Foh & Taishu

[2021] FCCA 1456

FEDERAL CIRCUIT COURT OF AUSTRALIA

Foh & Taishu [2021] FCCA 1456

File number:

MLC 3227 of 2021

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

21 June 2021

Catchwords:

FAMILY LAW – parenting and property – undefended hearing – where applicant wife seeks matter to proceed undefended – where respondent husband has not participated – parental responsibility – sale of property – wife’s solicitor appointed to execute documents – final parenting and property orders made.  

Legislation:

Family Law Act 1975 (Cth) ss 75, 79, 80(1)(k), 106A.

Cases cited:

AON Risk Services Limited v Australian National University (2009) 239 CLR 175

In the marriage of Black & Kellner (1992) FLC ¶92-287

In the marriage of Weir and Weir (1993) FLC ¶92-338

Number of paragraphs:

60

Date of hearing:

21 June 2021

Place:

Melbourne

Solicitor for the Applicant:

Ms Q Tai of Tao Jiang Lawyers

The Respondent:

No Appearance

ORDERS

MLC 3227 of 2021

BETWEEN:

MS FOH

Applicant

AND:

MR TAISHU

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	21 JUNE 2021

THE COURT ORDERS THAT:

Parenting Orders

1.The Applicant Wife, Ms Foh ('the Applicant Wife') has sole parental responsibility for the child X born in 2015 ("the child") save for responsibility for changing the child's name, which remains a joint responsibility.

2.The child live with the Applicant Wife.

3.The Applicant Wife be and is the only person with 'parental responsibility' of the child for the purposes of renewing for and being issued with, an Australian passport for the child.

4.The Respondent Husband, Mr Taishu ('the Respondent Husband') is at liberty to telephone the Applicant Wife at any reasonable times that he may wish to do so to request to spend time with the child as agreed between the Applicant Wife and the Respondent Husband.

Property Orders

B Street, Suburb C, WA

5.The Applicant Wife be and is authorised by this Order to sign for and on behalf of the Applicant Wife and the Respondent Husband and where applicable in the name of the Respondent Husband, Mr Taishu, any contract, discharge of mortgage, transfer or other Landgate documents necessary to give effect to the immediate sale of the property located at B Street, Suburb C in the state of Western Australia, more particularly described as Certificate of Title Volume … Folio … ("The B Street, Suburb C Property") ("The B Street, Suburb C Sale") by auction or by private sale as recommended by the Applicant Wife's nominated selling agent.

6.That the proceeds of the B Street, Suburb C Sale be applied as follows:

(a)firstly, to pay all costs, commissions and expenses of the B Street, Suburb C Sale;

(b)secondly, to discharge the mortgage registered over the B Street, Suburb C Property;

(c)thirdly, to pay the balance to Tao Jiang Lawyers' trust account to be held on behalf of the Applicant wife ("the Trust Funds")

D Street, Suburb E, WA

7.The Applicant Wife be and is authorised by this Order to sign for and on behalf of the Applicant Wife and the Respondent Husband and where applicable in the name of the Respondent Husband, Mr Taishu, any contract, discharge of mortgage, transfer or other Landgate documents necessary to give effect to the immediate sale of the property located at D Street, Suburb E in the state of Western Australia more particularly described as Certificate of Title Volume … Folio … ("The D Street, Suburb E Property") ("The D Street, Suburb E Sale") by auction or by private sale as recommended by the wife's nominated selling agent

8.The proceeds of the D Street, Suburb E Sale be applied as follows:

(a)firstly, to pay all costs, commissions and expenses of the D Street, Suburb E Sale;

(b)secondly, to discharge the mortgage registered over the D Street, Suburb E Property;

(c)thirdly, if there is any shortfall in relation to the mortgage payout of the D Street, Suburb E Property, the shortfall is to be paid from the trust funds held by Tao Jiang Lawyers for the Applicant Wife.

(d)Fourthly, to pay the balance to Tao Jiangs Lawyers' trust account to be held on behalf of the Applicant Wife

9.All and any remaining funds from the proceeds of sale of the B Street, Suburb C Property and the D Street, Suburb E Property be paid to the Applicant Wife. 

10.The outstanding legal fees of the Applicant Wife be paid from the funds held on her behalf by Tao Jiang Lawyers;

11.The parties do all such acts and things and execute any documents reasonably necessary to give effect to these Orders and should the Respondent Husband fail to execute any document within 7 days of their being so requested, then pursuant to Section 106A of the Family Law Act 1975, the Applicant Wife's solicitor Ms Qing Yi Tai be and is hereby appointed and authorised to sign any such documents in the name of and on behalf of the Respondent Husband, Mr Taishu.

