Aboud and Aboud & Anor

[2018] FamCA 211

FAMILY COURT OF AUSTRALIA

ABOUD & ABOUD AND ANOR [2018] FamCA 211

FAMILY LAW – PROPERTY – wife’s application for receipt of surplus proceeds of sale of real property registered in the husband’s name in context of Supreme Court proceeding – terms of settlement between second respondent mortgagee and wife for possession and sale of property in default of mortgage – first respondent husband’s current whereabouts unknown – substituted service on husband – leave to proceed undefended – order for the  wife to be solely entitled to the surplus proceeds of sale of real property unopposed by the mortgagee.

FAMILY LAW – PRACTICE AND PROCEDURE – Procedural fairness – where the wife seeks to proceed on an undefended basis – where the first and second respondent did not appear at the hearing – where the first respondent failed to take any step in the proceedings – where procedural fairness provided to the first respondent – where no proposals are made by the first respondent – where the second respondent mortgagee of real property registered in the husband’s name did not appear but did not oppose the orders sought by the applicant wife – leave granted to conduct hearing on undefended basis.

Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth)

APPLICANT: Ms Aboud

FIRST RESPONDENT: Mr Aboud

SECOND RESPONDENT: B Pty Ltd

FILE NUMBER: MLC 9898 of 2017

DATE DELIVERED: 29 March 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 9 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Whittaker (Solicitor)
SOLICITOR FOR THE APPLICANT:	Women’s Legal Service Victoria

SOLICITOR FOR THE FIRST 

RESPONDENT:

No Appearance

SOLICITOR FOR THE SECOND RESPONDENT: No Appearance

Orders

1. That leave is granted for the Applicant Wife to proceed with her application for final property orders on an undefended basis.

2. That the Wife be solely entitled to any surplus proceeds from the sale of the real property at C Street, Suburb D [Certificate of Title Volume … Folio …], and the Second Respondent forward any such funds it holds to the Wife in lieu of the Husband.

3. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   (a)The Wife and the Husband be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of the Wife or the Husband as at the date of these orders (the furniture, personal possession and like chattels in the real property being deemed to the possession of the Wife.).

   (b)The Wife and the Husband forego any claims they may have to any superannuation benefits belonging to or earned by the other.

   (c)Insurance policies remain the sole property of the owner named therein.

   (d)The Wife and the Husband be solely liable for and indemnify the other against any liability encumbering any item of property to which the Wife or the Husband is entitled pursuant to these orders.

   (e)The Wife and the Husband be solely liable for and indemnify the other against any liability in their sole names or joint names with other parties, including but not limited to personal loans, credit card debts and any tax liabilities.

   (f)Any joint tenancy of the Wife and the Husband in any real or personal estate is hereby expressly severed.

4. That liberty be reserved to the husband to apply to vary or set aside these orders upon application to be filed and served within 30 days hereof, any such application to be supported by an affidavit in support thereof setting out the basis for such application and explain his non-appearance this day.

5. That the solicitors for the Applicant Wife cause a sealed copy of these orders to be served on the Respondent Husband by registered mail care of his parents Ms E and Mr E at F Street, Suburb G with fourteen (14) days.

NOTATION

1. Paragraph 1 of the orders herein is referrable to the Terms of Settlement entered into by the Wife and the Second Respondent in relation to Supreme Court proceedings and signed by the Wife on 15 November 2017 and the Second Respondent on 16 November 2017.

2. The Second Respondent is not in attendance but consents to orders being made in so far as they affect the Second Respondent.

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 Aboud & Aboud and Anor 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 9898  of 2017

Ms Aboud

Applicant

And

Mr Aboud

First Respondent

And

B Pty Ltd
Second Respondent

REASONS FOR JUDGMENT

1. The applicant wife brings an application for final property settlement under s79 of the Family Law Act 1975 (Cth) in circumstances where the first respondent husband’s whereabouts are unknown.

2. When the matter came before me in the Judicial Duty List, there was no appearance by the first respondent husband or the second respondent, who is the mortgagee of the former matrimonial home.  No documents have been filed in this matter by either the first or second respondent.

