ALBAIR & BADINA

[2020] FCCA 2186

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALBAIR & BADINA [2020] FCCA 2186

Catchwords:
FAMILY LAW – Ex tempore judgment in undefended property application.

Legislation:

Family Law Act 1975 (Cth), s.75(2).

Applicant: MS ALBAIR

Respondent: MR BADINA

File Number: DGC 72 of 2020

Judgment of: Judge Burchardt

Hearing date: 3 August 2020

Date of Last Submission: 3 August 2020

Delivered at: Dandenong

Delivered on: 3 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Mansfield

Solicitors for the Applicant: Ryan Carlisle Thomas

Counsel for the Respondent: No appearance

Solicitors for the Respondent: Not applicable

ORDERS

1. The Applicant be granted leave to bring these proceedings out of time.

2. Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, final parenting and property orders are made in accordance with the attached Minutes of Orders proposed by the Applicant and placed on the Court file.

THE COURT DIRECTS THAT:

1. The solicitors for the Applicant file a clean, certified, electronic copy of the Minute in Word Format to the chambers of Judge Burchardt by way of email to [email protected] within seven (7) days.

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 72 of 2020

MS ALBAIR

Applicant

And

MR BADINA

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. In this matter the applicant, de facto wife, seeks property orders arising out of a relationship which lasted from around about 2002 until January 2016.  The first matter on which I should comment is the question of service.  Contact with the respondent has been intermittent at best over the years, but I am fully satisfied that the relevant papers have been served on the respondent by post at an address at which he is more likely than otherwise to have had notice of them, and more particularly, albeit relatively recently, by email.  The fact is that he has not responded to any endeavours, and there have been a number of them, both by the applicant’s solicitors and, as I am informed by counsel, by the applicant and her family, and he has simply elected not to participate in the proceeding.

2. Given that the circumstances of the applicant’s material suggest that this matter is attended by a measure of urgency and a need for finality, in any event I am quite satisfied that the applicant has served the respondent and that the matter should proceed.  Not interrelated, but a separate further matter is of course that this application is made out of time.  It is sufficient to say that the applicant’s explanation for her delays in bringing the matter are comfortably sufficient to make it appropriate for any extension to be granted.

3. The next question, of course, is whether or not the proposed orders are just and equitable.  It needs to be borne in mind that I obviously only had the applicant’s version because of the respondent’s failure to participate.  On her materials, however, and they seem internally consistent and otherwise cogent, at the commencement of the relationship she owned a property in Melbourne that she still owns, with virtually no mortgage at all, a mortgage of some $25,000. 

4. That mortgage is now $377 odd thousand dollars, and that increase was essentially in large part applied to purchase out the interest of other family members of the respondent in what is now the property that the applicant and respondent own in the Northern Territory.  The applicant has been paying the mortgage for a considerable period of time, and as counsel has informed me this morning, it is very possible that the respondent does not live there, and it may indeed be unoccupied. 

5. I am told that bearing in mind the husband’s recent receipt of funds that are over $100,000, the likely outcome may represent approximately an 80/20 split.  In my view this would be justified on either of two methodologies:  first, it might be justified on the footing that there is, in truth, only really one real asset in this relationship, and that the wife, who has full time care of three children, all under the age of 18, and will continue in the case of the youngest to do so for many years to come, ought have that asset to enable her properly to care for the children, and provide them with a home. 

6. It could be looked at in the alternate way, however, which is that the only asset with regards to the parties jointly was entirely purchased with funds raised by the applicant, on the security of her own home, which was the primary asset of the parties in any event. So whether it be as a springboard contribution, and the ongoing s75(2) matters to do with the children or whether it is approached on the single asset basis, in my view, on either test, the proposed orders can comfortably be seen to be just and equitable, and for that reason I have made the orders sought.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 7 August 2020