Croydon and Buz Yahid

[2009] FamCA 688

FAMILY COURT OF AUSTRALIA

CROYDON & BUZ YAHID [2009] FamCA 688

FAMILY LAW – PROPERTY – s 79 orders – Just and equitable – s 79(2) Final orders – Satisfied as to husband’s knowledge of hearing

Family Law Act 1975 (Cth)

APPLICANT: MS CROYDON

RESPONDENT: MR BUZ YAHID

FILE NUMBER: DGF 961 of 2006

DATE DELIVERED: 8 JULY 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 8 JULY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR MOORE

SOLICITOR FOR THE APPLICANT: BORCHARD & MOORE

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT the wife retain sole ownership of the property, registered in her sole name and situate at N in the State of Victoria subject to her being solely responsible for the mortgage liability in favour of Westpac Banking Corporation encumbering that said property.

2. THAT otherwise each of the husband and wife retain any furniture, chattels, motor vehicle or other personal possessions now in their respective possession or control.

3. THAT each party retain any monies invested by them in any bank or financial account and each of them retain their own superannuation and work related benefits and entitlements.

4. THAT each party be and remain solely liable for any personal debt or liability, save for the Westpac Banking Corporation mortgage referred to in Order 1 hereof.

5. THAT the wife’s application for final orders filed 22 November 2006 and her amended application for final orders filed 3 December 2008 and each of the responses filed by the husband be otherwise dismissed and all proceedings be removed from the docket of Young J.

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

7. THAT all documents subpoenaed to court are to be forthwith returned by the Subpoenas Clerk, Melbourne Registry, Family Court to the person or organisation producing such documents to this Court.

8. THAT there be no orders as to costs of and incidental to these proceedings and any reserved costs be discharged.

9. THAT within fourteen (14) days the solicitors for the wife are to serve upon the husband at his registered address for service, …:

   (a)         a sealed copy of these Orders; and

   (b)         the extempore reasons for judgment;

   (c)         the affidavit of Mr Bernard Moore, solicitor, filed 6 July 2009.

IT IS NOTED that publication of this judgment under the pseudonym Croydon and Buz Yahid is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 961 of 2006

MS CROYDON

Applicant

And

MR BUZ YAHID

Respondent

REASONS FOR JUDGMENT

1. This matter has been listed before me as a three day reserve defended hearing.  It was called on this morning and Mr Moore, solicitor, appeared for the wife.  There was no appearance by or on behalf of the husband.  I am asked to hear and determine this matter on an ex parte, undefended, basis and to that extent rely upon the evidence of the wife filed with the court as to assets and liabilities.  First I had the husband called out of court and he did not answer that call.  Thereafter the wife has given evidence of the fact that the husband had, and I accept her evidence, knowledge and notice of the hearing this day.

2. He is said now to be in Turkey and that is his fourth overseas trip since December of 2008.  He was in Australia in or around June and had a conversation with the wife.  He indicated that he would not attend at court and told the wife that she could have any of the Australian assets.  In reality, that only asset is the property at N.  That is a shop which is leased and the income from that business lease meets the required payment to Westpac Banking Corporation under the mortgage.  As I understand the evidence, the value of that property is between $220,000 and $250,000 and the mortgage is approximately $30,000 with a monthly required mortgage repayment instalment of $850 or thereabouts.

3. The amended application of the wife was most recently filed 3 December 2008.  That application seeks that she retain ownership of that N property which has been transferred from the sole name of the husband to her sole name, pursuant to a prior agreement between the parties which is in evidence as exhibit “W2” in the proceedings.  Otherwise, the wife seeks a lump sum payment for appropriate maintenance and support for the two younger children of the marriage who are aged 13 years and 11 years respectively, and orders for each party otherwise to retain any motor vehicle, chattels, or other personal possessions, superannuation or insurance now held by either of them.

4. The response of the husband, which was filed pursuant to a court direction on 11 March 2009, seeks effectively a sale of that property and/or the balance of moneys from another property at K, and for any moneys there received after payment of mortgage and expenses to be divided on a 60-40 per cent basis as between wife and husband.

