ABNEY & YULE
[2012] FMCAfam 1449
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABNEY & YULE | [2012] FMCAfam 1449 |
| FAMILY LAW – Property – application for property orders. PRACTICE AND PROCEDURE – Where respondent residing in China – where respondent has not filed a response or affidavit – where application heard ex parte. |
| Family Law Act 1975 (Cth), ss.75, 79, 106A Federal Magistrates Court Rules rr.6.14, 13.03C, 16.05 |
| Black & Kellner (1992) 15 Fam LR 343; FLC 92-287 Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; FLC 93-143 Stanford v Stanford [2012] HCA 52 |
| Applicant: | MR ABNEY |
| Respondent: | MS YULE |
| File Number: | SYC 3058 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 December 2012 |
| Date of Last Submission: | 17 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Freedman |
| Solicitors for the Applicant: | Milne Berry Berger Freedman |
| Respondent: | No appearance |
ORDERS
The Applicant Husband and the Respondent Wife are to do all things and sign all documents necessary to transfer the property at Property M, [M] in the State of New South Wales (having Folio Identifier [omitted]) to the Applicant Husband solely.
The Applicant Husband will be responsible for payment of the joint credit card debts and shall indemnify the Respondent Wife in relation to those debts.
Except as otherwise provided for herein each party is declared to be the sole owner in law and equity of all property in the parties’ possession, custody and control including but not limited to bank accounts, investment accounts, superannuation, household contents, shares, employee entitlements, goods and chattels, motor vehicles, engagement and wedding rings.
Except as otherwise provided for herein all debts and liabilities in the name of or owing by either of the parties at the date of these Orders shall remain the sole liability of the party in whose name the debt is incurred and recorded and the other party shall not be obliged to make any contribution and each party shall indemnify the other party in respect thereof.
Pursuant to Section 106A of the Family Law Act 1975 a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia shall have the power to execute any document or instrument to give effect to these Orders in the event of default by either party.
The Applicant’s solicitor is to advise the Respondent of the making of these Orders within seven (7) days.
IT IS NOTED that publication of this judgment under the pseudonym Abney & Yule is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3058 of 2012
| MR ABNEY |
Applicant
And
| MS YULE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for property orders brought by the Husband. The Wife has not attended Court and it appears that she has returned to China to reside there permanently. She has not filed a Response, an affidavit or a Financial Statement. She has not played any part in the proceedings at all.
Orders Sought
The Applicant seeks orders that:
a)the parties are to transfer to his name the title to a home unit at [M], where the Applicant currently resides;
b)the Applicant is to be responsible of the parties’ joint credit card debts;
c)the parties are to retain all items of personal property currently in their possession, custody and control;
d)the parties are to be solely responsible for all debts and liabilities currently in their own name;
e)a Registrar or Deputy Registrar will be given power to execute any document in the name of a party who neglects or fails a document when ordered to, under the provisions of s.106 of the Family Law Act 1975; and
f)the Respondent is to pay the Applicant’s costs.
Background
The relevant facts come from the Application and the Applicant’s affidavit of 4th September 2012.
The parties commenced to live together in May 2006. They were married on [date omitted] 2006. They separated in May 2007.
The parties were divorced by order of this Court on 20th September 2012. The divorce Order became effective one month later.
The Applicant commenced these proceedings by filing an Application, a Financial Statement and affidavit in support on 4th September 2012. The Application was returnable of 22nd October 2012.
There was no appearance by or on behalf of the Respondent on the return date. The Applicant’s solicitor, Ms Doueihy, handed up an affidavit in which she deposed that she had telephoned a solicitor who had previously acted for the Respondent, Mr Southwell-Keely, who advised her that he was no longer formally instructed. He told her that the Respondent was no longer in Australia, but in China, and he communicated with her by email.
Ms Doueihy deposed that she had written to the Respondent at the email address that Mr Southwell-Keely confirmed was that of the Respondent, but she did not receive a reply on either occasion. Ms Doueihy also deposed that neither email had been returned. The Application was adjourned to 19th November 2012.
On 19th November 2012, the Applicant brought an Application in a Case seeking to dispense with the requirement for personal service of the Application and supporting documents, as provided by Rule 6.14. An Order was made that service could be effected by sending the documents to the Respondent at her email address.
