Devesh & Devesh

[2007] FamCA 1398

FAMILY COURT OF AUSTRALIA

DEVESH & DEVESH [2007] FamCA 1398

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Superannuation

Family Law Act 1975 (Cth)

APPLICANT: Mrs Devesh

RESPONDENT: Mr Devesh

FILE NUMBER: DGF 687 of 2004

DATE DELIVERED: 14 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 14 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Melita

SOLICITOR FOR THE APPLICANT: Duffy & Simon

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1A.            That paragraph 3 of the Orders of 2 October 2007 shall be and is hereby discharged.

1. The Wife shall be at liberty to collect from the Husband or his servants or agents, and retain for her sole use and benefit the Commodore motor vehicle registration number … registered in the Wife’s name.

1. That the Wife retain the Toyota Corolla motor vehicle registration number … registered in the name of the Husband.

1. That paragraph 4 and 5 of these Orders are binding on the Trustee of the G Superannuation Fund (“the Fund”).

1. That the base amount allocated to the Wife out of the interest of the Husband in the Fund is $51,607.49 (“the base amount”).

1. Pursuant to section 90MT(1) (A) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the Husband in the Fund the Wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount (provided that such base amount shall not exceed the value of the interest determined under section 90MT(2) and there be a corresponding reduction in the entitlement of the Husband.

1. That Order 4 and 5 of these Orders have effect from the operative date.

1. The operative date for the purpose of these Orders is four (4) business days after the date of service of Final Sealed Orders upon the Trustee of the Fund.

1. That until such time as the superannuation split to the Wife pursuant to these Orders can be rolled over into a separate account to the Wife:

(a)the Husband will give to the Wife written notice not less than 28 days before such time as he elects to retire from and/or take voluntary retirement and/or for any reason except to become entitled to access in whole or in part his entitlement to the fund;

(b)the Fund to communicate with the Wife and/or the person authorised by her in writing:

(i)     to answer any reasonable inquiries made by her on her behalf from time to time regarding her entitlement in the Fund;

(ii)    to give the Wife and/or her authorised representative a copy of any notice of any application or request by the Husband which seeks release of entitlements in the Fund insofar as that release may effect the Wife’s entitlements in the Fund pursuant to these Orders.   

(c)    The Husband be and is restrained by himself, his servants or agents from:

(i.)     doing any act or which would prevent the Wife her heirs, executors, administrators or nominees form receiving the benefits in the Fund to    which she is entitled pursuant to these Orders;

(ii.) executing a death benefit nominated in favour of any person or doing any other act or anything which would render any part of his interest in the Fund a “non-splittable payment” within the meaning of regulation 12 and 13 of the Family Law (Superannuation) Regulations 2001.

1. In the event that the superannuation split to the Wife pursuant to these Orders can be rolled over into a separate account to the Wife each of the parties shall do all things and acts and execute all such documents as may be necessary to facilitate and implement that roll over.

1. That the monies held in the Wife’s Solicitors trust account in the names of the parties shall forthwith be released to the Wife;

1. That the Husband pay to the Wife the sum of $1,760.00 pursuant to paragraph 7 of the Orders made by His Honour Justice Mushin on 5 April 2007 in relation to the Wife’s costs of the application filed on 19 March 2007.

1. That the Husband also pay the following costs to the Wife:

(a)     The sum of $730.00 in relation to the proceedings on 1 July 2005;

(b)    The sum of $730.00 in relation to the proceedings on 22 March 2007; and

(c)    The sum of $1,760.00 in relation to today’s proceedings.

1. That my reasons for judgment given this day shall be transcribed and retained on the Court file.

1. That otherwise all existing Applications shall be dismissed and the case removed from the list of cases awaiting finalisation.

1. That the Wife’s Solicitors shall forward by prepaid post a sealed copy of these Orders to the Husband’s address for service.

1. The preparation of these Orders shall be expedited.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 687 of 2004

MRS DEVESH  

Applicant

And

MR DEVESH  

Respondent

REASONS FOR JUDGMENT

1. This case has had a long history in the court, starting in 2004.  I made final undefended children's orders on 2 October 2007.  Today I am dealing with the undefended final property proceedings. 

2. The parties were married for 11 years.  They have a 13‑year‑old girl and a 10‑year‑old boy.  Both children live with their mother.  They see their father on alternative weekends and on holidays, but he does seem to spend some extended times out of the country.  At the moment it appears that he is in Sri Lanka.  The mother has remarried and she has a one‑year‑old child with her current husband.  She is aged 37.  The husband in these proceedings is aged 41.

