Archer and Archer (No 3)

[2012] FamCA 821

FAMILY COURT OF AUSTRALIA

ARCHER & ARCHER (NO. 3) [2012] FamCA 821

FAMILY LAW – PROPERTY – Final property orders – unopposed by husband who is overseas

Family Law Act 1975 (Cth)

APPLICANT: Ms Archer

RESPONDENT: Mr Archer

FILE NUMBER: MLC 3773 of 2011

DATE DELIVERED: 17 September 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 17 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Eid

SOLICITOR FOR THE APPLICANT: Wainwright Ryan Eid Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT pursuant to s 79 of the Family Law Act 1975 (Cth) each of the husband and wife keep and retain sole ownership of all real property now registered in their name, whether it be in Australia, Lebanon or elsewhere, and each of them retain all personal possessions, motor vehicles, furniture and chattels and their superannuation entitlements.

2. THAT as and by way of costs, and pursuant to s 117 of the Act, the husband pay to the wife a cumulative sum of $4,200, such sum to be paid within thirty (30) days of the date hereof.

3. THAT the wife’s Initiating Application filed 5 May 2011 and all subsequent applications in a case be otherwise dismissed and the proceedings be removed from the docket of Young J.

4. THAT leave be granted to the wife to file this day the affidavit of service upon the husband and the documents handed to the court evidencing the transfer of properties to the two children of the marriage be marked as exhibit “W1” and be retained on the court file.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties, and with the wife’s solicitors being required to forward to the husband and to his Lebanese solicitors by pre-paid post a copy of the final orders of the court and the extempore reasons for judgment.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Solicitor appearing as Counsel for the wife.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Archer has been approved by the Chief Justice 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 again listed before me for the conclusion of the property and financial issues before the Court.  Ms Eid, solicitor, appears for the wife.  There is no appearance by or on behalf of the husband.  He was called out of court and is not present in the Court, and it is understood that he continues to reside in Lebanon. 

2. These proceedings were commenced on 5 May 2011 by the wife filing an initiating application for orders pursuant to S79 of the Family Law Act 1975 (Cth).

3. At that stage, the wife sought that there be an alteration of property interest after the husband had provided full and frank financial disclosure.  The specific order sought by the wife was that the Court declare a just and equitable division of property.  From a perusal of the Court file it would seem that the husband has not filed a response and has not contested, in this court hearing, the orders sought by the wife.  There were subsequently various applications in a case filed by the wife and they dealt with interim financial issues and her request for the release of funds to her, pending the final hearing.

4. The matter has been before me on various occasions last year and during this calendar year and, on each of the occasions, the husband has been unrepresented.  In September of last year, I ordered the sale of the former matrimonial home at … Street, Suburb C.  That sale has occurred and the net proceeds of sale have, by court order, now been paid to the wife.  That property represented the only real property in Australia. 

5. There are other properties owned by the husband in Lebanon.  Pursuant to documents provided to the Court by the wife’s solicitor this day, it is now understood that the husband has consented to dealings with certain of those titles so that the two children of the marriage, H and M, are named on certain of those titles.  I accept that was a process organised by respective solicitors in Lebanon, and was done with the knowledge and agreement of the husband.

6. Certain documents have been produced in court today and I have had them marked as exhibit “W1”.  They evidence these property dealings.  The wife’s position is that she is content for her daughters to be on title to those Lebanese properties together with their father.  Of more significance is the wife’s concession that she does not pursue the husband’s ownership of other property in Lebanon or seek any orders for the sale or otherwise, to interfere with his ownership on title of those properties.  They therefore can and will remain in the sole name of the husband.

7. In the proceedings before me on 23 April of this year, I ordered the proceeds of sale of the Suburb C property to be paid out to the wife.  That has occurred.  I further order that the wife retain sole ownership and possession of the two motor vehicles and other furniture, chattels, and personal effects as existed in Australia and as were identified in her earlier affidavit filed with the Court.  It is just and equitable that the wife retain all such personal items and that is the basis upon which the final property orders are made this day.  To the extent that the wife holds any superannuation entitlements, these moneys are rightfully hers and should be retained by her within the division of property.

8. It therefore follows that if the husband has any other superannuation, in Lebanon or elsewhere, or other financial assets, then he can retain those, provided there is no level of fraud or non-disclosure involved on his behalf. 

9. I am satisfied that there has been appropriate service upon the husband of the documents that I ordered to be served, inclusive of my previous orders, and the transcript of evidence of M from the previous hearing. 

10. I am satisfied on the wife’s affidavit evidence that there are no other assets in Australia.  I accept that the wife does not wish to pursue overseas assets, does not want to spend further moneys or be involved with the emotional effort of corresponding with the husband or endeavouring to locate and value overseas assets.  The wife, through her solicitor, has advised the Court that the division of property is just and proper, given the other costs and issues involved, and above all else, the wife seeks finality of all proceedings, save for the issue of costs.  I observe that the parties are now divorced and that they are living their separate lives in separate countries.

11. There have been two previous costs orders, on 28 March and 23 April of this year, both in the sum of $1,400.  Ms Eid has sought a further sum of $1,400 this day.  Therefore, the total costs orders sought against the husband are $4,200.  I am satisfied that the wife has expended a considerable sum, more than $4,200 in these proceedings and significantly, moneys have been spent because of the non-appearance or non-cooperation of the husband.  I accept that it is necessary for the wife to have been represented in the proceedings, and thus she has incurred costs.

12. The principle of section 117 of the Family Law Act 1975 (Cth) is that parties each pay their own costs, save in circumstances where it is justified that a costs order be made. The Court therefore has regard to the factors as identified in subsection 2A thereof, and in particular, the Court must have regard to:

    §the financial circumstances of the parties;

    §the conduct of the parties in the litigation, and in the appropriate disclosure of assets, and generally, the level of cooperation in proceedings;

    §whether either party has been wholly unsuccessful.

13. I conclude that it is just that a costs order be made.  I have raised with the wife’s solicitors the difficulty of enforcing any costs order, given that there are no other moneys or assets of the husband within this jurisdiction.  Nevertheless, I am asked to pronounce a costs order on the basis that the husband may comply voluntarily or otherwise may come into further moneys or assets, and may return to this country, and then the order could be enforced.  On balance, I therefore conclude that it is just that the husband pay to the wife, costs in the all-inclusive sum of  $4,200, and that such sum be paid within 30 days of this day.

14. As an overview, and on the basis of determining a just and equitable outcome, and having general regard to the long-term contributions of the parties pursuant to section 79(4) of the Act and the various section 75(2) factors, I determine it is appropriate to pronounce a final property order on the basis of the parties retaining all real property and personal assets as are now in their respective name or possession. Thus, the wife will retain moneys paid to her pursuant to previous interlocutory orders of the Court and all of her other possessions and superannuation as are in Australia.

15. The wife knows and understands, and is present in court whilst I deliver these ex tempore reasons, that she will have no further legal claim to property owned by or on behalf of the husband in Lebanon, though she is fortified by the fact that her daughters now have some legal interest on title to various Lebanon properties. It is important that the proceedings be concluded, and I therefore intend to pronounce a final division of property order pursuant to s79 of the Act and to make the costs order to which I have referred. Otherwise, all proceedings will be struck out, and the file will be removed from my docket, and there will be no other proceedings in this court. I now pronounce final orders.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 17 September 2012.

Associate: 

Date:  17 September 2012