Awataman and Lahiri

[2011] FamCA 448

FAMILY COURT OF AUSTRALIA

AWATAMAN & LAHIRI [2011] FamCA 448

FAMILY LAW – PROPERTY – wife to vacate the property – husband to pay property settlement – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Awataman

RESPONDENT: Ms Lahiri

FILE NUMBER: MLC 3819 of 2010

DATE DELIVERED: 3 May 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Werner

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

Orders

1. That the husband have leave to proceed with the application filed 8 April 2011 notwithstanding the absence of the wife.

2. That the wife vacate the real property at B Street, Suburb C by no later than 4.00pm on 30 June 2011.

3. That by 4.00pm on Friday 27 May 2011, upon the husband providing to the wife by Friday 20 May 2011, all necessary documents to enable the transfer of the real property referred to in paragraph 2 hereof including any bank documents required for the wife’s obligations under any mortgage encumbering the said property to be discharged, the wife execute and return to the husband’s solicitors such documents.

4. That if the wife fails or refuses to comply with paragraph 3 hereof then pursuant to s 106A of the Family Law Act 1975 (Cth), the Registrar of the Court may sign any document to give effect to these orders in the name of the wife and the Registrar shall be satisfied of the wife’s failure to comply upon receipt of an affidavit sworn by the legal practitioner for the husband.

5. That upon the wife vacating the said real property but not before 30 June 2011, the husband pay to the wife $226,000 by way of property settlement.

6. That if the wife fails or refuses to comply with paragraph 2 of these orders, the husband have leave to immediately relist the matter for the purposes of seeking a warrant and/or filing an application that the wife be dealt with for contravening the orders.

7. That the wife pay the husband’s costs fixed in the sum of $3228.55 such sum having been deemed to have been paid by the wife as part of the payment by the husband as set out in paragraph 5 of these orders.

8. For the purposes of paragraph 3 hereof:

   (a)    the wife do all such acts and things and sign all such documents as are necessary to transfer to the husband all of her right, title and interest in the property at B Street, Suburb C; and

   (b)    the husband do all such acts and things necessary to discharge the mortgage in favour of the H Bank registered against the title to the said real property.

9. That the wife retain and the husband relinquish any interest in, the joint account with the H Bank numbered ….

10. That the wife retain and the husband relinquish any interest in the joint account number … with the H Bank.

11. That the husband retain and the wife relinquish any interest in the account number … with the H Bank.

12. That the husband retain and the wife relinquish any interest in the savings account number … with the H Bank.

13. That the husband retain and the wife relinquish any interest in the …motor vehicle.

14. That the wife retain and the husband relinquish any interest in the insurance payout received by the wife in respect of her motor vehicle.

15. That the husband retain and the wife relinquish any interest in his H Bank shares.

16. That the wife retain and the husband relinquish any interest in her H Bank, J Pty Ltd and K Pty Ltd shares.

17. That save as otherwise provided by these orders:

    (a)    each party be solely entitled to the exclusion of the other of all other property in the possession of the person as at this date save that any furniture or personal property which the wife fails to remove from the real property referred to above upon vacating shall become property of the husband;

    (b)    insurance policies shall remain the sole property of the owner named therein;

    (c)    each party be solely responsible for any liability encumbering any item of property to which that party is entitled pursuant to these orders;

    (d)    any credit card debt shall be the responsibility of the person in whose name the account is issued; and

    (e)    any joint tenancy of the parties in any real or personal estate is severed.

18. That each party retain and the other relinquish any interest in, their respective superannuation entitlements.

19. Subject to paragraph 6 hereof, all outstanding applications are otherwise dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the reasons be transcribed.

IT IS NOTED that publication of this judgment under the pseudonym Awataman & Lahri 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 3819 of 2010

Mr Awataman

Applicant

And

Ms Lahiri

Respondent

REASONS FOR JUDGMENT

1. Mr Awataman, to whom I shall refer as the husband, filed an application for property settlement in October 2010.  He sought orders from Ms Lahiri, to whom I shall refer as the wife.  I do so out of convenience, notwithstanding the parties were divorced in June 2006. 

2. Earlier this morning the wife was called outside of the Court, and there was no appearance.  That is perhaps not surprising, having regard to the fact that she has not participated in the proceedings to date. 

3. The first return date of the proceedings was 11 January 2011, which was a case assessment conference, and the record notes that the wife did not appear. 

4. Service was proved to the satisfaction of the registrar, who then made further orders and adjourned the proceedings to 24 January.  I have seen evidence to show that the wife was served according to the registrar’s order.  The registrar also ordered that the wife file documents by 11 March such as would entitle her to then participate in the proceedings.  The record also shows that that deadline has passed and no documents were filed. 