On 4th December 2012, Ms Doueihy appeared for the Applicant and tendered her affidavit of 30th November 2012, in which she set out her compliance with the Court’s directions for substituted service. She deposed that there had been no response from the Respondent. The Application was listed for an undefended hearing on 17th December 2012.
At the hearing on 17th December 2012, Mr Freedman, solicitor, appeared for and with the Applicant. He relied on:
a)An Amended Application filed on 15th November 2012;
b)The Applicant’s affidavit of 4th September 2012;
c)The Applicant’s Financial Statement filed on 4th September 2012; and
d)A printout of a letter forwarded by email from Ms Doueihy to the Respondent on 13th December 2012, setting out the amended orders which were being sought by the Applicant.
There was no appearance by or on behalf of the Respondent, nor was there any message received from her or from anyone on her behalf, indicating that she wished to be heard or play any part in the proceeding.
The Applicant’s solicitor sought that, in the absence of the Respondent, the Court should proceed with the hearing generally, as provided by Rule 13.03C. This request was granted.
The Applicant gave oral evidence. He confirmed that he was residing in the home unit that was the real estate about which orders were sought in the Application.
The Relevant Law
When a Court is dealing with an application for property orders under the provisions of s.79, the Court must follow the preferred approach set out by the Full court of the Family Court in Hickey & Hickey[1]. The Court must take a four-stage process.
[1] [2003] FamCA 395; (2003) 30 Fam LR 355; FLC 93-143
The first stage is to make findings as to the identity and values of the parties’ property, liabilities and financial resources as at the date of the hearing.
Second, the Court identifies and assesses the parties’ contributions within the meaning of paragraphs (a), (b) and (c) of subsection 79(4) and determines the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties.
Third, the Court should identify and assess the relevant matters referred to in paragraphs (d), (e), (f) and (g) of subsection 79(4). This includes the matters set out in paragraph (e), being “the matters referred to in subsection 75(2) so far as they are relevant”.
Fourth, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case, as set out in subsection 79(2) of the Act.
The consideration required of the Court in s.79(2) has been the subject of recent comment by the High Court in Stanford v Stanford[2], where the majority held that:
…the requirements (of s.79(2) and s.79(4) are not to be conflated. In every case in which a property settlement under section 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
[2] {2012] HCA 52
As was pointed out in Hickey, at [40], section 79 requires the court to consider the whole of the property, notwithstanding that the parties may only seek an alteration of interest in some of that property:
As a consequence of the first step in the preferred approach to the determination of the s 79 proceedings, each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto: Oriolo v Oriolo (1985) 10 Fam LR 65; (1985) FLC 91-653; In the Marriage of Black & Kellner (1992) 15 Fam LR 343; (1992) FLC 92-287…[3]
[3] (2003) 30 Fam LR 355 at 370 [40]
The Parties’ Property, Liabilities and Financial Resources
The evidence as to the pool of assets and liabilities, as with all the evidence, comes entirely from the Applicant, as the Respondent has made no financial disclosure at all. She has not filed any documents in this proceeding.
Subject to that significant limitation, I find the non-superannuation asset pool to be:
a)Property [M] $590,000.00
b)Applicant’s NAB bank account 48.00
c)Household contents 2,000.00
Total non-superannuation assets $592,048.00
The liabilities set out in the Applicant’s Financial Statement are:
a)Mortgage over [M] property $429,570.00
b)ANZ Visa card debt $7,259.84
c)CBA MasterCard debt $7,669.89
d)CBA Visa card debt $2,282.47
Total liabilities $446,782.20
The net value of the non-superannuation asset pool stands at $145,658.00.
The only information about superannuation comes from the Applicant. He states in his Financial Statement that he has an interest in [omitted] Super amounting to $3,952.58.
I find the total value of superannuation to be $3,952.58.
The net total, combining the net non-superannuation asset pool and the value of the superannuation amounts to $149,218.38.
The Parties’ Contributions
The only evidence about the parties’ contributions to the net asset pool comes from the evidence of the Applicant. He deposed in his affidavit of 4 September 2012 that he met the Respondent in February 2006 and they moved in together in about May 2006. They were married on [date omitted] 2006 and separated six months later.