3. The second respondent wrote that they did not have any objection to orders being made in the terms provided to the Court by way of the wife’s proposed minute, which their solicitors had amended.  (Exhibit B - an email dated 22 December 2017 tendered on 9 January 2018).

4. The parties’ former matrimonial home is registered in the name of the husband. There is a mortgage on that property which is in the name of the husband.  The loan agreement between the husband and the second respondent is dated 29 June 2009 and was for the sum of $193,600. 

5. The mortgagee issued a writ for possession of the land due to the mortgage loan being in default.  The writ was issued on 17 March 2017 in the Supreme Court of Victoria.  The writ seeks payment of $192,992.09 together with interest at the rate of $65.07 per day from 18 March 2017 to the date of judgment or payment.  The husband has not responded to the writ and there was no evidence that this was ever served on the husband.  

6. Throughout the relationship and post separation, the wife has not had access to the details of the mortgage but has made mortgage payments by paying funds into the husband’s bank account which was accessed and debited by the mortgagee since separation.

7. The wife entered into terms of settlement with the mortgagee which were signed on 15 and 16 November 2017. The terms of settlement agreed between the wife and the second respondent for the repossession of the property in Suburb D provided for the wife to vacate the Suburb D property by 15 January 2018.[1]  At the date of the hearing, the wife and the three youngest children of the marriage had vacated the property so that it could be cleaned and were living in temporary accommodation.  At the time of the hearing the wife and children were effectively homeless and without any financial support from the husband.

   [1]Case outline of Applicant Wife filed by leave 9 January 2018.

8. Upon being satisfied that the applicant had complied with the orders of Johns J for substituted service upon the husband and both the husband and the first respondent having been given an opportunity to file and serve any response and to attend Court, I determined that it was appropriate to grant leave to the wife to proceed on an undefended basis and in accordance with her proposals which were not opposed by the second respondent.  

9. I reserved my written reasons for judgment and these are my reasons for making the final orders on 9 January 2018 in the Judicial Duties List.

THE APPLICATION

1. In her Case Outline filed by leave on 9 January 2018,  the wife did not press all of the orders that she sought in her Amended Initiating Application filed 3 November 2017, but sought the following orders :

   1.The Wife be solely entitled to any surplus proceeds from the sale of the real property at [C Street, Suburb D] [Certificate of Title Volume … Folio …], and the Second Respondent forward any such funds it holds to the Wife in lieu of the Husband.

   …..

   4.That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   a.The Wife and the Husband be solely entitled to the exclusion of the other to all property (including the choses in action) in the possession of the Wife or the Husband as at the date of these orders (the furniture, personal possession and like chattels in the real property being deemed to the possession of the Wife).

   b.The Wife and Husband forego any claims they may have to any superannuation benefits belonging to or earned by the other.

   c.Insurance policies remain the sole property of the owner named therein.

   d.The Wife and the Husband be solely liable for and indemnify the other against any liability encumbering any item of property to which the Wife or the Husband is entitled pursuant to these orders.

   e.The wife and the Husband be solely liable for and indemnify the other against any liability encumbering any item of property to which the Wife or the Husband is entitled pursuant to these orders.

   f.The Wife and the Husband be solely liable for and indemnify the other against any liability in their sole names or joint names with other parties, including but not limited to personal loans, credit card debts and any tax liabilities.

   g.Any joint tenancy of the Wife and the Husband in any real or personal estate is hereby expressly severed.

Background

1. I am satisfied of the following background facts on the balance of probabilities which were adduced in evidence before me by the applicant unchallenged.

2. Both parties were born in Africa and the husband is aged 51 and the wife is aged 38. The parties were married in Africa in 1996 and lived together in Australia from December 2002 until their separation in May 2013. There are seven children of the marriage, three of whom currently reside in Africa with the maternal grandmother.  The wife currently lives in Melbourne and is the primary carer of the three youngest children aged eleven, nine and eight. The husband has made no contribution to the support of the wife or children since separation.

3. The husband first travelled to Australia in June 1997.[2] The husband returned to Africa in December 1997 and the first child was born in Africa in 1998.  The husband returned to Australia in November 1998. A second child of the parties was born in 2001. The wife and two children arrived in Australia in December 2002 and the parties rented a property in Suburb D.