5. The matter came back for hearing before the registrar on 24 March 2011, and again the registrar was satisfied as to the service of documents subsequent to the previous order.  The wife did not appear, and the registrar then made further orders including that the husband file an amended application before 8 April and that that document be served, and I note from the Court record that not only has service has been proved but also that the document seeking the amended orders was filed. 

6. The registrar also ordered that the wife file and serve her material by 29 April, and again the record shows no documents have been filed. 

7. The registrar ordered that the matter be placed in the judicial duty list today on the basis that there is a point at which the Court can no longer continue to simply encourage people to participate.  This is a classic example of enough is enough.  I inquired of the husband why he anticipated that the wife had not participated in the proceedings, and his “best guess” was that she has “issues”. 

8. The affidavit material Maria Barbayannis filed 2 May, shows not only the service of documents but also that endeavours were made to contact the wife.  The wife corresponded with the solicitors for the husband via an email indicating that she was quite upset about documents being sent to the work address.  I am not in a position to make any comment as to whether that was good or bad from the practitioner’s point of view, but it clearly indicates that the documents were in the possession of the wife, and therefore she had notice of the proceedings. 

9. The husband said in evidence that he has had numerous messages from the wife.  Most recently, subsequent to the commencement of those proceedings, the wife sent a text message with words such as, “rot in hell”, “fat dog” and “you bastard”.

10. I suppose I can conclude from that that the wife is not happy, but it does not explain why she is not here to protect her interests, let alone contribute to the conclusion of what is obviously a very unhappy relationship.  In circumstances where a divorce has occurred, it does not make sense for someone to not conclude the financial matters, although I note that the wife has possession of certain assets that might be encouraging her to bury her head in the sand. 

11. In all the circumstances, a court should not proceed with an application for final orders in the absence of notice to another party, and natural justice requires that the party against whom orders are sought is given every opportunity to participate.  I am satisfied in this case that the wife has been given ample opportunity to participate and has stubbornly refused to do so.  It is not just the participation in the proceedings that is relevant in this case, but there is defiance of at least two orders of the Court for the wife to file the material.  Under those circumstances, I grant leave to the husband to proceed on an undefended basis. 

12. The substantive proceeding, therefore, is contained in the amended application filed on 8 April 2011.  A variety of orders were sought in that application.  One was to divide up the property of the parties on a quite precise basis, and, as I have indicated to counsel for the husband, I propose to do it in a more roundabout fashion, but it will make little difference to the outcome. 

13. The second matter is that orders are sought for the purposes of implementing any division of property.  An order should be made under section 106A of the Act for a registrar to sign any document in the event that the wife refuses to comply.  The wife has possession of the former matrimonial home.  The wife is not here today to argue that she should be given the right to retain the property as part of any division, and it is quite clear in the application that the husband seeks the order.  On that basis, there is every reason for me to make an order that the husband have the possession of the property forthwith, and should the wife fail to vacate in accordance with the orders I propose to make, then she faces the prospect that she may be dealt with for failing to vacate. 

14. I turn, then, to the substantive proceedings in some detail.  In determining the division of property between the parties, the Court has traditionally followed a four-step process.  See Hickey & the Attorney-General for the Commonwealth of Australia.  Those four steps are first to decide what assets the parties have between them. I am satisfied in the circumstances that I have sufficient evidence to make that determination. The second step is to assess and give weight to the respective contributions of both a financial and non-financial nature. Those assessments require an adjustment to be undertaken in relation to both the conservation and improvement as well as the acquisition of various properties. The third step is to make any adjustment which effectively looks to the future of the parties, having regard to their various circumstances. Those matters are set out in section 75(2) of the Act. The fourth and the final step is to make any order which ultimately gives effect to a just and equitable outcome.

15. Section 79(2) of the Act says that a Court should not make an order unless it is satisfied that the outcome of the proceedings, that is, the underlying value of the assets that the parties receive, is just and equitable. 

16. The parties married in Country L in April 2004.  They did not live together prior to that period of time.  At the commencement of the relationship, the uncontested evidence of the husband is that the wife had about $60,000 in savings and he had about $10,000.  $36,000 of the wife’s money appears to have gone towards the deposit on the former matrimonial home, and the balance went on lifestyle. 

17. There is no challenge to the husband’s evidence about the fact that subsequent to the marriage, both parties worked and earned substantial salaries.  The distinction between those salaries is modest, but it does not seem to matter, in any event.  This is not a mathematical exercise.  What I am looking at here is whether there is a substantial difference in the contributions that the parties have made.  In this case, I would not find that there is. 

18. The pool of assets as it is today is set out in a document that counsel prepared which outlines the assets that are in the parties’ respective control. 

19. The first of those assets is the home, which has been put into the pool at $625,000.  The evidence that the husband relies on is an appraisal prepared by some agents who said that it is in the range of $600,000 to $650,000.  Normally that evidence would not be admissible, but in this case, there is no dispute from the wife, she having been made aware of what the husband was seeking to do, and I see no reason why taking a sensible approach and working out that it is somewhere between $600,000 and $650,000 is the appropriate value to use. 

