ZOLLER & ZOLLER

[2012] FamCA 47

FAMILY COURT OF AUSTRALIA

ZOLLER & ZOLLER [2012] FamCA 47

FAMILY LAW – PRACTICE AND PROCEDURE - Interim hearing – Where the wife is resident in Australia and the husband is a resident of Germany – Where the wife has instituted proceedings for property settlement in Australia – Where the wife has been unable to effect service on the husband – Where email correspondence between the husband and wife indicates the husband is aware of the proceedings in Australia – Where the wife seeks an order pursuant to s 90MU – Where there is a significant possibility that the husband will withdraw a portion of the property of the parties or either of them – Where application heard ex parte – Where there is correspondence from the Trustee of the superannuation fund indicating they have received procedural fairness and do not wish to be heard – Interim order made pursuant to s 90MU.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Ms Zoller

RESPONDENT: Mr Zoller

FILE NUMBER: BRC 10434 of 2011

DATE DELIVERED: 27 January 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 January 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Awyzio of DA Family Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The wife’s Application in a Case filed on 23 January 2012 be heard ex parte.

2. The ordinary requirements of service be dispensed with and the husband be served with the wife’s Application in a Case filed on 23 January 2012, all affidavits in support of the Application in a Case and the submissions on behalf of the wife filed by leave on 27 January 2012, via email to … .

3. The husband have liberty to make an Application to the Court with respect to the Orders made by Justice Murphy today, 27 January 2012 and, if at all possible, any such Application by the husband by listed before Justice Murphy.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Pursuant to s 90MU of the Family Law Act 1975 (Cth) (“the Act”), the Trustee of the husband’s superannuation interest, entitled “C Pension Plan” (“the fund”) held with the “BT Financial Group” is not to make any splittable payment in respect of the interest of the husband without the leave of the Court.

2. The husband shall notify the wife not less than twenty-eight (28) days prior to making an application to the Trustee for any payment out of the husband’s interest in the fund with “BT Financial Group”.

3. Pursuant to s 90MU of the Act, the Trustee of the fund is to notify the husband and wife of the next occasion when a splittable payment becomes payable in respect of the husband’s interest in the fund not less than fourteen (14) days prior to that event.

IT IS NOTED THAT

1. It is anticipated that the husband will be present in Australia on 10 February 2012.

2. An adjournment of the current return date for the wife’s Initiating Application, being 1 February 2012, will be sought so as to enable the husband to appear following his anticipated arrival in Australia on 10 February 2012.

IT IS FURTHER ORDERED THAT

1. Service of the documents set out in paragraph 2 above shall be affected personally upon the husband, as soon as reasonably practicable after his entry into Australia on or after 10 February 2012.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10434 of 2011

Ms Zoller

Applicant

And

Mr Zoller

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an urgent injunction with respect to a superannuation interest which forms part of the property of the parties, or either of them, the subject of an application for settlement of property, pursuant to section 79 of the Family Law Act. 

2. The husband is, I am told, a resident of Germany, but is currently living in the Caribbean.  The material filed in support of the current application reveals that there has been email correspondence between the husband and the wife, and/or her solicitor.

3. I am satisfied that he is aware, in general terms, of the fact that the wife is bringing property proceedings in this country.

4. I am told by Ms Awyzio, who appears for the wife this morning, that the husband is due in Australia on 10 February.  The return date of the application for settlement of property is currently 1 February, and an adjournment will be sought so as to have that heard by a Registrar on 10 February. 

5. The affidavit material deposes to the entitlement sought by the wife in her application.  It is plain, on the material before me, that a substantial proportion of the assets which are in Australia – noting that some, at least, of the property of the parties, is situated outside of Australia – is a superannuation fund called a pension plan with the BT Financial Group. 

6. It is to that fund that the current Application in a Case is directed, specifically a flagging order pursuant to section 90MU of the Family Law Act is sought.

7. The basis of the application, and the reason for it being brought and heard urgently pursuant to rule 5.12 of the Family Law Rules, can be seen referred to in the written outline prepared by Ms Awyzio on behalf of the wife.

8. That outline deals seriatim with the matters to which rule 5.12 refers. Of most concern, given the nature of the application, is that there exists the possibility for a substantial part of the property of the parties, or either of them, to which the wife makes claim, to be withdrawn by the husband in circumstances where the husband, I am told, is a resident of a country other than Australia, spends significant portions of time outside of Australia, and where, for example, at the date of the hearing of this application, is currently in the Caribbean.

9. Exhibit I to an affidavit of the wife, filed 23 January 2012, is a letter received from “[S]” estate and claims management in respect of the superannuation interests (“pension plan”) to which the application refers. 

10. That letter refers specifically to two important matters.  The first is that the trustee of the relevant superannuation fund declares that it has received procedural fairness in respect of the application, and does not intend to be heard in these proceedings.

11. Secondly, and importantly, the management group, on behalf of the trustee, indicates that it will abide an order of the court upon receipt of an original certified copy of any orders made. 

12. It seems to me, within the meaning of the rule, that urgency is made out.  It seems to me that there are good grounds for making the order sought by the wife in the circumstances to which I have briefly made reference in these short ex tempore reasons, and which are deposed to in more detail in the material filed on behalf of the wife.

13. I am satisfied that no undue prejudice is caused to the husband within the meaning of rule 5.12.

14. What I propose to do is avail the husband of the earliest possible opportunity to be heard in respect of the order which I will today make until further order, and to that effect, to order that service occur, given the circumstances to which I’ve just referred, by forwarding the material in and about this application, together with the written submissions on behalf of the wife, to the husband’s email address:  … . 

15. In respect of that email address, the material reveals, as I’ve earlier said, that there have been communications passing between the husband from that email address to both the wife and the wife’s solicitor. 

16. For those short reasons, I propose to make orders effectively in accordance with those set out in the submissions on behalf of the applicant wife.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 27 January 2012.

Associate: 

Date:  9 February 2012