Archer and Archer

[2012] FamCA 195

FAMILY COURT OF AUSTRALIA

ARCHER & ARCHER [2012] FamCA 195

FAMILY LAW – PROPERTY - Interim property orders - release to the wife the sum of $100,000 - overseas property in Lebanon and a business to be valued - future defended property hearing - husband did not attend - dispensation of service in divorce application

Family Law Act 1975 (Cth)

Strahan v Strahan (2011) FLC 93-466

APPLICANT: Ms Archer

RESPONDENT: Mr Archer

FILE NUMBER: MLC 3773 of 2011

DATE DELIVERED: 28 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 28 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R. Allen

SOLICITOR FOR THE APPLICANT: Wainwright Ryan Eid Lawyers

THE RESPONDENT: No Appearance

Orders

Upon hearing Mr Allen of counsel for the applicant wife and there being no appearance by or on behalf of the husband

It is ordered:

1. THAT any and all further service of the wife’s application for divorce filed 14 March 2012 upon the husband be dispensed with, including the service of any ancillary documents, brochures or otherwise as may be required pursuant to the Rules.

2. THAT as an interim settlement of property the wife’s solicitors, on her behalf, be entitled to withdraw and be paid a sum of $100,000AUD from the ANZ Bank account established in the name of her solicitors on trust for her and that the balance of all monies and interest in that account remain invested pending further order of this Court.

3. THAT forthwith the wife’s solicitor make file and serve amended application for final s 79 property orders and that application together with a letter of explanation of the wife’s solicitors and a sealed copy of these orders are to be forthwith served upon the husband by both email and registered post (sealed copy orders are to be served by registered post only).

4. THAT all extant applications and the wife’s further amended initiating application to be filed be all adjourned for hearing before Young J at 11.00am on Monday 23 April 2012 and, unless the husband appears in Court or is otherwise legally represented on that occasion, the matter proceed on an undefended basis for final property orders.

5. THAT the extempore reasons for judgment be transcribed, placed upon the Court file and made available to the parties.

6. THAT the wife’s costs of and incidental to the hearing this day inclusive of counsel’s fees and attendance of solicitors are fixed in the sum $1,400 and the question of payment thereof be deferred to the adjourned hearing date.

IT IS NOTED

A.The wife has instructed her counsel to advise the Court that it is her intention on the adjourned final property hearing date to concentrate upon the assets within Australia and the order that she will seek is for the payment out to her of the balance of monies in the ANZ account, plus interest, and her retention of any other assets or person chattels within Australia but that she does not intend to pursue, investigate or seek orders to be made against overseas assets whether they be in joint names or now in the name of the husband solely save and except if the husband were to oppose the orders sought by her in respect of the Australian assets.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3773 of 2011

Ms Archer

Applicant

And

Mr Archer

Respondent

REASONS FOR JUDGMENT

1. The matter of Archer is listed before me for case management and directions this day.  Mr Allen of counsel appears for the wife, who is present in Court.  The husband has not attended and is not represented.  He was called out of Court and there was no appearance.  There are two issues before the Court this day.  One as to Section 79 final property and financial orders and the other as to the wife’s divorce application. 

2. On 14 March 2012 the wife issued the application for divorce, and that is returnable in this Court on Thursday, 26 April 2012.  The wife seeks dispensation from any further service requirements of that divorce application upon the husband, and that is identified in paragraphs 51-54 (inclusive) of her recently sworn and filed affidavit of 21 March 2012.  A letter which is exhibited to that affidavit has already been forwarded to the husband. 

3. Given the particular circumstances of this marriage, the length of separation, the husband’s now-permanent residence in Lebanon and the suggestion that he has a new relationship with Ms G, it would seem reasonable to dispense with any further service requirements or proof of service of the divorce application. Accordingly, in the exercise of discretion and pursuant to the Family Law Rules 2004, I dispense with any further service of that divorce application or ancillary documents and information upon the husband. My intention is that the issue of service and the husband’s knowledge of the divorce application is therefore not a matter in contest when the divorce application is properly returnable before a Registrar on 26 April 2012.

4. As to the property application, the wife filed on 5 May 2011 her initiating application for interim and final orders.  The final orders that she there sought were as follows:

   1) That there be an alteration of property rights, particulars of which can be provided after full and frank financial disclosure has been made by the husband;

   2) That the court make such orders by way of property settlement as is just and equitable.