3. When the matter was before me previously on 2 October 2007, I made orders for further service on the husband.  I am now satisfied that he has been served with up‑to‑date documents at not only his notice of address for service, but also in Sri Lanka at his mother's address the wife having said last time that she believed he was staying there whilst in Sri Lanka. 

4. I am satisfied by the documents that have been tendered today that not only have all appropriate documents been sent to that Sri Lankan address but they have been properly delivered.  The wife, either herself or through her solicitors, has heard nothing from the husband since then.  He has not appeared today.  He did not appear last time when the matter was before me.  I am told that the case has a history of him failing to appear, failing to co-operate, and failing to produce material or make disclosures as requested. 

5. The wife today seeks orders in accordance with her Amended Application filed 10 September 2007, with some amendments that are simply occasioned by the superannuation trustee's response to the proper notice, given following my orders of 2 October 2007.  Whereas the wife had sought 100% of the husband's superannuation, the trustee has requested that a precise dollar amount be put in place for the splitting order.  That is the alteration that has been made.  I am satisfied that the husband has been duly advised.

6. There are four steps for me in a property case.  I must determine the pool of assets and liabilities.  I must consider each party's contribution, both financial and non‑financial, direct and indirect.  I must look at the s 75(2) and various other aspects set out in s 79 of the Family Law Act.  Finally, I must arrive at a decision that is just and equitable in all the circumstances. 

7. I will deal first with the pool of assets.  As I have already noted, there has been some difficulty in ascertaining the pool due a continuing lack of co-operation by the husband.  In any event, this much is clear.  There is $7750 in a solicitor's trust account remaining from the sale of the former matrimonial home in early 2006.  There is a $1000 motor vehicle that the wife retained at separation, a Toyota Corolla.  That is no longer in working order but is properly included in the pool.  There is a $20,000 Holden Commodore registered in the wife's name.  It was retained by the husband at separation, and the wife does not know where it now is.  There were chattels retained by the husband that, arising from his Form 13 statement, have been included in the pool at $2000.  That is a total of $40,750 in available assets.

8. There is also the parties' superannuation.  The husband's superannuation is presently $51,607, the wife's $2500.  The combined total is thus $54,107. 

9. The wife has sought a $135,000 add‑back to the pool of assets, and I agree that that sum should be added back. The former matrimonial home has been included in the pool at $279,250, but only $7750 remained once the mortgage was paid.  The mortgage though at separation was only $119,855.  Accordingly, the equity in the property would have been $159,395.  Together with the two motor vehicles, the parties' assets at that point were $182,395 and their combined superannuation was about $34,000. 

10. What the wife has sworn to in her affidavit material is that after the separation in November 2003, it came to her attention that the husband had taken out a second mortgage over the former matrimonial home without her authority or knowledge.  She brought interim proceedings and Wilczek J made orders on 17 September 2004, including orders that the husband indemnify the wife in relation to the second mortgage and that he make all payments in relation to the mortgage.

11. A number of things transpired after that order.  First, the husband rented out the former matrimonial home and it was ascertained by the wife that he was keeping the rent.  He was ordered to pay the rent to a joint account, but he did not do that.  In addition, despite orders to the contrary, he withdrew a further $65,000 against the second mortgage in early 2005.  The mortgage escalated from $50,000 to $114,000.  In fact by the time the property was sold and settled the second mortgage stood at $121,773. 

12. The add‑back of $135,000 is arrived at in this way. The sum of $121,773 represents the husband's second mortgage loan at the point of settlement and $13,268 relates to an increase in relation to the first mortgage, because the husband, contrary to his responsibilities, had not kept up the payments in relation to the first mortgage.  Once that sum is added back the asset pool is $165,791, with superannuation of $54,000‑odd.

13. I turn now to contributions.  The wife urges me to make a finding of equal contributions, saying that they started the marriage as a young couple with virtually no assets.  In the first year of marriage the husband studied while the wife worked.  After that, they both worked until the children were born.  Then the husband continued working, and the wife continued looking after the children, and she worked part‑time.  I am satisfied, in the absence of any argument to the contrary, that a fair summation of their contributions is that they made different but equal contributions. 

14. I will deal then with the s 75(2) and other considerations.  I have noted the parties' ages.  The wife has three children that she is supporting.  Her new husband is on Centrelink benefits and she is also not in paid work. The husband in this case earns about $49,700 per annum with G Company.  He has been paying child support, but there has been a profound and sudden decrease in the assessment, for reasons that the wife is not quite sure about.  It reduced from $230 per fortnight to $114 per fortnight in June 2007, and in August 2007, it reduced further to $12.67 per fortnight.  That is something that the wife will and must pursue. 