   [2] Affidavit of Applicant Wife filed 25 September 2017, par 16.

4. The third, fourth, fifth and sixth children were born between 2003 and 2007.  In 2008, the wife inherited approximately $26,000 from her father. In April 2009, the husband arranged finance from the second respondent and purchased a property at C Street, Suburb D (“the Suburb D property”) for approximately $242,000. The parties moved into the Suburb D property.

5. The husband is registered on the title as the sole proprietor of the Suburb D property and the second respondent is the mortgagee.  The wife deposed that the amount of $193,600 was borrowed from the second respondent by way of a mortgage. 

6. The husband travelled to Africa in March 2013 and returned to Australia in April 2013 and continued to reside with the wife and children in the Suburb D property. The parties separated in May 2013 and the husband moved into his parent’s house in Suburb G.

7. In December 2013, the wife was advised by the second respondent that the mortgage payments on the Suburb D property were in arrears.  The wife borrowed funds which she deposited into the husband’s account to cover the mortgage arrears and continued to deposit money into the husband’s account to cover monthly mortgage payments.

8. In June 2015, the husband’s mother informed the wife that the husband had moved to Africa.  The wife’s unchallenged evidence was that she has had no contact with the husband since then.

9. On 25 July 2017, the Supreme Court Writ of Possession in relation to the Suburb D property was served on the wife by the second respondent, B Pty Ltd.  The husband is named as first respondent in those proceedings and the wife as second respondent.

10. The Supreme Court proceedings were set down for directions on 2 October 2017, and on 25 September 2017 the wife issued her Initiating Application in this Court. The Supreme Court proceedings were then adjourned to 17 November 2017.

11. The matter first came before Johns J in the Judicial Duty List on 8 November 2017. Orders were made for substituted service on the husband by way of the wife posting a sealed copy of the Orders made 8 November 2017, the wife’s Amended Initiating Application filed 3 November 2017 and the Affidavit of Elisa Mary Whittaker dated 2 November 2017,[3] to the husband care of the husband’s parents who reside in Australia. The husband was ordered to file his Response, Financial Statement and supporting affidavit material along with providing full and frank disclosure within 28 days of service being effected and should he not do so, the wife have leave to apply to proceed on an undefended basis.

    [3] Affidavit of service dated 5 December 2017

12. The husband was further ordered to personally appear on the next occasion when the matter came before the Court on 11 December 2017. 

13. On 15 November 2017, the Terms of Settlement in relation to the Supreme Court Writ of Possession were signed by the wife, with the wife agreeing to vacate the Suburb D property by 4pm on 15 January 2018 and that the property would be sold by the second respondent.  The husband did not participate in those proceedings.  The wife and the mortgagee advised the Supreme Court that they had reached an agreement and the proceedings in the Supreme Court were adjourned to 2 February 2018.

14. The matter came before Johns J on 11 December 2017, on which date the husband again failed to attend and the applicant’s Amended Initiating Application filed 3 November 2017 was adjourned to the Judicial Duty List on 8 January 2018.  Johns J made further orders that the husband  personally attend on 8 January 2018 and that failing his appearance, the applicant have leave to seek to proceed with her application for final property orders on an undefended basis.  Johns J further ordered that a copy of the orders made on 11 December 2017 be served upon the husband by registered mail care of his parents, and upon the second respondent at its address of service.

15. When the matter came before me in the Judicial Duty List on 9 January 2018, there was no appearance by either the husband or the second respondent and the wife had complied with the orders of Johns J.

16. I note that no documents have been filed in this matter by either the first respondent husband or the second respondent.