12.Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

(a)Each party be solely entitled to the exclusion of the other to all property (including chose in action) in the possession of such party as at this date.

(b)Any money standing to the credit of the parties in a joint account be divided equally between the husband and the wife. Within 14 days from the date of the orders, the parties must do all acts and things and sign all documents as maybe necessary to close all bank accounts in their joint names.

(c)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or owned by the other.

(d)All insurance policies to become the sole property of the beneficiary named therein.

(e)Each party to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

13.The Applicant Wife have liberty to apply in regards to any difficulty with the sale of either or both properties.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled reasons of an ex tempore decision.  In this matter, the first question I must determine is whether the application brought by the Applicant Wife, Ms Foh (‘the Wife’) should proceed by way of final orders, this day, undefended, in the circumstances where the Respondent Husband, Mr Taishu (‘the Husband’), has not filed any document or attended Court on any of the three occasions, including today, that the matter has been listed. 

2. If I determine to proceed undefended, I must then determine what property orders should be made, pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’) and what orders should be made relating to the welfare of the parties' child, X (‘the child’), who is now five years of age and will be six this year.

3. The parties commenced cohabitation in about 2009.  They married in 2015 and separated in January 2020.  In this matter, I accept the evidence as set out in the Wife's affidavits filed in the proceedings.  The Wife relies upon an amended initiating application only filed over the weekend on 19 June 2021, a financial statement filed when the proceedings commenced on 24 March 2021, an affidavit filed on 24 March 2021, an affidavit filed on 14 May 2021, as well as an affidavit filed over the weekend.

4. The Wife had filed an initiating application on 25 March 2021, wherein she sought final parenting orders and final property orders, but with the details, or particulars of those orders, not being set out. The Wife sought detailed interim orders in that initiating application, and in particular, detailed orders relating to the urgent sale of the parties' properties, known as the ‘D Street, Suburb E Property’, and the property known as the ‘B Street, Suburb C Property’, both in the state of Western Australian. In addition, in that application, an order said to be pursuant to section 106A of the Act was also sought in the event that the Husband failed to execute any necessary document to give effect to those sales.

5. I will firstly address the issue of how and the extent to which the proceedings have been brought to the Husband's attention.  The circumstances of separation and the Wife's contact with the Husband since separation are relevant to this issue, as are the general circumstances of the parties.  The Husband is a professional and the Wife is a hospitality worker.  The Husband is 35 years old and the Wife is 38 years old.  The Husband came to Australia as a student in 2009 and obtained permanent residency in 2013.  The Husband has worked as a professional for a major company.  The Wife came to Australia as a student in 2008 and became a permanent resident in 2013.  The parties cohabited from 2009 and in 2015 were married in Perth, Western Australia.

6. Their child was born in 2015 in Perth, and is currently five years of age.  The parties' separated on 14 January 2020 following the intervention of the Victorian Police, where the parties were then residing.  The Wife asserts, and I accept, that in the months prior, the parties' joint account had been emptied of funds by the Husband.  The Husband had sold the parties' motorcar which had been purchased for about $68,000 for the sum of $46,500 and transferred that money to a bank account in China

7. On 14 January, the parties had a heated dispute about possession of the child's passport and whether the Husband would be permitted to take the child to China, from where the parties had emigrated, without the Wife.  The Wife asserted that she attempted to call triple 000, but that the Husband removed her phone from her.  Neighbours had reported that the Wife had been banging on the upstairs window and requested that the police be called.  The police attended and they located the Wife's telephone in the Husband's pocket.  At that time, she stated that she had been unable to contact the police and unable to leave the room.

8. Victoria Police issued a safety notice on 14 January 2020 and that was what ended the parties matrimonial relationship.  Since that day on 14 January 2020, the Husband has only spent about one hour of time with the child.  The Husband told the Wife that he wished to speak to the child before flying back to China.  The Husband attended the former matrimonial home on 24 January 2020 and, with the agreement of the Wife, spent one hour with the child in the company of the Wife's mother.