They purchased the property at [M] in April 2007 for a contract price of $480,000.00. The Applicant deposed that after the cooling off period for the contract, the respondent “left the country and the marriage”.[4]
[4] Affidavit of Mr Abney 4.9.2012 at paragraph {6]
The Respondent returned to Australia in May 2012. The Applicant deposed that she tried to return to the property without his knowledge or consent. He did not allow her access and the police were called to remove her from the premises.
The Applicant deposes that at the commencement of the relationship he owned a motor car worth approximately $10,000.00, but it was stolen in or about November 2010. The Respondent had a motor vehicle worth about $20,000.00, which she left in his possession when she left Australia in May 2007. In May 2012, after her return to Australia, she took the vehicle back. Annexed to the Applicant’s affidavit is a printout of an email from the Respondent’s then solicitor, Mr Southwell-Keely, addressed to the Applicant, saying:
We are acting for Ms Yule and have been instructed to advise you that she has recovered possession of her company’s motor vehicle being a [details of vehicle omitted].[5]
[5] Ibid Annexure “B”
The Applicant deposed that the parties had only basic furniture of no great value at the commencement of the relationship. The parties purchased the property for $480,000.00, paying a deposit of $24,000.00. The deposit was made up as to $7,000.00 from each of the parties and $10,000.00 from the Respondent’s brother.
The balance of purchase money came from a mortgage over the property, of which the Applicant deposes he has made every payment. His repayments are now about $902.00 per week. The Respondent made no contributions to the mortgage payments.
In addition, the Applicant deposes that:
There is also $30,000.00 in credit card expenses which were incurred to fund the wedding. I have been repaying the credit card and the balance owing is $17,212.00. No contributions have been made by Ms Yule.[6]
[6] Affidavit of Mr Abney 4.9.2012 at [19]
In my view, noting the short duration of the marriage, and the relatively small contribution made by or on behalf of the Respondent, being $7,000.00 from her own funds and $10,000.00 from her brother, the Applicant’s contribution would amount to over 95%, taking into account the repayments the Applicant has made since October 2006.
Other factors taken into account under Subsection 79(4) (d) to (g)
The matters to be considered here involve what are usually referred to as the subsection 75(2) factors.
The information available is fairly sparse. The Applicant was born [in] 1968. He deposes that he is in good health and is in full-time employment.
The Respondent was born [in] 1968. The Applicant deposes that he is not aware of the Respondent’s employment situation except that she had a company called [C] Pty Limited. An ASIC search of the company forms Annexure “E” to the Applicant’s affidavit shows the Respondent to be the sole director and secretary of the company. She is the owner of both of the two ordinary shares issued.
There were no children of the marriage.
There are no factors that call for an adjustment under s.75(2) of the Act.
Just and Equitable
Subsection 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
This matter should be considered in the context of a short marriage where, after the parties committed them selves to purchasing the property in [M] which forms the major part of the net asset pool, the Respondent walked out of the marriage and returned to China, leaving the Applicant to foot the bill for all the mortgage payments and the amount owing for the wedding expenses.
The Respondent appears to have abandoned the marriage. What prompted her return in May 2012 and attempt to gain entrance to the home, over five years after she left, is unknown.
I am satisfied that the Respondent has been made aware of the proceedings in this Court and has no steps at all either to disclose any of her financial position or to participate in these proceedings. She was not without legal advice in Australia, as she had instructed Mr Southwell-Keely to act for her at the time when she took possession of the car she had left five years earlier. There is evidence from the affidavit of Ms Doueihy that Mr Southwell-Keely had communicated with the Respondent by email.
Where a party fails to make full and substantive disclosure of their financial affairs, he or she cannot rely on an absence of evidence to prevent the making of orders (see Black & Kellner[7]).
[7] supra
In my view, the absence of any financial disclosure by the Respondent and her failure to participate in these proceedings justifies making the orders sought by the Applicant. The Respondent’s interest in the [M] property will be transferred to the Applicant on his accepting responsibility for repayment of the joint credit card debts standing at $17,212.00 and indemnifying the Respondent accordingly.
These Orders have been made in the absence of the Respondent. Should she wish to apply to vary or set aside all or any of the Orders made, the Respondent will need to make application to the Court under the provisions of Rule 16.05 of the Federal Magistrates Court Rules 2001.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 10 January 2013
0