Evidence

1. The documents relied upon by the applicant are listed in her Outline of Case dated 9 January 2018 and are as follows:

   ·Financial Statement sworn 21 September 2017 and filed 25 September 2017;

   ·Affidavit of Ms Aboud sworn 21 September 2017 and filed 25 September 2017;

   ·Affidavit of Ms Whittaker affirmed 2 November 2017 and filed 3 November 2017;

   ·Affidavit of Service of Ms J affirmed 21 September 2017;

   ·Affidavit of Service of Ms J affirmed 4 December 2017 and filed 5 December 2017;

   ·Affidavit of Service of Ms J affirmed 21 December 2017 and filed 22 December 2017;

   ·Affidavit of Service of Ms J affirmed 21 December 2017 and filed 22 December 2017

2. The applicant further relied upon:

   ·Amended Initiating Application filed 3 November 2017

   ·Affidavit of the applicant filed 25 September 2017;

   ·Exhibits A, B, C and D were tendered during the hearing on 9 January 2018.  Exhibit A was a letter from the solicitor for the applicant to the husband’s parents enclosing the Court order made 11 December 2017 by way of service.  Exhibit B was correspondence from the solicitors for the second respondent to the applicant’s solicitors attaching a minute of proposed orders for the hearing on 9 January 2018.  Exhibit C was a document of terms of settlement between the applicant and the second respondent signed 15 and 16 November 2017 for the Supreme Court proceedings.

Procedural fairness

1. The wife’s Initiating Application filed 25 September 2017, Financial Statement filed 25 September 2017 and her affidavit sworn on 21 September 2017 were served along with the Amended Initiating Application filed 3 November 2017, the affidavit of Ms Whittaker affirmed on 2 November 2017 and the orders made on 8 November 2017 by way of substituted service on the husband’s family in Australia on 16 November 2017 as per the orders made by Justice Johns on 8 November 2017.[4]

   [4] Affidavit of Service filed 5 December 2017.

2. The wife’s Initiating Application filed 25 September 2017, Financial Statement filed 25 September 2017 and her affidavit sworn 21 September 2017 were served by post on the second respondent’s solicitors on 8 October 2017. 

3. The wife’s Amended Initiating Application filed 3 November 2017 and the affidavit of Ms Whittaker affirmed on 2 November 2017 were further served along with the orders made on 8 November 2017 and 11 December 2017 upon the second respondent’s solicitors.

   The second respondent has not filed any material, but the solicitors for the second respondent have engaged in correspondence with the solicitors for the Applicant as outlined in Exhibit B dated 9 January 2018.  This exhibit outlines electronic correspondence between the applicant and the second respondent   regarding the proposed orders sought by the applicant, and an agreement between the applicant and the second respondent as to which orders would be sought on the day of hearing.  The applicant and second respondent agreed on orders to be made in the following terms:

   (1)The wife be solely entitled to any surplus proceeds from the sale of the real property at C Street, Suburb D [Certificate of Title Volume … Folio …], and the Second Respondent forward any such funds it holds to the Wife in lieu of the Husband.

   (2)The Wife be solely entitled to the balance of funds held in the Commonwealth Bank of Australia Account Number …97, BSB Number … in the name of the Husband.

   (3)Pursuant to section 106A of the Family Law Act, a Registrar of the Court be authorised to execute, in the name of the Husband, all deeds or instruments required to be executed by the Husband to effect the transfer, referred to in paragraph 2.

   (4)That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   (a)The Wife and Husband be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of the Wife or the Husband as at the date of these orders (the furniture, personal possession and like chattels in the real property being deemed to the possession of the Wife).

   (b)The Wife and the Husband forego any claims they may have to any superannuation benefits belonging to or earned by the other.

   (c)Insurance policies remain the sole property of the owner named therein.

   (d)The Wife and the Husband be solely liable for and indemnify the other against any liability encumbering any item of property to which the Wife or the Husband is entitled pursuant to these orders.

   (e)The Wife and the Husband be solely liable for and indemnify the other against any liability in their sole names or joint names with other parties, including but not limited to personal loans, credit card debts and any tax liabilities.

   (f)Any joint tenancy of the Wife and the Husband in any real or personal estate is hereby expressly severed.

Standard and onus of proof

1. When determining what final orders the Court should make, the relevant standard of proof is the balance of probabilities.  Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:

   (a)the nature of the cause of action or defence; and

   (b)the nature of the subject matter of the proceeding; and

   (c)the gravity of the matters alleged.[5]

[5] Evidence Act 1995 (Cth), s 140.

Evidence of the wife

1. The evidence of the applicant wife is unchallenged and I accept her evidence in the following terms.  She deposed to having married the first respondent husband in 1996 in Africa. 