5. The background facts of this matter are carefully recorded in the various affidavits.  The marriage was of some 23 years duration, with separation in March of 2006.  The divorce was pronounced in December of last year.  There are four children of the marriage whose ages are 20, 19, 13 and 11, and they all live with the wife.  One of those children is undergoing an apprenticeship.  The two younger children are at school.  The eldest daughter suffers a mental illness and depression and is presently not able to work.  The wife is 40;  the husband 41.  The wife is in employment and I have carefully assessed her financial statement.  Her financial assistance received from the Commonwealth is by way of rental assistance and Family Allowance Benefit and there is a clear entitlement by her to each of those payments. 

6. Otherwise she works and her income is in excess of $600 per week gross.  I have little or no knowledge of the husband’s recent employment history, though in his financial statement he deposes to receiving a Newstart allowance from the Commonwealth and otherwise describes his occupation as a courier driver.  I have little or no confidence in the financial disclosures made by the husband to the court.  They are hopelessly inadequate.  I have carefully assessed the history of this matter before the court.  These proceedings commenced on 9 January 2007, upon the wife’s application for property settlement.  Those proceedings were in the Federal Magistrates Court, and her initiating application was in fact filed 22 November 2006. 

7. At that stage, it is clear that the parties owned various properties and businesses which were identified in that application and the supporting affidavit.  The matter was initially listed in the Dandenong Registry of this court and there were various court hearings and mentions until ultimately, on 5 July 2007, and for reasons that I cannot possibly fathom, this matter was described as complex, a financial conciliation conference was fixed for 27 August 2007 and thereafter the matter was transferred to this court.  Perhaps the reason for complexity was because of the property owned by the husband in the Philippines, and at that stage, he was imprisoned in Melbourne as a result of a County Court trial and sentenced over illegal importation, avoiding Commonwealth excise duty. 

8. The file before the court thereafter records the various appearances throughout 2008, including the self representation of the husband before Registrar Sikiotis on 24 October 2008.  At that stage the matter was referred to Mushin J for final hearing.  The matter came before his Honour on 3 December 2008 and the husband appeared in person with the wife represented by her now solicitor.  His Honour did not hear the matter but made procedural orders for the filing of further material and further ordered, in paragraph 6 of his orders, that:

   “In the event that either party fails to comply with any provisions of these orders, liberty be reserved to the other party to apply for the hearing of any application on an undefended basis by virtue of such non compliance”.

9. It was pursuant to that order that the husband filed his affidavit, response and financial statement, although I regard the information contained therein as wholly unhelpful.  The matter next came before Registrar Sikiotis on 3 March 2009, in chambers, and the Registrar made orders for the filing of documents and listed the matter for hearing before me this day as a reserve matter.  Again, orders were made, subject to the discretion of the trial judge, for the matter to proceed on an undefended basis if any more helpful or required documentation was not filed.  Parties were given an extended filing date of 30 April 2009.

10. That mention before the Registrar was the last court event before the matter came on before me this morning.  I have ascertained from Mr Moore that the wife is not legally aided; she therefore is responsible for her legal costs.  Clearly, from the documents in the file, and the number of appearances, they are likely to be substantial.  Mr Moore has estimated that, if properly costed, those fees and disbursements would total approximately $45,000.  He provided that information to the court with the rider that he would not charge the wife that quantum.  Whatever the wife is charged, there are substantial legal fees that she can hardly afford given she has no savings of assets, save personal possessions and the equity in the N property to which I have already referred.

11. Whilst there are various child support orders made, certainly now applicable to the two younger children, the evidence of the wife in material and that from which she has said under oath today, is that the husband makes no payment of child support, or indeed, any other financial payment towards the welfare or upbringing of any one of the four children of the marriage, all of whom reside with and are supported by the wife.

12. I have carefully evaluated and place significant reliance upon the exhibit “W2”, that is the agreement between the husband and wife, dated 11 January 2007.  Leaving aside moneys to be paid to a Mr C, pursuant to that agreement, it is clear that the husband was to receive and sell two other properties at E, identified therein, and use those moneys to meet his outstanding debts.  The husband also acknowledged, and this is a matter of significance, that he had property in the Philippines.  There is no value given to or, indeed, an address of that property.  I am aware, from reading the material, of the allegations of the marriage of the husband to a Philippine lady and indeed, within the bundle of exhibits to the wife’s affidavit filed earlier this year, is a prenuptial agreement whereby that person, Ms B, abandons any claim to any income or assets of the husband, consequent upon their marriage, which occurred at a time seemingly when the husband remained married to the wife in these proceedings.

