	Division 1 First Instance
Number of paragraphs:	10
Date of hearing:	13 December 2021
Place:	Melbourne (via MS Teams)
Counsel for the Applicant:	Litigant in person
Counsel for the Respondent:	No appearance

ORDERS

MLC 12678 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS VURNIK

Applicant

AND:

MR VURNIK

Respondent

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	13 DECEMBER 2021

THE COURT ORDERS THAT:

1.There be leave to the applicant wife to make an oral application in the terms of paragraph 11 of her affidavit dated 8 December 2021. Namely, for orders:

(a)That Mr Vurnik be removed and no longer eligible to be director and/or shareholder of F Pty Ltd hence having him removed from ASIC statements and responsibilities.

(b)That as per previous order the wife continue having sole control and conduct of the property at G Street, Suburb J. (known as the J Property);

(c)Unless the respondent makes any claims to the Court for his share of the property, as the Court deems fit, the property is left in the wife’s sole control and possession;

(d)The Court’s assistance with regard to any proceeds and distribution of money’s from the respondent’s late mother’s estate be re-directed to his children (the grandchildren of his late mother); and

(e)Any other orders the Court deems fit.

2.That the husband and wife do all acts and things necessary to cause the husband to be removed as a director of F Pty Ltd and the husband transfer to the wife his entire shareholding in F Pty Ltd.

3.For the purpose of implementing the preceding paragraph of this Order, pursuant to s106A of the Family Law Act 1975 the wife be and is hereby appointed to execute any deed or instrument in the name of the husband and to do all acts and things necessary to give the liberty and operation to any such document, deed or instrument.

4.Paragraph 1 of the Order made on 23 April 2021, pursuant to which the applicant wife has sole conduct and control of the property at G Street, Suburb J on behalf of the H Super Fund, continue in full force and effect.

5.That by not later than 15 October 2022 the applicant wife file and serve an Amended Initiating Application in which she specifies with precision the final orders which she seeks be made in this financial proceeding.

6.Within 30 days of service on the husband of the wife’s Amended Initiating Application the husband file and serve a response and any evidence in support.

7.Both parties file and serve a Statement of Financial Circumstances by 20 December 2022.

8.This matter be adjourned to 2 February 2023 at 9.00 am (“the hearing) when the court will consider making final financial orders, which conclude these proceedings. If the husband fails or neglects to file a response or other documents or to attend court personally when required the matter will proceed.

9.The husband attend Court in person for the hearing. If the husband is not double vaccinated for Covid-19 and therefore cannot enter the building, he notify my Associate –... – and the wife by not later than 14 days prior to the hearing and provide the email address and telephone number which he will be linked in from for the hearing to participate by audio-visual means.

10.The applicant wife be in a position at the hearing to prove service of the Amended Initiating Application on the husband.

11.My reasons for decision this day be transcribed and when settled be placed on the Court file and a copy provided to the parties.

AND THE COURT NOTES THAT:

A.The wife has sworn that her affidavit dated 8 December 2021 and filed pursuant to the practice direction, without a wet signature, was sworn to as being true and correct in every particular in Court this day.

B.In the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
Ex tempore

BENNETT J:

1. This matter concerns a final alteration of property interests in which the husband fails or neglects to participate. The applicant wife has continued to manage the property of the H Super Fund to the point where the real property, which is the primary asset of the self-managed fund, and is situated at G Street, Suburb J, was rectified to a state where it was leased in September 2021 for a term of one year. 

   PROCEDURAL FAIRNESS

2. I have the wife’s affidavit of service.  She deposes that she sent the affidavit filed by her on 8 December 2021 to the husband by email.  On 8 December 2021 at 4.29 pm, that email has not bounced back or otherwise been returned.  However, she has not heard from or on behalf of the husband.  The affidavit upon which the wife relies is to inform the court of the progress of the matter. It was filed without a wet signature. Today, the wife confirmed on oath that the contents of that affidavit were true and correct. 

3. The whereabouts of the husband still eludes the wife.  She deposes to having reported him as a missing person in early September 2021 in concert with the husband’s children from an earlier relationship.  Amongst other things, the wife wanted to tell the husband that his mother had passed away and that he had an entitlement under his mother’s will and that the executor of the will was looking to contact the husband.  The wife sets out the orders that she seeks today at paragraph 11 of the affidavit dated 8 December 2021. She seeks:

   (a)That Mr Vurnik be removed and no longer eligible to be director and/or shareholder of F Pty Ltd hence having him removed from ASIC statements and responsibilities.

   (b)That as per previous order I continue having sole control and conduct of the property at G Street, Suburb J. (known as the J Property).

   (c)Unless the respondent makes any claims to the Court for his share of the property, as the Court deems fit, the property is left in my sole control and possession.

   (d)The Court’s assistance with regard to any proceeds and distribution of money’s from the respondent’s late mother’s estate be re-directed to his children (the grandchildren of his late mother).

   (e)Any other orders the Court deems fit.

4. I am satisfied that, as the husband has the affidavit and he has details of what the wife seeks happened at court today.  I have permitted the wife to make an oral application in the terms of paragraphs A to E of the affidavit at paragraph 11. 

5. I have, essentially, granted the relief sought by the wife in subparagraphs 11(a) and 11(b).  I am told that paragraph (c) is directed to finalising this matter some time towards the end of next year.  There is no rush because the property under consideration is being leased until September. The Orders that I have made today will give the wife control of the funds from the rental property. 

6. I have provided that the wife file an amended application in which she specifies the precise order she seeks be made by way of a final alteration of property interests.  It is important that, if the wife has to proceed on an unopposed basis, she seek only the orders of which she has given the husband precise notice.  To do otherwise, will likely result in an adjournment. She will need to get some advice about what orders are necessary to finalise the proceedings, particularly vis a vis the self-managed superannuation fund and then be in a position to justify why orders should be made in those terms.

7. It is certainly not the case that orders sought by the wife will be made simply because they are unopposed.  The court has an independent duty to be satisfied that it is just and equitable to make a final order for alteration of property interests.  Secondly, it must be satisfied that the terms of any order it makes are proper within the meaning of the legislation.  I am assuming that the wife will also seek an order that each party retain what chattels and personal property are currently in their respective possession.

8. In paragraph (d), the wife seeks advice in relation to the entitlement of the respondent husband in the estate of his late mother and how that entitlement might be transferred or assigned to the husband’s children who are the grandchildren of the husband’s mother.  I have informed the wife that my preliminary view is that moving the husband’s entitlement to his children must involve some action taken by them if it can be done at all.  I have not heard anything that indicates that the children have the basis upon which to make an application for alteration of property interests in this court. So, whereas I have permitted the wife to make an application in the terms of paragraph d, I do not make any orders in that regard. 

9. I have informed the wife that it is not appropriate to seek advice from me or from the court personnel.  My role is to quell disputes between the parties and make final orders in relation to any disputes over which I have jurisdiction; it is not to give advice. 

10. In the timetabling of matters, the wife will put the husband on notice of not less than four weeks towards the end of next year of what final orders she seeks be made in these proceedings.  The husband will have 30 days in which to respond.  If he responds and there is a substantive case to his opposition, it is likely that the matter will be set down for a hearing of one or two days and will proceed in 2023.  If the husband fails to attend court or put any documents before the court, it is to be anticipated the proceedings could be concluded by final orders which may, in the exercise of the court’s discretion, include those sought by the wife and without any further input by the husband. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 13 December 2021.

Associate:

Dated:       20 January 2022