2. The applicant deposed to the husband moving back to Australia around June 1997 and sending her USD$200 every fortnight to buy food and pay bills.[6]  The wife deposed that the husband came back to Africa around December 1997 and helped her during her pregnancy with their first daughter K who was born in 1998.  The wife deposed to the husband returning to Australia in November 1998 and continuing to send her money for daily expenses and rent.

   [6] Affidavit of Applicant Wife filed 25 September 2017, par 17.

3. The wife deposed to having moved to Australia in December 2002 with the two children of the marriage K and L.  She deposed to living in a rented property in Suburb D with the husband who worked four days a week and who helped her set up a bank account in her own name. 

4. The wife deposed to the husband receiving his wage into his bank account, and receiving Centrelink family benefit payments into her account.  The applicant deposed that during that period she would ask the husband when she needed extra money to buy food or clothes for the children, and he would give her funds as needed along with making all payments of rent for the house. The wife deposed that she paid the utility bills and was the primary carer for the two children, having responsibility for homemaking duties including cooking, cleaning, washing clothes, grocery shopping and day to day tasks.

5. The wife deposed to receiving an inheritance of around $26,000 when her father died in 2008, which occurred after the birth of the parties’ sixth daughter M.  The wife deposed to attending a mortgage broker to arrange finance to purchase the Suburb D property. The wife deposed that she did not understand the process of purchasing a house in Australia. The applicant deposed to purchasing the Suburb D property in May 2009 for approximately $242,000 and discovering that the property was registered in the husband’s  sole name.

6. The wife deposed that in or around March 2013, the husband went to Africa.  She  deposed that he returned to Australia and to the Suburb D house in April 2013, and final separation occurred in May 2013 when he moved out of the Suburb D property.

7. The wife deposed that in December 2013, a letter from N Finance addressed to the husband was hand delivered to the Suburb D property which stated that the mortgage for the property had not been paid.  The wife deposed that she called N Finance on speaker phone with the help of her daughter K who interpreted for her and she was informed that the mortgage payments were in arrears.  The wife deposed that she asked for further information about the mortgage and whether the husband was paying. However as the mortgage was in the sole name of the husband she was not provided with any further information.

8. The wife deposed that N Finance informed her that all mortgage payments had to be paid from the husband’s account as her name was not on the mortgage.[7]

   [7] Affidavit of Applicant Wife filed 25 September 2017, par 50.

9. The wife deposed that the property was not sold, and as she did not receive another letter from N Finance she assumed that the husband had paid the mortgage.

10. The wife deposed to contacting N Finance in or around May 2014 and being informed that the mortgage had not been paid since December 2013.

11. The wife deposed that in May 2014, she borrowed money from a friend Ms O to pay the outstanding mortgage amount.[8]  The wife deposed that she went to the Commonwealth Bank and deposited approximately $6,800 cash into the husband’s account.

    [8] Affidavit of Applicant Wife filed 25 September 2017, par 53.

12. The wife deposed that in May 2015, a representative from N Finance attended the Suburb D property and delivered a letter which stated that the mortgage had not been paid for two months, and that the wife and children had 10 days to vacate the property.

13. The wife deposed that she contacted N Finance who advised her that the mortgage had not been paid for around two months. The wife informed the representative that the husband was not in Australia and that she lived in the property with the children. The wife deposed that the representative agreed to discuss the mortgage with her, and advised her that there was $3,200 outstanding on the mortgage.  The wife deposed that she paid this amount shortly afterwards into the husband’s bank account, but when N Finance attempted to deduct the amount from the account to pay the mortgage the payment was dishonoured. The wife deposed that she did not know why this occurred or what happened to the money deposited, however she again deposited $3,200 into the husband’s account for the mortgage payment which “went through.”[9]

    [9] Affidavit of Applicant Wife filed 25 September 2017, par 58.

14. The wife deposed that she borrowed the funds for these two payments totalling $6,400 from a friend, Ms O, to whom she still owes approximately $4,000.

15. The wife deposed that she then made monthly mortgage payments of $1,360 into the husband’s Commonwealth Bank Account.

16. The wife deposed that in April 2015 she had been struggling to look after the seven children alone, so the three middle children of the marriage moved to Africa to live with the maternal grandmother. The wife deposed to having received no support from the husband.