5. The wife’s affidavit filed 21 March 2012 identified what she said to be the property of the marriage. 

6. Pursuant to my earlier orders of 5 September 2011 the property at S Street, Suburb C, has now been sold and that sale has settled.  There is a sum of approximately $227,000, or thereabouts, remaining from that sale and the wife’s solicitors have disclosed that they are holding $10,000 in their trust account for further and ongoing legal fees and disbursements.

7. The history of the marriage is set out in the wife’s affidavit.  There are two children, both of whom are now adult.  I have carefully read and evaluated that affidavit and the factual disclosures made therein by the wife. 

8. The question of the assets of the marriage, both in Australia and in Lebanon, are detailed in some particularity in paragraphs 32-50 (inclusive) of that affidavit.  The only Australian asset of any financial worth is the proceeds of sale of Suburb C.

9. As to property in Lebanon, the wife deposed to the previous purchase by her husband and herself of a number of properties, identified in paragraph 41 thereof, and at least three of which have been sold.  It does appear on the basis of the wife’s evidence that there is at least a remaining property in Lebanon which had been purchased at an estimated US dollar value of $118,000, or thereabouts.  Otherwise there should be the proceeds of sale of each of the properties identified in paragraph 43 of her affidavit and that is said by her to exceed a sum of US$350,000. 

10. There is then the vexed question of the husband commencing a business in Lebanon.  Whether that was post-separation or whether the stock was appropriated from the Australian business are clearly matters of dispute.  There is reference in paragraph 48 of her affidavit, which is inadmissible, to a valuation being obtained of some US$500,000.  In due course, an affidavit in admissible form will need to be filed as to the purported value of that business and the scope of its operations.  It is also said that there were moneys in a joint bank account in Lebanon.

11. Through her counsel the wife has indicated to the Court that it is not her intention to pursue a valuation and reconciliation of the Lebanese assets.  She has asserted to the Court in her affidavit that those overseas assets are significantly greater in value than the Australian assets.  However, the cost of valuation, the delay in valuation and the more difficult evidentiary questions that might arise in relation to the business valuation are matters that she would not easily undertake.  It would also be at a very considerable cost.

12. Accordingly the wife’s counsel has indicated her intention to amend her application so that she seeks to retain all of the Australian assets, but predominantly the proceeds of sale of Suburb C.  I require that amended application to be drawn and filed and then served upon the husband.  I require service to be by both email and registered post.  Additionally, there must be a very clear letter of explanation from the wife’s solicitors served upon the husband as to the orders sought, as to the mention in Court this day and as to the wife otherwise being prepared not to pursue the identification and valuation of the Lebanese assets.

13. If it is that the wife’s application is limited to the Australian assets and if that is undertaken by her in a full knowledge and understanding that there are assets said by her to be of a greater value overseas, and if her orders are sought as a final order then it will be that I direct the proceedings be listed before me on Monday 23 April 2012 at 11 am for what may be a final and undefended property hearing.

14. Of course, the husband has a right of attendance either personally or by engaging solicitors counsel to represent him in the proceedings.  It is therefore a requirement that notice of this further hearing be immediately served upon the husband.

15. Currently the balance of the Suburb C moneys are invested in an ANZ Bank account and that is produced to the Court as annexure 6 to the wife’s affidavit.  There is $227,000 in that account.  I am asked to make an interim property settlement.  In the particular circumstances of this case, it can be clearly understood that the wife would at least receive $100,000 of that sum.  I take a cautious approach preserving the balance of moneys in that account pending the adjourned hearing date, but it does seem proper and in accordance with the principles outlined by the Full Court in Strahan v Strahan (2011) FLC 93-466 that such an order be made and that the wife be put in some funds to assist her day to day living and to give her some financial security.

16. I have reflected on the appropriate circumstances of making such an interim order and, in these brief ex tempore reasons for judgment delivered without leaving the bench, I consider that such an order is just and equitable.  I have, in so doing, reflected upon the contributions as identified in the affidavit material filed and upon the appropriate s 79(4) and s 75(2) factors.

17. The husband has the financial security that, if he seeks any order against the Australian assets, there remains a sum in excess of $100,000 that must be and remain frozen in that ANZ account pending the adjourned hearing date. 

18. I therefore propose to order a sum of $100,000 be released to the wife as an interim settlement of property.

19. I will have these ex tempore reasons for judgment forthwith transcribed, placed upon the Court file and made available to the wife’s solicitors.  A copy of these reasons must be served by the wife’s solicitors upon the husband by registered post.

RECORDED  :   NOT TRANSCRIBED

The address for the husband will be shown as:

… Street

…

Lebanon

RECORDED  :  NOT TRANSCRIBED

ORDERS DELIVERED

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 28 March 2012.

Associate:   

Date:  4 April 2012