9. The Wife asserts that, to the best of her knowledge, the Husband took a flight back to China on the same day.  The Wife asserts that the Husband said to her that he would call the child after leaving Australia and the wife says that she agreed.  However, the Husband has never contacted the Wife.  The Wife has attempted to contact the Husband or reach out to him but he has never returned any of the Wife's calls or messages.  The other matter that is relevant to whether the matter should proceed undefended is that the parties were at the time of separation joint tenants or joint owners of two properties in Western Australia.

10. The parties purchased the D Street, Suburb E Property in or about January 2015 and borrowed the whole of the funds to do so.  They were able to make that purchase because they were the owners of a property they had purchased in 2013 at Suburb F.  That property had been purchased for about $560,000 with the benefit of all of the purchase price and more being borrowed by the Wife from her parents.  Ultimately, the Suburb F property was sold in or about 2017 and part only of those funds were used to reduce the mortgage on the D Street, Suburb E Property and it would appear part applied to reduce the indebtedness of the Wife to her parents.  However, the property has been vacant without a tenant since January 2020 and the mortgage to the G Bank has not been paid since that time.

11. Prior to separation, the Husband had managed that property.  At the time of separation and since the Wife does not even have the keys to the property.  The Husband has not authorised the Wife to deal with that property or deal with the real estate agent or a property agent but the mortgage is in significant arrears and in default.  The mortgagee is pressing for the sale of the property.  The parties had purchased another property in 2016 known as the B Street, Suburb C Property in the sum of about $750,000.  The parties contributed about $250,000 towards the purchase of that property and the balance of about $530,000 was met with a loan from the Commonwealth Bank.

12. The parties moved to Melbourne at the end of 2017 and the B Street, Suburb C property was rented out thereafter.  Fortunately, the rent on the B Street, Suburb C property was sufficient to pay the mortgage payments. 

13. After the Husband had left the country, the Wife was able to obtain the deferment of the mortgage payments in regard to the B Street, Suburb C property.  However, that deferral ended in January of 2021 and the Wife has received letters from the mortgagee pressing for repayments of the arrears of that mortgage.  After leaving the country, the Husband on occasions, instead of applying the rental to the mortgage, applied those funds for his own purposes in a bank account not known to the Wife and she presumes in China.

14. As at March 2021, the Wife's circumstances were that she had not heard from the Husband since 24 January 2021, he had not paid any child support, he had not contacted his child, he had not addressed the arrears of mortgage in regard to the D Street, Suburb E or B Street, Suburb C Property.  The Wife then issued proceedings and was unable to serve the Husband with documents in person.  However, the Wife had an email address and a mobile phone number.  On 13 April 2021 at 9.31 am, the Wife's solicitors emailed the Husband and attached to that email five documents.  Those documents were:

    (1)the Wife's initiating application filed on 24 March 2021;

    (2)the wife's affidavit filed on 24 Mach 2021;

    (3)The affidavit concerning the non-filing of a section 60I certificate filed on 24 March 2021;

    (4)A copy of the wife's financial statement filed on 24 March 2021; and

    (5)a copy of a notice of child abuse family violence or risk also filed on 24 March 2021. 

15. That email said “we look forward to your earliest reply.”  The email that was sent to the Husband was sent in English and Mandarin.  Exhibited to the Wife's affidavit of 14 May 2021 at page 16 of 35 is a business record that, on its face, demonstrates as follows in regard to the email of 13 April 2021:

    Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server.

16. Also, on 13 April 2021 the Wife's solicitors sent a text message to the Husband by sending it to the mobile number ending in …, as known to the Wife.  That text message annexed the same documents which I have described above.  In addition, a text message was sent stating:

    Attached is the one-drive link to the service documents.

17. Another text message was sent that had the link upon which the Husband would need to merely click to access the documents.  A text message in reply was received to the solicitor's phone that read as follows:

    Please send those to my email -

18. The email was set out at a different email address, to the email address as had been sent that day.  The solicitor responded with a text message saying, “Is this Mr Taishu,” the Husband's name, and a reply was received, “Yep.” 

19. A further text was sent, “Husband of Ms Foh.”  No further reply was received.  I find that, in fact, the Husband received the text message that had attached to it the documents and replied and requested the same documents be sent to an email address.  Responding to the Husband's request to send the documents to the email address, on 14 April 2021 at 3.56 pm the Wife's solicitor sent the same documents or, rather, sent an email that had the same documents as described above attached to it.

20. This is the second time that the husband has been served with the documents.  This email had attached to it the additional script:

    Please note that the next court hearing date is:  Tuesday, 25 May 2021.  We urge you to seek independent legal advice as a matter of urgency.

21. Attached to the Wife's affidavit at page 21 of 35 is a business record that states as follows:

    Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server.

22. On 15 April at 11.44 am, by email to the address that the Husband had requested documents be sent to in the text message referred to earlier, the email of the previous day was resent, together with the further message:

    Dear Mr Taishu, please confirm the receipt of our email with the attached court documents as a matter of urgency. 

23. Again, exhibited to the Wife's affidavit at page 24 of 35 of the 14 May 2021 affidavit is the business record in the same terms as previous ones indicating that that has been received.  On 23 April 2021 at 6.59 pm in an email to the email address that the Husband had requested documents be sent to him by text message, the Wife's solicitors stated to the Husband as follows:

    Dear Mr Taishu, please respond to our email to you on 14 and 15 April 2021 as a matter of urgency. 

24. At page 26 of 35 is the business record in the same form as previously demonstrating that the delivery of that email had been made to the Husband's email address as requested by him.  On 14 May 2021, the Wife herself sent a text message to the Husband, and to the same number, to which the Husband had previously replied as follows:

    25th of May is Family Court date, are you going to appear? 

25. No response was received.  On 19 May 2021 in anticipation of the hearing on 25 May 2021, the Wife filed an application in a case seeking that service to the Husband's email address as requested by him be sufficient as a form of substituted service.  I am told by the Wife’s solicitor this day, and I accept, that this application in a case was also emailed to the Husband. 

26. The application in a case was supported by an affidavit sworn by the Wife, or affirmed by the Wife, on 14 May 2021 of four pages and 16 paragraphs, but had attached to it a further 30 odd pages of exhibits, including the copies of the emails and text messages to which I have referred above as well documents evidencing notices of default issued by the mortgagees and demands for payment.  Those documents showed that the mortgagee in regard to the B Street, Suburb C Property had retained solicitors to enforce the mortgage.  That affidavit of 14 May 2021, I am told this day by the Wife’s solicitor and I accept, was also emailed to the Husband to the same address as he had requested documents be sent to him. 

27. On 25 May 2021 the matter came before Registrar Sudholz.  There was no appearance on behalf of the Husband.  I set out orders 1 to 7 and notations A to C: 

    THE COURT ORDERS THAT:

    1.The matter be adjourned to Judge O’Shannessy for further mention on Tuesday, 16 June 2021 at 9:45am.

    2.No later than 4:30pm on 11 June 2021 the Respondent must file and serve a Response to Initiating Application, Affidavit, Financial Statement and Notice of Child Abuse, Family Violence or Risk.

    3.Pursuant to rule 6.14(1) of the Federal Circuit Court Rules 2001, substituted service on the Respondent of the application filed on 24 March 2021 shall be effected by the Applicant on the Respondent by sending all supporting affidavits and documents, including all applications, by email to the Respondent at:

    (a)       .com; and

    (b)       .com

    4.The Applicant must serve a copy of these Orders upon the Respondent within 7 days using the email addresses referred to in paragraph 3 herein.

    5.The Applicant must file an Affidavit of Service within 7 days setting out compliance with Order 3 and 4 herein.

    6.Pursuant to rule 6.14(3) of the Federal Circuit Court Rules 2001, service will be taken to have been effected immediately after the steps set out in paragraph 3 and 5 above are completed.

    7.        The Applicant have liberty to seek to proceed undefended on the next occasion.

    AND THE COURT NOTES THAT:

    A.The Registrar is satisfied that the Wife has attempted to bring these proceedings to the notice of the Husband.

    B.On the next occasion the Wife shall seek to proceed undefended with respect to the Wife’s interim application set out in her Initiating Application filed 14 May 2021 where the Husband has failed to appear today or file responding material and where the G Bank and the Commonwealth Bank of Australia are threatening to seize and sell the matrimonial properties.

    C.       The Wife does not seek any interim parenting order

1. Pursuant to those orders, the Wife's solicitor filed an affidavit of service.  The affidavit of service sets out how on 27 May 2021, the documents referred to above and previously sent to the Husband where served upon him in addition to those documents, the application in a case and the affidavit in support of the substituted service application as well the order of 25 May 2021. 

2. The email sent to the Husband on 27 May 2021 at 2.48pm, in addition to attaching the documents, stated as follows:

   Please note that pursuant to order 2, you must file and serve the response by no later than 4.30 pm on 11 June 2021.  We also note that the next court hearing date is Tuesday 16 June 2021. 