20. The husband gave evidence that he also has a debt by way of mortgage to the H Bank of $348,000, and again there is no challenge to that position. 

21. The husband also gave evidence of the value of his motor car, which although it seemed high for a 2003 model, he said that it had low kilometres.  And I have no reason to reject that.  It seems to me to be an admission against interest, in any event. 

22. The bulk of the assets otherwise lie in various savings accounts either in the parties’ respective individual names or in the joint names.  The husband clearly has the greater control of those funds, but I have no reason to doubt that what he has set out in his documents is correct.  There are some modest shares in the H Bank, and the wife has, apparently, an insurance payout on her motor vehicle of about $7000. 

23. The husband set out that he used funds that had been accrued by the parties during the relationship to enable his family members to come to Australia.  He said that cost somewhere in the vicinity of $70,000.  To his credit, he not only set that out in some detail, but he has added it back to the pool on the basis that that is a premature distribution to him to which the wife might have some genuine complaint if it was excluded.  I propose to include that in the pool. 

24. The other interest that the parties have lies in superannuation.  The wife having not filed any material and the husband not being entirely clear on what her financial position was has estimated that she has superannuation interests in the vicinity of $49,000. 

25. He knows what his superannuation entitlements are, and he declares them to be about $42,000. The distinction between the two is modest, having regard to the parties’ respective ages and the period of time between now and retirement. I propose, under those circumstances, to simply treat that as a separate asset but to make no division of it, having regard to the other findings I shall make in respect of contributions and section 75(2) factors.

26. Leaving superannuation aside, therefore, the net equity of the parties in the assets other than superannuation is approximately $655,000.  If that is divided into two, then the wife’s entitlement is $328,000, and she currently has approximately $98,000, leaving an entitlement shortfall of $230,000. 

27. I am satisfied that the pool is $655,000 net, excluding superannuation. 

28. In respective contributions, albeit that there are varying differences in the amounts contributed, I accept that overall, they contributed equally. 

29. The third step requires me to consider the various matters in section 75 of the Family Law Act 1975 (Cth), as it applies to both parties. The evidence is that there is a difference between the parties’ current financial circumstances in that the husband earns less than the wife, but both parties appear to enjoy good health, and both have some security of tenure, such as it can be said in this day and age. There are no issues associated with children in this case, nor is there any issue associated with government benefits or child support. There is superannuation, and both parties will keep their benefits, and to some extent without double-counting, I can take that into account for the purposes of section 75(2). In my view, there is no justification for any further adjustment.

30. What the husband here seeks is that he be able to keep the home and take over the mortgage and that he pay to the wife $230,000 and otherwise the parties retain the assets in their respective possessions.  That seems to me to be a just and equitable outcome in all of the circumstances.  I propose to make orders as I have outlined. 

RECORDED   :   NOT TRANSCRIBED

1. I have an application now for costs arising out of the judgment that I have just given. Section 117 of the Family Law Act 1975 (Cth) provides that each party bears their own costs unless there are circumstances that satisfy the Court that there is a justification for departing from that principle. If the Court decides there are justifying circumstances, the Court is obliged to take into account the matters set out in section 117(2A) of the Act.  Those matters are relatively straightforward, and none is of any greater weight than the other.  Those factors require the Court to consider the financial circumstances of each party.  As I have already indicated in this case, there is a pool of about $650,000.  The wife will not be impecunious, and in any event, she has an income of about $110,000 per year.

2. Another factor to be taken into account is whether or not there are legal aid considerations, and clearly, having regard to the financial circumstances of the parties, there are not. The Court is also obliged to take into account the questions of what parties have done to assist the resolution of the matter, including the compliance with orders, and, as I have earlier set out, the wife has failed to comply with orders of the registrar. The section 117(2A) also provides that a Court can take into account the circumstances that are relevant otherwise. It is clear that in a straightforward property case where the facts are not in dispute and there are no children and both parties are working and earning a reasonable salary, most cases would be expected to be resolved quickly and efficiently without the resorting to litigation.

3. Unfortunately, that has not happened here.  The husband has had to go to the trouble of not only engaging in the legal process but has been to Court on a number of occasions, much to this cost, and the wife can only be responsible for that dilemma.  It seems to me in this case that there are justifiable circumstances for making an order for costs.  The costs sought are $928.55 from the hearing fixed by the registrar in January, the costs of today being counsel’s fees and preparation for the solicitors.  Looking at the scale, both of those matters seem reasonable in the circumstances. 

4. I propose, under those circumstances, to make an order that the wife pay the husband’s costs of $3228.55 thrown away, and that sum needs to be reduced from the debt that the husband has towards the wife by virtue of the orders. 

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 May 2011.

Associate:

Date:  16 June 2011