Dean and Dean

[2007] FamCA 341

FAMILY COURT OF AUSTRALIA

DEAN & DEAN [2007] FamCA 341

FAMILY LAW - CONSENT ORDERS – Registrar declines to make orders where Rules not complied with – Disparity in contribution

APPLICANT: MRS DEAN

RESPONDENT: MR DEAN

FILE NUMBER: MLC 1550 of 2007

DATE DELIVERED: 11 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11 April 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Lopes, Solicitor, of Westminster Lawyers of Melbourne

SOLICITOR FOR THE RESPONDENT: There was no appearance by or on behalf of the Respondent

Orders

1. There be orders by consent of the parties in the terms of the minutes which I will mark exhibit A.

2. I direct that the original minutes remain on the court file.

3. I direct that the submissions of the wife be marked exhibit B and those submissions remain on the court file.

4. I order a transcript of the whole of these proceedings this day be obtained and be placed on the court file.

5. I dismiss all outstanding proceedings and remove them from the list of cases awaiting hearing.

6. I order that the solicitors for the wife engross the minutes, not the orders, and transmit them by electronic means, namely email, to my associate in accordance with the document that I will now give them.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1550 of 2007

MRS DEAN

Applicant

And

MR DEAN

Respondent

REASONS FOR JUDGMENT

1. In this matter I am asked to make orders by consent of the parties in circumstances where a registrar on 7 March declined to make orders in chambers. The registrar made a note that she was not satisfied that the orders were just and equitable within the provisions of the Family Law Act given the contradictory statement of the parties in relation to their contributions.

2. Before me today I have not had the benefit of hearing from the husband whom I am told is in China.  For safety reasons I had him called and there has been no appearance.  After discussion with Mr Lopes on behalf of the wife, I have been told that she understands the commercial realities of proceeding on the basis of the material that was included in the form 11 document that was filed on 13 February.

3. The interesting feature of this case is that there are very clear assertions, not only in that document but also in some written submissions which I will leave on the court file, about the fact that the husband has been less than forthright in relation to moneys that he has taken from the marriage.  Although it is not clearly spelt out in the document I have been told from the bar table that the husband spent significant sums of money on women in overseas countries.

4. The dispute between the parties about that seems to be within the vicinity of between $50,000 and $200,000.  My concern was the fact that if the matter proceeded on an undefended basis, then in the event that something occurred in the future that clarified exactly what the husband's true financial position was, then there may be a prospect of an application under section 79A.

5. However, having regard to the fact that the parties are asking me to determine the matter on what they have presented to the court, I am concerned that the wife had to understand that she was effectively closing off an option in the future on the basis that she could not then allege that there had been a miscarriage of justice in respect of the process.

6. The problem arises because of the modest asset pool that the parties have and the unknown amount of money would significantly affect that bottom line of the pool.  Needless to say the wife had given instructions to Mr Lopes today to proceed on the basis that she realises what her difficulty is and wants the matter brought to an end.  I have indicated that I will give some brief reasons and that a transcript of these reasons will be left on the court file.

7. It also transpires that notwithstanding the husband is not here today he is at least aware of the proceedings on the basis that he received a letter from the court dated 7 March 2007 indicating that the matter would be placed in the judicial duty list and it was in fact received by him apparently prior to the solicitors for the wife becoming aware of it and he in fact brought it to the attention of the wife.

8. Accordingly, I am prepared to deal with the matter on the basis of the material before me.  This is a case in which the parties commenced living together in February 1989, married in August 1991, and separated in June 2003, a relationship of over 14 years.  There are no children of the marriage.  The wife is aged 59 years and the husband is aged 61 years.  The wife is in part‑time employment and although precise details of the husband's current position are a little unclear it would seem that he is an engineer by profession.

9. In terms of the pool of assets I noted that the form 11 set out that the parties had between them to divide a total sum of $652,000 or thereabouts.  In the written submissions of Mr Lopes on behalf of the wife today, the pool has shrunk by a little less than $10,000, making it $642,000, and having regard to the difference between the two I am not troubled.

10. What is clear though is that when the parties divide up that pool the wife receives something in the vicinity of $516,000 out of $652,000, and the husband receives $33,000.  That may have been the major reason why the registrar declined to make the orders.  However, in respect of the second of the four‑step process relating to the contribution of the parties, I am told that at the commencement of the relationship, albeit 14 years ago, the wife brought in $200,000 which was in the form of cash and then converted into shares, and ultimately in the late 1990s converted into what is now real property.

11. It is likely, although somewhat unclear, that the net result of the sale of the shares increased the contribution from beyond the $200,000 mark.  It is clear that is a significant contribution in a relationship of this nature.[1]  I am told that both parties worked during their relationship, albeit in different occupations and at different capacities.  But it is asserted in the form 11 document that the wife was the homemaker and in her words she did "nearly all" of those matters and, ironically enough and perhaps unusually, the husband agrees.  On the basis, therefore, of those facts it would be hard to see how anyone could argue other than that the wife's contribution is significantly greater than that of the husband.

    i)[1] Pierce (1998) FLC 92.844

12. The third of the three steps requires me to look at the factors set out in section 75(2) of the Family Law Act as it applies to each party. I have thought of each of the issues set out in that provision but what is abundantly clear on the document before me is that the husband's earning capacity is significantly greater than the wife. He asserts that he earns over $70,000 as an engineer, and the wife, on a part‑time basis, significantly less. Balancing up that, however, is the fact that the wife will have the major portion of the assets. However, both parties are in the twilight years of their working life, the husband being 61 and the wife being 59. For whatever reason the husband has chosen not to say any more than what he has in the form 11, and on the basis of the third step I would still be satisfied that there is some justification for a loading in favour of the wife.

13. Ultimately, I have to decide whether or not the outcome of these proceedings in the division is just and equitable.  In this case I am prepared to say that it is.  I do that for a number of reasons.  The first is that I have set out the path by which I would have travelled to get to the end result, and whilst I would not necessarily have come to the same conclusion that the parties did, it would be clear that there is a significant loading in favour of the wife.

14. The second reason is that attached to the form 11 document is an affidavit by each party swearing that the contents of the document are true, but also that the orders are agreed upon by all parties. Turning specifically to the affidavit of the husband, he has crossed the various boxes in that affidavit and two of them are of some significance to my determination. The first is that he concedes that he has had independent legal advice in respect of his relevant rights under the Family Law Act and, more importantly, the effect and consequences of the orders being made in the terms proposed. The second is that he has said that he has read and considered sections 72, 79 and subsection (2) of section 75 and, in respect of the superannuation interests, Part VIIIB of the Family Law Act.

15. Whilst one might take a jaundiced view of that affidavit, I do not have any evidence to suggest that it is other than correct.  I do not have a statement of independent legal advice but I do not trouble myself with that because of the fact that the husband swears to the fact that he has had the independent legal advice.  Having regard to the fact that he has had that advice and understands the process that I have just walked through, I am quite satisfied that his consent is a proper one and one that would be almost unimpeachable should he ultimately return and seek an application to set aside the orders under section 79A on the basis of the procedure that I am now following not being an appropriate one creating a miscarriage of justice.

16. In all of the circumstances I am quite satisfied that these are orders that are just and equitable in the circumstances and I propose to make them.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DEAN & DEAN