15. If the wife now receives the two cars, the $7000‑odd in trust and the superannuation in accordance with the splitting order, she would receive $84,800 out of a total available pool of $219,900.  That is about 37% overall.  Counsel for the wife has taken the realistic view that, although it is less than the amount the wife might otherwise be entitled to receive, there are simply no other assets from which she can recover monies. Accordingly, in those circumstances, I do find that the orders as sought are just and equitable. 

16. I will turn to the proposed orders.  I will make orders as follows:

    1A.That paragraph 3 of the Orders of 2 October 2007 shall be and is hereby discharged.

1.    The Wife shall be at liberty to collect from the Husband or his servants or agents, and retain for her sole use and benefit the Commodore motor vehicle registration number […] registered in the Wife’s name.

2.    That the Wife retain the Toyota Corolla motor vehicle registration number […] registered in the name of the Husband.

3.    That paragraph 4 and 5 of these Orders are binding on the Trustee of the [G] Superannuation Fund (“the Fund”).

4.    That the base amount allocated to the Wife out of the interest of the Husband in the Fund is $51,607.49 (“the base amount”).

5. Pursuant to section 90MT(1) (A) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the Husband in the Fund the Wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount (provided that such base amount shall not exceed the value of the interest determined under section 90MT(2) and there be a corresponding reduction in the entitlement of the Husband.

6.    That Order 4 and 5 of these Orders have effect from the operative date.

7.    The operative date for the purpose of these Orders is four (4) business days after the date of service of Final Sealed Orders upon the Trustee of the Fund.

8.    That until such time as the superannuation split to the Wife pursuant to these Orders can be rolled over into a separate account to the Wife:

(a)    the Husband will give to the Wife written notice not less than 28 days before such time as he elects to retire from and/or take voluntary retirement and/or for any reason except to become entitled to access in whole or in part his entitlement to the fund;

(b)    the Fund to communicate with the Wife and/or the person authorised by her in writing:

i.to answer any reasonable inquiries made by her on her behalf from time to time regarding her entitlement in the Fund;

ii.to give the Wife and/or her authorised representative a copy of any notice of any application or request by the Husband which seeks release of entitlements in the Fund insofar as that release may effect the Wife’s entitlements in the Fund pursuant to these Orders.

(c)    The Husband be and is restrained by himself, his servants or agents from:

i.doing any act or which would prevent the Wife her heirs, executors, administrators or nominees form receiving the benefits in the Fund to            which she is entitled pursuant to these Orders;

ii.executing a death benefit nominated in favour of any person or doing any other act or anything which would render any part of his interest in the Fund a “non-splittable payment” within the meaning of regulation 12 and 13 of the Family Law (Superannuation) Regulations 2001.

9.    In the event that the superannuation split to the Wife pursuant to these Orders can be rolled over into a separate account to the Wife each of the parties shall do all things and acts and execute all such documents as may be necessary to facilitate and implement that roll over.

10.    That the monies held in the Wife’s Solicitors trust account in the names of the parties shall forthwith be released to the Wife;

11.    That the Husband pay to the Wife the sum of $1,760.00 pursuant to paragraph 7 of the Orders made by His Honour Justice Mushin on 5 April 2007 in relation to the Wife’s costs of the application filed on 19 March 2007.

12.    That the Husband also pay the following costs to the Wife:

(a)    The sum of $730.00 in relation to the proceedings on 1 July 2005;

(b)    The sum of $730.00 in relation to the proceedings on 22 March 2007; and

(c)    The sum of $1,760.00 in relation to today’s proceedings.

13.    That my reasons for judgment given this day shall be transcribed and retained on the Court file.

14.    That otherwise all existing Applications shall be dismissed and the case removed from the list of cases awaiting finalisation.

15.    That the Wife’s Solicitors shall forward by prepaid post a sealed copy of these Orders to the Husband’s address for service.

16.    The preparation of these Orders shall be expedited.

DISCUSSION

1. Let me make a couple of other alterations to the orders and I will only leave the costs issue to be determined. One of them is I will add an order that my reasons for judgment given this day shall be transcribed and retained on the court file.  I will make another order that, otherwise, all existing applications shall be dismissed and the case removed from the list of cases awaiting finalisation.

2. That the wife's solicitors shall forward be prepaid post a sealed copy of these orders to the husband's address for service.  I will expedite the orders so that the wife has also got them in terms of trying to get the car back. 

3. I have not made order 13, I would need to know more about it.  The only costs order that I will make at this point for sure is 11 because the wife's solicitor tells me all that is doing is reiterating an order that has been made.  If she is seeking costs for any other days, she will need to let me know what days, how much, how she arrives at that and why. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date:  14 November 2007