17. The wife deposed that in May 2015, she had heard from friends and family that the husband had moved to Africa.  The wife deposed that In June 2015 she was informed by the husband’s mother that he had left Australia and moved to Africa.[10]

    [10] Affidavit of Applicant Wife filed 25 September 2017, par 47.

18. The wife deposed that she continues to be the primary carer and homemaker for the three younger children of the marriage and that she is assisted by her eldest daughter who is 19 years old.  The wife deposed that she does not receive child support payments from the husband.[11]

    [11] Affidavit of Applicant Wife filed 25 September 2017, par 62.

19. The wife deposed that she has struggled to find a job since moving to Australia as she does not speak English and has no formal qualifications. She deposed that she cannot work full time as she is the primary carer for her three younger children.  She deposed that during 2016, she worked part time in Suburb D however stopped working after six months as she found it difficult to balance caring for the children and working.

20. The wife deposed that approximately $193,000 is now due under the mortgage, plus additional costs of the Supreme Court action.[12] There is no admissible evidence on the wife’s material as to the value of the property.

    [12] Affidavit of Applicant Wife filed 25 September 2017, par 67

21. In her affidavit, the applicant deposed that she has seen an internet estimate of the value of the property through a website called “On the House” which has placed the property at $420,000.[13]  Unsurprisingly there was no valuation evidence adduced by the applicant given the imminent sale of the property and her impecunious financial circumstances.

    [13] Affidavit of Applicant Wife filed 25 September 2017, para 67.

22. The wife deposed that she has continued to contribute mortgage payments to the husband’s Commonwealth Bank account since the second respondent issued the Writ in the Supreme Court and has been informed by the mortgagee that the payments have been deducted from the account.

23. Neither the husband nor the second respondent filed any material.  During the course of the proceedings there was no appearance at Court by either the husband or the second respondent at any stage. 

24. Exhibit A2 from the hearing before Johns J on 8 November 2017 is a copy of correspondence between the solicitors for the applicant and the solicitors for the second respondent dated 30 October 2017 wherein the second respondent’s solicitor indicates that he does not intend to appear at the hearing on 8 November 2017 and awaits further correspondence in relation to the proposed orders between the parties. The exhibit also refers to previous correspondence on 25 October 2017.  It is clear that the second respondents were aware of the proceedings and had some involvement in discussion with the applicant via email.

Legal Principles

1. Section 79 of the Act provides for the discretionary alteration of property interests between the parties to a marriage. Under s 79(2) of the Act, an order cannot be made unless it is just and equitable in all the circumstances.

2. The relevant factors under s 79(4) of the Act which must be taken into account in considering what order (if any) should be made are as follows:

   a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   d)the effect of any proposed order upon the earning capacity of either party to the marriage; and

   e)the matters referred to in subsection 75(2) so far as they are relevant; and

   f)any other order made under this Act affecting a party to the marriage; and

   g) any child support under the Child Support (Assessment) Act 1989 that a party to a marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

3. In Bevan & Bevan (2013) FLC 93-545 (“Bevan”) at 87,232, the Full Court of this Court considered s 79 of the Act and set out the three fundamental propositions in relation to this section which the High Court of Australia laid down in Stanford & Stanford (2012) 247 CLR 108 (“Stanford”).  These are as follows (original emphasis):

   (1)Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);

   (2)The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;

   (3)A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.

4. In applying those principles, the parties’ legal and equitable interests in property must first be identified.

5. The only property of the parties which can be identified is the surplus of the proceeds of sale after the mortgage is paid on the Suburb D property. 

6. The wife has a liability of $4,000 for the loan to Ms O.

7. The wife deposed to the Supreme Court action and the writ which details the amount borrowed owing under the mortgage in paragraph 5 of her affidavit.  In paragraph 35 the wife deposed “The Supreme Court Writ states that the amount of $193,600 was borrowed from N Finance (B Pty Ltd).”