13. In any event, the clause of particular assistance in that agreement to which I earlier referred, reads as follows:

    “Contemporaneously, with the execution of this agreement/authority, I have signed a transfer in relation to the property registered in my name at [N], to my wife, [Ms Croydon], and I declare that property now belongs entirely to her”.

    I certainly accept that the husband knew and understood what he was doing under that agreement.  He subsequently filed his material and whilst he generally had denied any and all matters, there is no specific denial of his transfer of the property pursuant to that agreement, notwithstanding he would have it sold and moneys paid to him.  I record that otherwise I have read the affidavit of the wife, both that document filed 27 January 2009 and her earlier documents filed in the Dandenong Registry of this court in support of the initiating application.

14. I am now aware of the wife’s financial circumstances, her employment and her state of health.  I conclude that the only remaining asset of any significance is the equity in the N property.  I further conclude that the parties acquired other property and assets in Australia and indeed it would seem from the material, at one stage they owned or controlled five properties and various businesses.  I do not have any evidence before me as to the source of funds to enable that acquisition of property and those businesses, though I do accept the evidence of the County Court conviction and the imprisonment of the husband for a period of two years over the illegal importation and distribution of goods.

15. I have inquired as to whether there were any claims before the court, and by that I mean as against the husband and wife by the Commonwealth, pursuant to any Net Proceeds of Crime Application.  There is none known to Mr Moore and none of which I am informed and most certainly the wife has given instructions that there is no current claim by any Commonwealth or Government Department against her in respect of her now registered N property.

16. The court is required under section 79 to pronounce an order that is just and equitable when altering the interest of parties in property. I have first examined the evidence and I am satisfied that the only asset of any substance is that of the N property, subject to its mortgage. Insofar as there are personal chattels, furniture and an old motor vehicle, I will not be persuaded to make any order including those assets within the available pool of assets for distribution. I am required by section 79(2) of the Family Law Act 1975 to make only an order which is just and equitable and that I must be so satisfied.

17. I have particular regard to the matters contained in section 79(4) and take into account the financial and non-financial contribution made by each of the husband and wife to the acquisition, conservation and improvement of property.  I have particular regard to subparagraph (c) and the contribution made by the wife as a party to the marriage for the welfare of the family and particularly in her capacity as homemaker and parent.  She is, and has been, the exclusive homemaker and parent for the four children.

18. In determining what is a just and equitable order, and to be considered after reflecting upon and evaluating the section 79(4) contributions, are those section 75(2) matters which are required to be taken in to account?  And in this regard, I have carefully balanced and evaluated subparagraphs (a), (b), (c), (g), (k), (l), (na), and (o) of that subsection.  Overwhelmingly, the financial needs of the wife are paramount, given the remaining asset and her obligation to preserve some equity for her future life and upbringing and support of both herself and the children.

19. The wife lives elsewhere than in the property owned by her and her work income meets the rental income on her domestic residence and thus provides a home for herself and the children.  I am satisfied that a just and equitable order in this case does require an acceptance by the court of the agreement between the parties of 11 January 2007 and for the wife to retain ownership of the N property, subject to the Westpac mortgage.  I have been advised that mortgage is in the name of the husband, but that the Bank is accepting of that scenario and all repayments under the mortgage are up to date.  I am not asked to effect any transfer of that mortgage to the wife’s name.  Indeed, Westpac Banking Corporation has not been notified of any such application, nor has the husband, and it is not sought before the court today.

20. I will not make any lump sum maintenance order to the benefit of the children, either because of jurisdictional reasons or because it is not justified on the facts now before me.  I am satisfied that there is no injustice done to the husband because of his other assets in the Philippines to which he has acknowledged, or otherwise assets that he may have acquired over time from his various business dealings, whatever they may have been.  In any event, I am further satisfied that the husband well knows of the court proceedings.  I accept the evidence of the wife this day that he knew that the matter was before the court and he could have been here, if he had have so chosen to resist the wife’s application or to argue for his payment of 40 per cent of any net assets to him.  This he has elected not to do.

21. I am required to reflect and stand back and consider overall the suitability of this property order and to conclude whether indeed it is just and equitable in all of the circumstances of this case. I have so done and I determine that these orders are just and equitable. These reasons were delivered ex tempore without leaving the bench and on the basis of the filed affidavit material and submissions. I conclude, under section 79(2), the orders are just and equitable.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: