Eliades and Eliades

[2019] FamCA 696

FAMILY COURT OF AUSTRALIA

ELIADES & ELIADES [2019] FamCA 696

FAMILY LAW – PROPERTY – where the matter was undefended – where the respondent has consistently failed to participate in the proceedings – where both the applicant and the respondent have contributed to the mortgage payments and to living expenses throughout the relationship  ̶  where s 75(2) factors favour the applicant –  orders made for a 55/45 division in the applicant’s favour.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Stanford & Stanford (2012) 247 CLR 108

APPLICANT: Mr Eliades

RESPONDENT: Ms Eliades

FILE NUMBER: MLC 13682 of 2018

DATE DELIVERED: 26 September 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 10 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Lakey Family Law and Mediation

RESPONDENT: No appearance

Orders

1. Leave be granted to the husband to proceed with his application on an undefended basis.

2. On or before 4.00 pm on 10 October 2019 the wife pay to the husband the sum of $12,509 (“the payment”).

3. By 4.00 pm on 25 October 2019 the wife do all such acts and things and sign all documents necessary to sell the real property situated at G Street, Suburb B in the State of Victoria, upon such terms and conditions as agreed between the husband and the wife, with the selling agent to be Mr D of C Real Estate, Suburb B (“the sale”).

4. That the sale proceeds be applies as follows:

   (a)       Firstly, to pay the costs and commissions of the sale;

   (b)Secondly, to discharge the mortgage in favour of the National Australia Bank; and

   (c)       Thirdly, the balance to be divided as follows:

   (i)40% to the wife save that, in the event that the wife has not made the payment in accordance with paragraph 2 of these orders, the sum of $12,509 to be deducted from her share and paid to the husband; and

   (ii)60% to the husband plus, in the event that the wife has not made the payment in accordance with paragraph 2 of these orders,  the sum of $12,509 to be paid to the husband out of the wife’s share.

5. That in the event that either of the parties refuses or neglects to execute a deed and/or instrument in compliance with the provisions of these orders, the Registrar or Deputy Registrar of the Family Court of Australia at Melbourne be and is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all deeds and/or instruments in the name of the defaulting party and do all acts and things to give validity and operation to the deeds and/or instruments.

6. That the husband forthwith serve a sealed copy of this order upon the wife by prepaid post addressed to the wife at G Street, Suburb B.

7. That all extant applications be otherwise dismissed and the matter removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

1. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

AND THE COURT NOTES

A.That these orders finally determine all financial relationships between the parties and avoid any further proceedings between them.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eliades & Eliades has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13682 of 2018

Mr Eliades

Applicant

And

Ms Eliades

Respondent

REASONS FOR JUDGMENT

1. The parties in this case were married in 1994 and separated in October 2018 after a marriage of approximately 24 years. On 27 November 2018 the husband filed an Initiating Application seeking orders for the sale of the former matrimonial home at G Street, Suburb B and, after payment of the costs of the sale and the discharge of the mortgage, a division of the proceeds 60/40 in his favour. That application was personally served upon the wife on 9 December 2018.

2. The Initiating Application was listed for a Case Assessment Conference on 15 February 2019. The wife attended the hearing on that date and the wife was ordered to file a Response to the Initiating Application and a Financial Statement by 15 March 2019. The matter was otherwise adjourned for a Conciliation Conference on 9 May 2019. During the course of the Case Assessment Conference the wife disclosed that she had savings of approximately $27,000 and approximately $53,000 in superannuation. As a consequence on 26 March 2019 the husband filed an Amended Initiating Application. In addition to the orders he had sought in his Initiating Application the husband sought orders that any bank account of the parties be divided equally between them and that the wife’s superannuation also be split equally. I am satisfied that the Amended Initiating Application was served upon the wife by prepaid post on 26 March 2019.

3. On 1 May 2019 the husband filed an Application in a Case seeking orders for the immediate division of the funds in the wife’s bank accounts. That application was listed for hearing at the Conciliation Conference on 9 May 2019.

4. The wife did not comply with the order made 15 February 2019 for the filing of documents; she did not attend and was not represented at the Conciliation Conference on 9 May 2019. As a consequence on that date all extant applications were adjourned for hearing in the Registrar’s Directions List on 26 July 2019 and both parties were ordered to appear or be represented on that date. The husband was ordered to file and serve a Further Amended Initiating Application, an affidavit in support of that amended application and a Financial Statement by 14 June 2019. The wife was ordered to file and serve any response, any affidavit in support and a Financial Statement by no later than 19 July 2019. The husband was ordered to serve a sealed copy of that order upon the wife by ordinary post addressed to the respondent at the former matrimonial home. Subject to service of the order and in the event that the wife failed to comply with the order requiring her to appear and/or be represented and to file answering material, the husband have liberty to apply to have any application filed by the wife dismissed and have his application proceed undefended. The husband’s costs were reserved.

5. I am satisfied that the order made 26 July 2019 was served upon the wife as ordered. Although the husband did not file a further amended application, he did file an affidavit which he relied upon at the hearing. He also did not file a further Financial Statement however deposed in that affidavit that his circumstances had not changed since he filed his Financial Statement at the commencement of the proceedings. 

6. The wife did not and still has not filed any answering material and did not appear at the hearing on 26 July 2019. On that date the matter was adjourned for hearing in the Judicial Duty List for a “possible undefended hearing”. The husband was ordered to file and serve any further material upon which he seeks to rely by 27 August 2019 and again ordered to serve a copy of that order upon the wife. Once again I am satisfied that the order was served upon the wife, together with a letter advising the wife that the husband would be seeking “undefended orders at the upcoming hearing”, that the solicitor for the husband would welcome the wife contacting her to discuss the matter, and encouraging her to obtain legal advice.

7. I am satisfied that the wife is aware of the hearing before me in the Judicial Duty List and that the husband would be asking the Court to make final property orders on an undefended basis. The wife was called, did not appear and was not legally represented.

8. Pursuant to Rule 11.02(c) of the Family Law Rules 2004 (Cth) the Court may determine a matter as if it were undefended if a party has not complied with the Rules, the Regulations or a procedural order. That is the basis of the husband’s application that the Court should deal with his Amended Initiating Application as an undefended matter. It is the main purpose of the Rules to “...ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case” (r 1.04) and the Court applies the Rules in order to promote that purpose, actively managing the cases it deals with. I am satisfied that in this case the wife has been given ample opportunity to participate in the proceedings and has chosen not to do so, repeatedly failing to comply with procedural orders made by the Court. The husband is entitled to have his Amended Initiating Application heard and determined and in all of the circumstances I propose to deal with that application on an undefended basis.

9. The Court must be satisfied that it is just and equitable to make orders adjusting the parties’ legal and equitable interests in property. As referred to in Stanford & Stanford (2012) 247 CLR 108 there are many cases in which that requirement is readily satisfied. This is such a case. The parties were married for some 24 years and it is reasonable to infer that the financial arrangements they made during their marriage are no longer suitable particularly in circumstances where their most significant asset, the former matrimonial home, is occupied by the wife and is in her name. In circumstances where the Court is satisfied that it is just and equitable to make orders adjusting the parties interests in property it must, having identified those interests, make such orders it considers proper, having regard to the matters it is required to consider in s 79(4) of the Family Law Act 1975 (Cth).

10. The first step is to identify the property pool. This is a relatively simple exercise in this case, save and except with respect to the wife’s superannuation, as the only significant asset is the former matrimonial home which is registered in the wife’s name. The husband is proposing a sale of the property and in these circumstances tendered and relied upon a market appraisal of the property prepared by Mr D of “C Real Estate”. He is the agent the husband proposes should be appointed to sell the property. According to Mr D the property is valued at between $640,000 and $690,000.

11. The wife having told the Registrar at the Case Assessment Conference that she had savings of $27,000 and $53,000 in superannuation, the husband’s solicitor issued a subpoena to the National Australia Bank (“NAB”) and attempted to verify the wife’s superannuation entitlements. The documents produced by NAB pursuant to subpoena showed the wife as at 5 April 2019 as having a number of accounts with minimal balances and one account with a balance of $25,019. The NAB also produced documents with respect to the mortgage over the former matrimonial home disclosing a mortgage balance of $160,936 as at 5 April 2019.