8. The wife deposed in paragraph 67 of her affidavit that approximately $193,000 is now due under the mortgage, plus additional costs of the Supreme Court action.  Annexed to the wife’s affidavit is the writ issued in the Supreme Court which states at paragraph 5 of the statement of claim attached:

   On or about 20 August 2009, the plaintiff advanced the sum of $193,600.00 to the first defendant.  [14]

   [14] Affidavit of Applicant Wife filed 25 September 2017

9. Further, at paragraph 18 of the statement of claim:

   …Particulars of monies secured

   Amount secured by mortgage as at 17 March 2017 - $192,992.09.

   19.  INTEREST continues to accrue hereafter at the daily rate of $65.07

10. Under the Assets and Liabilities table in her case outline, the wife notes:

    **The wife is not a party to the mortgage or loan contract in relation to the property, and is accordingly not privy to the financial details.

11. There is some difficulty in identifying the exact amount of the surplus funds which will be available after the sale of the Suburb D property.  The affidavit material of the wife does not directly refer to the figure of $227,000 as estimated in the wife’s Case Outline.  The wife’s affidavit only refers to the total amount owing supported by the evidence of the writ. 

12. Doing the best I can on the limited unchallenged evidence and depending on the sale price achieved for the Suburb D property, it would appear that the surplus after the sale may be approximately $230,000 but the costs have not been identified.

13. There are a number of factors to be taken into account under s 75(2) of the Act when considering what, if any, order should be made under s 79. These factors are considered later in these reasons.

Is it just and equitable to make an order?

1. The application proceeded on an undefended basis and there is no evidence from the husband or the second respondent.

2. Without an order being made under s 79 of the Act the wife would have no access to the balance of the proceeds of sale of the Suburb D property. The wife has made financial contributions to the purchase of that property.

3. Without an order being made under s 79 of the Act the wife would be left to shoulder the burden of the full time care of the children with no assistance from the husband. Post separation the wife has supported the children without any assistance form the husband. She has no capital and on the previous history since separation in May 2013 cannot expect to receive any financial assistance from the father of the children. For these reasons it is just and equitable to make an order.

Contributions

1. The wife deposed essentially that she does not know what assets the husband owned at the time of their marriage.[15]  There is no evidence of the husband or wife having any assets at the beginning of the marriage.

   [15] Affidavit of Applicant Wife filed 25 September 2017, par 74.

2. I accept the unchallenged evidence of the wife that she contributed approximately $38,000 to the deposit on the Suburb D house purchased in May 2009 from the inheritance she received from her father and the sale of gold jewellery.[16]  I accept her unchallenged evidence that the husband contributed around $2,000 and made an application for the First Home Buyer’s Grant for the balance of the deposit and costs.

   [16] Affidavit of Applicant Wife filed 25 September 2017, par 36.

3. I accept the unchallenged evidence of the wife that the husband paid the monthly mortgage payments for the Suburb D property from his bank account until separation in May 2013.[17]  I also accept her evidence that the husband supported the family financially during the marriage until separation.

   [17] Affidavit of Applicant Wife filed 25 September 2017, par 45.

4. I accept the unchallenged evidence of the wife that she paid several mortgage payments including arrears from May 2014. She deposed to these amounts being approximately $6,800 in May 2014, $3,200 in May 2015, $3,200 again in May 2015 and $1,360 per month totalling $32,640 over two years from May 2015 to June 2017.[18]

   [18] Affidavit of Applicant Wife filed 25 September 2017, par 59.

5. Both parties have made financial contributions to the property of the marriage during the marriage.  I accept the evidence of the wife that during the marriage, the husband worked to support the family financially and she cared for the parties’ seven children.

6. I am satisfied, doing the best I can on the wife’s limited unchallenged evidence, that the wife made a significant non-financial contribution by way of her role as home-maker and full time carer of the seven children during the marriage. The wife’s role supported the husband in his role of breadwinner for the family during the marriage. The wife has contributed $38,000 by way of initial contribution to the purchase of the Suburb D property in 2009 and made further financial contributions to the payment of the mortgage on that property post-separation amounting to at least $42,640 since May 2014. 

7. The wife has also continued to make a non-financial contribution post separation in her role as primary carer of the children and homemaker.  She has also financially supported the children since separation being a period of over 4 years.   

