Almanza & Almanza
[2021] FedCFamC1F 307
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Almanza & Almanza [2021] FedCFamC1F 307
File number(s): SYC 7306 of 2018 Judgment of: SCHONELL J Date of judgment: 16 December 2021 Catchwords: FAMILY LAW – PROPERTY – Where consent orders were made on a final basis as between the applicant and the second and third respondents – Where the applicant’s application as against the first respondent proceeded undefended – Where the applicant has taken all reasonable steps to give notice to the first respondent of the proceedings – Orders made for 60/40 property settlement in favour of the applicant. Legislation: Family Law Act 1975 (Cth) ss 75(2), 106B Cases cited: Black & Kellner (1992) FLC 92-287
Omacini &Omacini (2005) FLC 93-218
Stanford v Stanford (2012) 247 CLR 108
Weir & Weir (1993) FLC 92-338
Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 13 December 2021 Place: Sydney Solicitor Advocate for the Applicant: Mr Brown Solicitor for the Applicant: Browns the Family Lawyers The First Respondent: The First Respondent did not appear Counsel for the Second and Third Respondents: Mr Moutasallem Solicitor for the Second and Third Respondents: Allied Lawyers ORDERS
SYC 7306 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALMANZA
Applicant
AND: MR ALMANZA
First Respondent
MS B ALMANZA
Second RespondentMR COSTA
Third Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
16 DECEMBER 2021
THE COURT ORDERS THAT:
1.The first respondent husband pay to the applicant wife the sum of $285,914 within three months of the date of the making of these orders.
2.The parties otherwise be declared solely entitled to all items of property and financial resources presently in their possession or control.
3.All other extant applications before the Court be dismissed.
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 Almanza & Almanza has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
The proceedings originally listed for hearing involved an application for property adjustment orders between Ms Almanza (“the wife”) and Mr Almanza (“the husband”) as well as a suite of orders sought by the wife including pursuant to s 106B of the Family Law Act 1975 (Cth) (“the Act”) against Ms B Almanza (“the second respondent”) and Mr Costa (“the third respondent”).
The second and third respondents were respectively the husband and wife’s daughter and former son-in-law.
The husband had taken no part in the proceedings and the matter was listed before the Court as against him on an undefended basis.
On the first day of the trial the wife and the second and third respondents resolved their controversy and the Court made orders by consent as follows:
1.That the second and third respondents shall pay the applicant the sum of $138,000 (“the sum”) within 6 months hereof.
2.That the first respondent shall indemnify the second and third respondents in relation to the sum.
3.That the second and third respondents shall advise the applicant of any contact they shall receive from the first respondent including any information as to the address, whereabouts or contact details of the first respondent.
4.The application as it relates to the second and third respondent is dismissed.
5.No order as to costs.
There remained for determination the wife’s application for property adjustment orders on an undefended basis against the husband.
In that application the wife’s solicitor sought orders for a determination in her favour as to 60 per cent of what he said represented the matrimonial pool of assets. For reasons which will become apparent I propose to make orders in the percentage adjustment as sought by the wife.
BACKGROUND FACTS
Both parties were born in Country E, the husband in 1953 and the wife in 1956.
The parties were married in 1975 and the second respondent was born in late 1975.
In approximately 1988/1989 the husband and wife together with the second respondent immigrated to Australia.
While living in Australia the husband and wife purchased various pieces of real estate, acquired a business and other assets.
The husband and wife separated in May 2018.
Subsequent to separation the husband sold almost all of the parties’ assets and retained the proceeds.
Since May 2018 the wife has not heard from the husband. Attempts to locate him have been unsuccessful.
DOCUMENTS RELIED UPON BY THE WIFE
The wife relied upon the following documents:
(a)Case Outline Document filed 6 December 2021;
(b)Amended Initiating Application filed 13 August 2020;
(c)Affidavit filed 9 August 2021; and
(d)Financial Statement filed 9 August 2021.
In the undefended hearing the wife sought orders as set out in paragraphs 4, 5 and 6 of her Amended Initiating Application that the husband pay her a sum of $369,000 within 14 days, declarations as to ownership of property and costs.
During the course of submissions the solicitor for the wife acknowledged that the monetary sum would need to be reduced given what he submitted to be the pool of assets.
The Court is satisfied by virtue of orders made in the Federal Circuit Court of Australia (as it was then known) by Judge Boyle on 5 December 2018 and 19 December 2018, and by Judge Morley on 29 March 2019 and 17 May 2019 that the wife had taken all reasonable steps to give notice to the husband of the proceedings generally and that substituted service had been effected.
