Burke and Bell
[2012] FMCAfam 1192
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BURKE & BELL | [2012] FMCAfam 1192 |
| FAMILY LAW – Property proceedings – undefended – small pool – husband making no contribution to liabilities – no property to adjust in favour of wife – splitting order made from husbands superannuation. |
| Family Law Act 1975, ss.75 & 79 |
| Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143, (2003) 30 FamLR 355 In the marriage of Lee Steere (1985) FLC91-626 In the marriage of Ferrarro (1993) FLC92-335 In the marriage of Clauson (1995) FLC 92-595 Russell and Russell (1999) FLC 92-877 Teal & Teal [2010] FamCAFC 120 (25 June 2010) |
| Applicant: | MS BURKE |
| Respondent: | MR BELL |
| File Number: | WOC 347 of 2012 |
| Judgment of: | Foster FM |
| Hearing date: | 28 September 2012 |
| Date of Last Submission: | 28 September 2012 |
| Delivered at: | Wollongong |
| Delivered on: | 6 November 2012 |
REPRESENTATION
| Solicitors for the Applicant: | DGB Lawyers |
ORDERS
That the Court allocates as required by section 90 MT(4) of the Family Law Act a base amount of $25,000 to the Applicant wife out of the Respondent husband’s interest in the [H] Superannuation Fund (“the fund”).
That in accordance with section 90 MT(1)(a) of the Family Law Act 1975 the Court creates an entitlement on the part of the Applicant wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and makes a corresponding reduction in the entitlement to the Respondent husband or such other person to whom a splittable payment may be made, would have had in this fund but for this order.
That whenever the Trustee of the fund makes a splittable payment out of the Respondent husband’s interest in the fund the trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created by this order in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
That the Applicant wife’s Solicitors must serve a certified sealed copy of these orders on the Trustee within 14 days after the date of these orders.
That this order has effect from the operative time which is four days after the date of service of a certified sealed copy of these orders on the Trustee.
IT IS NOTED that publication of this judgment under the pseudonym Burke & Bell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
WOC 347 of 2012
| MS BURKE |
Applicant
And
| MR BELL |
Respondent
REASONS FOR JUDGMENT
The Proceedings
These are proceedings for property settlement commenced by the Applicant wife by the Initiating Application filed 18 April 2012.
In the Initiating Application the wife sought orders that, in summary, provide that:
a)The husband be solely responsible for and indemnify the wife against the Westpac Bank personal loan;
b)The 2005 Mazda 3 be transferred to the wife;
c)The 2005 Toyota Corolla be transferred to the husband;
d)A superannuation splitting order of $25,000 in favour of the wife from the husband’s superannuation fund;
e)The parties retain all other property in their respective possession;
f)Each party be liable for the payment of any debt incurred in their sole name or jointly and shall indemnify the other party; and
The proceedings first came before the Court on 17 July 2012.
On the 18 April 2012 a sealed copy of the Application filed on 18 April 2012, together with a copy of the wife’s affidavit filed on 18 April 2012 and her financial statement filed on 18 April 2012 were forwarded to the Respondent by ordinary prepaid post. On 28 May 2012, the wife filed an affidavit of proof of signature. Annexed to that affidavit was the acknowledgement of service signed by the Respondent husband acknowledging that the above documents were received by him on 15 May 2012. The wife in her affidavit, verified the husband’s signature on the acknowledgement of service.
On 17 July 2012, the first return date of the wife’s application, there was no appearance by or on behalf of the Respondent. The Court ordered that proceedings be adjourned for hearing to 28 September 2012 and that the wife file and serve any amended Application and affidavit to be relied on by no later than 31 August 2012. The Court further ordered that service of documents on the Respondent be effected by forwarding documents to the Respondent by ordinary prepaid post to the address at which the initiating Application was forwarded and that the solicitor for the Applicant forward a sealed copy of the orders made on 17 July 2012 to the Respondent.
On 28 September 2012, there was no appearance by or on behalf of the Respondent and the matter proceeded to undefended hearing.
Background
The Applicant wife is aged 32 years and is a [occupation omitted] earning about $75,000 per annum. The Respondent husband is aged 33 years and his last known occupation was as a [occupation omitted].
The parties commenced cohabitation in October 2001 in Scotland, were married [in] 2005 and were separated on 10 March 2011. There are no children of this relationship.
Over the period of cohabitation the wife’s income has exceeded that of the husband significantly.
At the time of cohabitation, the husband had a motor vehicle in Australia worth approximately $2000. This was the only asset of the relationship at the time.