12. Despite making enquiries of various superannuation funds, the husband’s solicitor was unable to identify the fund in which the wife’s superannuation entitlements are held and on that basis did not pursue a superannuation splitting order. 

13. The asset pool is therefore as follows:

    Husband

Property description	Value
Motor Vehicle 1	$7,500

Wife

Property description

Value

G Street, Suburb B

E$665,000

NAB Mortgage (E$160,936)

Equity: E$504,064

NAB Account ending 4299

E$25,019

Superannuation

E$53,000

NET ASSET POOL (INCLUDING SUPERANNUATION)

E$589,583

1. In his affidavit filed 14 June 2019 the husband deposed to the history of the marriage, the parties respective contributions and the evidence based upon which he put his case with respect to the relevant s 75(2) factors. That evidence is unchallenged. It was his evidence that neither he nor the wife owned any property at the time of the marriage. They lived with their respective parents at various times during the marriage and in the mid 1990’s purchased a property in the wife’s name in Suburb F. This property was sold in or about 2013 for $360,000 and the proceeds of sale applied to the purchase of the former matrimonial home.

2. During the marriage the husband was employed in a service industry and also worked for a transport company between approximately 2002 and 2010. He said that he gave his wages to the wife and she paid their bills. The wife worked on an off in the beauty sector and the husband says he and the wife shared the care of their daughter and the housework. The husband also deposed that although the two real properties acquired during the marriage were registered in the wife’s name and she paid the deposit when they were purchased, she did so using savings in her name that came from their joint efforts.

3. It is the husband’s evidence that he suffered an injury in 2006 and although he had surgery it was unsuccessful. In 2015 his claim for a Total and Permanent Disability payment (“TPD payment”) was successful and he received $151,800 after costs. Of that amount he says he used $15,800 to purchase a car, which he still owns, he spent approximately $110,000 on renovations to the former matrimonial home and gave their daughter $5,000. The husband deposes that he has none of the TPD payment left, has not worked since 2010 and has been receiving a disability pension since January 2011. He currently receives $445 per week. It is his case that he continues to have health issues and is unable to work and unlikely to ever be able to do so. Although the husband deposes that the wife is not currently working, it is his evidence that she has no health issues that would preclude her doing so.  

4. The husband seeks orders for the sale of the former matrimonial home and that after payment of the costs and repayment of the mortgage he receive 60 per centum of the net proceeds of sale and the wife the balance. He further proposes that the balance in the NAB account ending 4299 be divided equally. It is his proposal that the parties otherwise retain the assets in their possession. In circumstances where the husband is not seeking a splitting order, the wife would retain her superannuation entitlements.

5. I am satisfied that the husband and the wife’s contributions during the marriage, with the exception of the husband’s TPD payment, were equal. Although it is reasonable to infer that at least some part of the husband’s TPD payment is referable to his future needs, there is no evidence based upon which I can determine to what extent that might be or in those circumstances how much of that TPD payment should be treated as a contribution referable to the husband.  I am also satisfied based upon the evidence before me that the s 75(2) factors favour the husband’s case in circumstances where he is unlikely to ever work again and has depleted his TPD payment, whereas the wife does not have any health issues that would preclude her obtaining employment and has superannuation entitlements, based upon what she told the Registrar at the Case Assessment Conference, of approximately $53,000.

6. The orders the husband proposes, taking the midpoint of Mr D’s valuation of $665,000, result in the husband receiving or retaining assets with a value of approximately $322,448, less any selling costs.  This includes his car and half of the funds in the NAB account in the wife’s name. This amounts to just under 55% of a total pool of approximately $589,583.

7. I am satisfied that in this case it is just and equitable to make orders adjusting the parties’ property interests and that, having regard to the parties’ respective contributions and the s 75(2) factors, it is proper to make the orders the husband seeks. Although I propose to make an order requiring the wife to pay the husband the sum of $12,509, being half of the funds in her NAB account ending 4299 (“the payment”), in order to avoid the need for further proceedings I propose to make an order that if the wife has not made the payment, the husband be paid out of the wife’s share of the proceeds of sale of the former matrimonial home.   

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 26 September 2019.

Associate:

Date:  26 September 2019