The Court is satisfied that it is appropriate to proceed to hear the matter on an undefended basis.
The evidence of the wife is unchallenged and having regard to her affidavit I make various factual findings as set out in this judgment.
FINDINGS OF FACT
The parties were married in 1975 and the second respondent was born in late 1975.
At the time the parties immigrated to Australia in about 1988/1989 they had minimal assets.
For a number of years they resided in rental accommodation saving money to ultimately purchase a home at Suburb C in or about 1999 for the sum of approximately $149,000, which was sold approximately one to two years later. The parties subsequently purchased a property at Suburb D (“the Suburb D property”) in the name of the husband and the second respondent. The wife gives evidence that at the time of the purchase the bank would not provide sufficient funds for the parties to enable the property to be purchased in the name of the wife and the husband and accordingly the second respondent was placed on the title with the husband.
In or about 2004/2005 the parties acquired their daughter’s interest in the property for the sum of $70,000 and the property was transferred into the sole name of the husband.
During the course of the relationship the parties purchased and sold a number of motor vehicles. The wife gives evidence and I find that at the time of separation the husband had approximately three to four motor vehicles in his name as well as a caravan.
The parties were also the owners of a business which was in the sole name of the husband (“the business”).
During the course of the parties’ relationship the wife obtained employment in various fulltime positions initially as a health professional. The wife also worked for about 10 years in the parties business including cleaning, answering the phone and dealing with customers.
From about 2008 the wife worked in her own shop employed on a fulltime basis attending work up to seven days a week. The business was closed in about 2015.
The wife gives evidence and I accept that her income from all forms of employment was contributed towards the family’s needs including towards payment of mortgages.
The wife gave evidence of her significant contributions as a parent to the second respondent and her significant contribution as a homemaker including the preparation of meals, undertaking domestic work, shopping and cleaning.
The parties had discussions in 2016 about returning to live in Country E and retiring. The wife said that the husband was reluctant to move back to Country E saying that he wanted to remain living in Australia.
The parties travelled to Country E in October 2016 and the wife gives evidence of a discussion between the parties about the sale of the Suburb D property as part of their proposal about returning to live in Country E.
The wife says that in January or February 2017 the parties sold their business to the second and third respondents for approximately $130,000 with an upfront payment of $80,000 with the balance to be paid by way of instalments. However the evidence is that the upfront payment was not made until January 2018. The wife says and I accept that she did not receive any of the proceeds of sale from the business.
The wife gives evidence that upon their return to Australia enquiries were made about listing the Suburb D property for sale but her mother became ill and so she returned to Country E to look after her for approximately four months before returning to Australia in about April 2018. At that time the home had not been sold.
Upon her return to Australia the husband said to her words to the effect “I don’t want to go to Country E.” The wife said “It’s over between us. I don’t feel happy in the relationship.”
The wife states that the parties then had a discussion about dividing their assets and agreed to divide them equally. The wife gives evidence that she then indicated to the husband that she intended to return to Country E and he said to her “I will sell the house and everything else here in Australia and I will send you your 50% share in Country E.”
The wife returned to Country E on 6 May 2018.
The wife gives evidence of a number of attempts to communicate with the husband and the second respondent about what was happening with the sale of the home.
Having heard nothing from the husband or her daughter she decided she needed to return to Australia.
Upon returning to Australia on 6 August 2018 the wife discovered that the Suburb D property had been sold. Attempts to make enquiries with the second respondent about what had happened to the proceeds of sale were fruitless.
The evidence reveals that in June 2018 the husband received into a bank account in his sole name $631,663.87, being the net proceeds of sale of the Suburb D property. From these monies a “business loan” of $55,141.19 was paid on 12 June 2018.
The balance of the proceeds of sale of the Suburb D property were initially held in a bank account in the husband’s name and then transferred through a number of bank accounts in the name of the third respondent and then converted to cash and ultimately paid to the husband. The wife contends and I accept that she received no part of the proceeds of sale of the Suburb D property.
The wife gives evidence of the sale of various motor vehicles and a caravan and that she did not receive any part of the proceeds of the sale of those assets. There was no evidence of what the husband received from the sale of these assets.
THE PARTIES’ ASSETS AVAILABLE FOR ADJUSTMENT
As is apparent from the above the entirety of the assets of the parties acquired over the course of their 43 year marriage were sold and the proceeds retained entirely by the husband to the exclusion of the wife.
The wife’s solicitor submitted that the Court should find the assets of the parties to be the proceeds of sale retained by the husband as a consequence of his acts in alienating the funds and that they would represent the following:
(i)Net proceeds of sale of the former matrimonial home after the payment of the business loan: $576,523; and
(ii)Proceeds of sale of the business: $130,000.