The parties returned to Australia in March or April 2002 and lived with the Applicant’s parents until approximately September 2002, paying $100 per week in rent. The parties then lived in shared accommodation for six months.
In April 2003 the parties returned to Edinburgh for six months to live and work. The parties returned to Australia in October 2003.
In November 2003, the Applicant obtained a personal loan of $13,174 from Westpac Bank to purchase a Holden car. The Applicant refinanced that loan in July 2005, making the total amount borrowed $18,145. The additional funds were used to pay for the parties wedding.
The parties purchased a property in [C] in April 2007 for $382,000, borrowing 98% of the purchase price from [R] Home Loans. The parties put approximately $10,000, gifted to them by the Applicant’s parents, towards the deposit.
The parties jointly borrowed $27,105 in July 2007 to purchase a Holden Astra and pay off other debts.
In April 2010 the parties sold the [C] property for approximately $390,000. There was no surplus.
The joint Westpac Bank personal loan was again refinanced in July 2010, increasing the total to $53,752. This money was used to purchase the wife’s 2005 Mazda 3 and the husband’s 2005 Toyota Corolla. The wife retains the Mazda 3 motor vehicle and the husband retained the Toyota Corolla which he sold after separation.
The parties purchased land in [G] for $262,000 in February 2011.
Separation was on the 10 March 2011.
Following separation, the Applicant became aware of various loans in the Respondent’s sole name.
Both parties, following separation, made repayments towards the mortgage and personal loan. The Respondent made repayments totalling $4,450 to the mortgage and personal loan. The Applicant made all other payments towards the mortgage, personal loan, rates, insurance and other outgoings as outlined in Exhibit C, totalling, by March 2012, over $40,000.
The [G] property was sold in March 2012 and after selling costs and payment of agent’s commission there was no surplus.
Subsequent to separation, the Applicant has discovered that the Respondent borrowed in his own name over a period of years from November 2005 various personal loans from Westpac bank. During cohabitation the Applicant was unaware of these loans.
The Applicant further asserts that, during cohabitation, various cash withdrawals were made from the joint accounts conducted by herself and the Respondent. She was unaware as to the purposes of these withdrawals and asserts that between March 2004 and March 2011 these withdrawals were in excess of $200,000.
The Law
The approach the Court is required to adopt in determining an application under section 79 of the Family Law Act for adjustment of property interests is well established by authority (Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143, (2003) 30 FamLR 355, In the marriage of Lee Steere (1985) FLC91-626, In the marriage of Ferrarro (1993) FLC92-335, In the marriage of Clauson (1995) FLC 92-595).
The process ordinarily involves a four-staged process.
Firstly, the Court must identify the property, liabilities and financial resources of the parties at the time of the hearing.
The Court then considers the contributions made by the parties as defined in section 79 (4) (a) to (c).
Thirdly, the Court must consider the future needs of the parties by having regard to the provisions of section 75(2) in so far as they are relevant.
Finally, in determining what order the Court should make, the Court must be satisfied in all of the circumstances that it is just and equitable to make the order, s.79(2). It is the justice and equity of the actual orders that the court must consider. (Russell and Russell (1999) FLC 92-877, Teal & Teal [2010] FamCAFC 120 (25 June 2010)).
The Asset Pool
The assets of the parties comprise the following:
a)Wife Money at bank $ 3,000 approx
b)Wife Mazda car $ 9,000
c)Wife [F] Super $32,000 approx
d)Husband [H] super $28,000 approx
e)Husband Toyota Corolla sale Not known
$72,000
The primary liability of the parties referable to cohabitation is the outstanding joint Westpac loan having an outstanding balance of approximately $46,350.
Contributions
The assessment of contributions in this matter is in reality of little assistance to the court in determining final orders.
At cohabitation, the parties had little save for a motor vehicle owned by the Respondent. During cohabitation, the wife earned significantly more income than the husband. Her parents contributed $10,000 towards the purchase of the property at [C]. The wife has had the burden of ongoing mortgage payments and personal loan repayments in regard to the joint liability to Westpac bank.
Her prospects of recovering any funds from the Respondent by way of contribution to the payments made by her are insignificant. An indemnity would do little to achieve that purpose.
In the circumstances, the Court is satisfied that in assessing contributions, the wife should receive a substantial portion of the husband’s superannuation to reflect her contribution based entitlement.
Regrettably, there are insufficient assets of the husband known to the Court to permit any other order being made.
In the factual circumstances of this matter there are no relevant factors that enliven an interest in section 75(2) factors.
The Court is satisfied that the orders proposed in all the circumstances are just and equitable.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Foster FM
Date: 6 November 2012
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