8. The husband has made no financial contribution or non-financial contribution at all post separation.

   In these circumstances I find that the contributions of the parties have been equal during the marriage.  However I find that the wife alone has made all of the financial and non-financial contributions in the four years since separation.

Relevant s 75(2) Factors Under s 79(4)(e)

1. Section 79(4)(e) requires that the Court take into account the factors in s 75(2) of the Act so far as they are relevant.

   The wife is aged 38 and the husband is aged 51.  There is no evidence about the health of the husband as he has not been in contact with the wife since he left in May 2013.[19] The wife deposed that she is in ‘reasonable health’.[20]

   [19] Case outline of Applicant Wife filed by leave 9 January 2018.

   [20] Case outline of Applicant Wife filed by leave 9 January 2018.

2. On the unchallenged evidence, there is no financial agreement binding on the parties.

3. The wife has had difficulty working full time because of the need to care for the children under 18 years and she has no formal qualifications and cannot speak English.

4. The wife is in receipt of a Family Tax Benefit which she estimates is $193 per week.  She is also in receipt of a Newstart Allowance of an estimated $284 per week, with her total combined income averaging $477 per week.[21]  The wife deposed to a total weekly expenditure of $464 per week.  The wife deposed to $3,000 in her ANZ bank account and owning her motor vehicle, which has an estimated value of $13,500.  The wife does not have any superannuation entitlements and deposed to owing her friend Ms O $4,000 by way of an outstanding personal loan.

   [21] Financial Statement of Applicant Wife filed 25 September 2017.

5. Because of the wife’s role as full-time carer and homemaker during the sixteen year marriage she has not had the opportunity to participate in the workforce or undertake training to improve her earning capacity.  The wife wishes to continue her role as full time carer of the children under 18 years.

6. There is no evidence about the property and financial resources of the husband or his physical and mental capacity for appropriate gainful employment.  There is no evidence about the commitments of the husband, whether he has any responsibilities to support any other person, or whether he is cohabiting with another person whose financial circumstances may be relevant.  There is no evidence that the husband has paid any child support or that his financial circumstances are such that he is liable to pay child support.

Conclusion

1. I am satisfied on the unchallenged evidence of the wife that it was appropriate to proceed with her application on an undefended basis having regard to the previous orders made by Johns J.  I am satisfied that the husband and the second respondent have been accorded procedural fairness.  The respondents did not participate in the proceedings and did not oppose the wife’s proposals.

2. I am satisfied that the parties were married for a period of approximately 16 years and 8 months during which the wife cared for the seven children of the marriage on a full-time basis which meant that she had no opportunity to improve her language skills or train for employment.  The mother’s full-time role as carer and homemaker allowed the husband to work to financially support the family during the marriage. 

3. There is no evidence that the parties had any assets at the commencement of the marriage and I have found that their contributions during the marriage were equal.

4. The only property of the marriage is the surplus proceeds after the sale of the Suburb D property by the second respondent. The value of the surplus doing the best that I can on the unchallenged evidence is approximately $230,000 but this will depend on the price achieved for the sale.  It would appear to be a small property pool.

5. Post separation, during a period of at least four years, the husband has made no contribution to the welfare of the family financially or in any other way and the wife has borne the responsibility for the maintenance and full-time care of the seven children of the marriage.  She has attempted to work in paid employment but has found that her childcare responsibilities conflict with paid employment. The wife is also limited in her capacity for employment having no formal qualifications and little English.  The wife has also been prevented from improving her income capacity because of the 16 year period of full-time care of seven children of the marriage.  The wife has limited savings, no assets or income other than government benefits.  She is effectively homeless and without any superannuation.

6. Post separation the wife has also made financial contributions to the cost of the mortgage payments until she could no longer afford them.

7. There is nothing in the evidence to indicate that the wife is likely to receive any assistance at all from the husband and the youngest child is aged only eight years of age.  The payment to the wife of the surplus proceeds of sale of the Suburb D property represents the only opportunity for the wife to obtain any financial support for herself and the children.

8. I am satisfied that it is just and equitable, particularly having regard to the fact that the mother and children are effectively homeless, to make the unchallenged orders proposed by the wife to assist her in the support of herself and the children of the marriage.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 29 March 2018.

Associate: 

Date:  29 March 2018