The wife therefore contended that the assets total the sum of $706,523.
The wife’s solicitor submitted that the funds received by the husband are actually in excess of this amount but the wife is unable to place before the Court any evidence as to the value of any other assets realised by the husband other than as referred to.
It is well settled law that the Court takes the parties’ assets as they currently find them to exist and that adding back assets is the exception rather than the rule, and if one is to do so there should be circumstances that justify the Court doing so (see Omacini &Omacini (2005) FLC 93-218).
I find that it is appropriate to add back the funds received by the husband. The husband has retained the entirety of the proceeds of sale of the parties’ business and home. He misled the wife and represented to her that he would send the wife’s share to Country E and did not. He has failed to account to the wife for any of the funds. I find that the husband has retained property of the parties having a value of not less than $706,523 and that sum should form part of the assets for division.
The wife’s financial position is parlous. Her financial statement identifies that her net assets are $5,191. However of that sum $5,000 is represented by goods in a container located in Country E, in respect of which the evidence discloses that she was advised in 2018 that the goods would be sold within three months unless she pays the shipping cost of $4,500. The wife’s evidence is that she believes this has happened. I find that the wife’s net asset position is thus $191. The amount is de minimis and it would be, in light of all that has happened, an affront to justice to include that in the pool of assets for division.
I find that the pool of assets available for adjustment under s 79 is $706,523.
I find that it is just and equitable for an order to be made adjusting the property interests of the parties as they no longer have the common use of their property (Stanford v Stanford (2012) 247 CLR 108 at [44]). It was clearly an implicit assumption during the course of their 43 year relationship of the common use of their property and that assumption ended upon separation.
ASSESSMENT OF CONTRIBUTION AND S 75(2) ASSESSMENT
The Act mandates that in making a s 79 order I am required to consider the parties’ contributions both financial and non-financial as well as their contributions as a homemaker and parent as well as the matters under s 75(2).
The wife’s solicitor submitted that the contributions should be found to be equal.
There is no evidence from the husband as to his contributions.
In light of the wife’s contributions referred to above, not only by way of her financial contributions by way of her income but also by her contributions to the parties’ business and to her contributions as a homemaker and parent, a finding as to equality of contributions after this long marriage is appropriate.
The wife’s solicitor submitted that I should make a further adjustment in the wife’s favour of 10 per cent pursuant to the matters under s 75(2) of the Act given the fact of the wife being in receipt of no income, having only a Newstart allowance and allowing for the non-disclosure by the husband.
Again there is no evidence of any matters relevant to a consideration under s 75(2) in relation to the husband.
In relation to wife, I accept that the wife is 65 years of age, is unemployed and in receipt of a Newstart allowance. The wife gives evidence that she suffers from fibromyalgia which causes her chronic pain and that she cannot engage in any form of employment.
The wife further gives evidence that she suffers from panic attacks and has been referred to a psychologist. I also accept the submission in relation to non-disclosure. I find that the husband has failed to take part in the proceedings and as a consequence he has failed to make disclosures to the wife as to the extent of his financial circumstances. I accept that his conduct in selling the parties’ assets, being less than truthful with the wife about what he intended to do with the parties’ assets, knowing that she was in Country E at a time when he was selling the home and his failure to account to the wife for their assets and retaining them entirely for himself comfortably, falls within the description of a party who has failed to make full and frank disclosure. Consistent with the guidelines established in cases such as Black & Kellner (1992) FLC 92-287 and Weir & Weir (1993) FLC 92-338, it is legitimate for the Court to not be unduly cautious about making findings in favour of the wife.
In those circumstances, therefore, I am comfortably satisfied that a further adjustment of 10 per cent in favour of the wife pursuant to s 75(2) for the factors referred to above is a proper exercise of my discretion.
Accordingly I find the parties’ assets of $706,523 should be divided in the proportions as to 60 per cent to the wife and 40 per cent to the husband.
To give effect to my findings, allowing for the fact of the orders entered into between the wife and the second and third respondents, there should be an adjusting order made in the wife’s favour in the sum of $423,914 less the sum of $138,000 payable by the second and third respondents.
I will therefore make orders that the husband is to pay to the wife within three months of the date of this judgment the sum of $285,914.
In my view an order of that magnitude more than comfortably satisfies the requirements of a just and equitable result and I make orders accordingly.
There were no submissions as to costs made to me and I therefore decline to make orders as to costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 16 December 2021
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