3. Pursuant to the Federal Circuit Court Rules2001 (Cth) (‘the FCC Rules’), irrespective of whether a court order was made, rule 4.03 states:

   Rule 4.03 Response to application

   (1)A respondent to an application who seeks to do any of the following must file a response in accordance with the approved form:

   (a)       indicate consent to an order sought by the applicant;

   (b)       ask the Court to make another order;

   (c)       ask the Court to dismiss the application;

   (d)       seek orders in a matter other than the matter set out in the application;

   (e)       make a cross-claim against the applicant, or another party.

   (2)A response must precisely and briefly state any orders sought and (if the proceeding is a general federal law proceeding) the basis on which the orders are sought.

   (3)A response must be filed and served within 28 days of service of the application to which it relates.

4. In the circumstances where the Husband had been served probably on 13 April 2021 and, certainly, by 14 April 2021, the time for the filing of a response would have been 9 June 2021.  By the Registrar's orders, this was extended by a further two days.  The Husband did not file any material or contact the Wife or contact her solicitors. 

5. On 16 June 2021, the matter came before Registrar Maitland who ordered that the matter be adjourned to the Federal Circuit Court of Australia of Melbourne on 21 June 2021 at 9.30 am for undefended hearing.  I was told by the Wife’s solicitor and I accept, that that order has also been emailed to the Husband.  Over the weekend preceding this hearing, the Wife filed a further affidavit on 19 June 2021 that had further evidence in regard to bank drawings, debts and, effectively, corroborated the assertions that the wife had previously made in her affidavit that that had already been served.  I was told by the Wife’s solicitor and I accept that that affidavit was also emailed to the husband prior to this hearing. 

6. On 19 June 2021, that is shortly before this hearing, an amended initiating application was filed.  What is now sought as final property orders are, in substance, the orders that had previously been sought as interim orders and, in addition, an order to the effect that the whole of any funds received from the sale of the B Street, Suburb C and D Street, Suburb E Properties be paid to the Wife.  I was told by the Wife’s solicitor and I accept, that this amended initiating application had also been emailed to the Husband. 

7. When the matter came before me on 21 June 2021 in Court 2J, there was no appearance for the Husband.  Had the Husband made contact with the Wife's solicitors or my associates or the Court, he would have been permitted if he chose, to attend via video link.  Permission was sought to have that hearing face-to-face in the circumstances where the Wife sought the assistance of a court interpreter and one was arranged. 

8. Unfortunately, before the hearing could be completed the interpreter received an urgent message of a personal nature and was required to leave the hearing to that matter and I permitted him to do so.

9. Fortunately, the Wife's solicitor, Ms Tai, who attended and appeared on the Wife's behalf this day is a Mandarin speaker and I arranged for the Wife to be seated at the bar table.  Ms Tai told me it was acceptable to her and, indeed, requested that the hearing proceed with Ms Tai interpreting to her client as required.  I am satisfied that the Wife was able to understand the proceedings as it went along. 

10. In AON Risk Services Limited v Australian National University (2009) 239 CLR 175, a High Court case relating to a very late application for amendment of pleadings and adjournment of the commercial case, the majority observed at [98]:

    [98]…Speed and efficiency, in the sense of minimum delay and expense are seen as essential to a just resolution of proceedings…

11. I am satisfied that I have jurisdiction to proceed with what is known as an undefended hearing.  I find that the Wife's solicitors and the Wife have bent over backwards to try and engage the Husband in the proceedings, but that he has refused to do so.

12. I now turn to the issue of the child's welfare.  I note that the amended initiating application sought an order of sole parental responsibility for the child and that the child live with the Wife, and also a further order that the only person with parental responsibility for the child for the purposes of renewing and being issued with an Australian passport is the Wife.

13. The order also sought that the Husband is at liberty to telephone the Wife at any reasonable times that he may wish to do so, and to request to spend time with the child as agreed between the Wife and the Husband.   After discussion with the Wife's solicitor, it was submitted that the order as to sole responsibility should have with it the qualification save for responsibility for a name change.  The reality is that absent that qualification an order for sole parental responsibility would otherwise include authority to change the child's name.

14. This child has the disadvantage of having no contact whatsoever with the Husband since January 2020.  The only connection he has to his father is his name.  That may be important to him in the future.  I was told, and I accept, that the Wife has no current intention to seek to change the child’s name and is not seeking to do so. 

15. The child's circumstances are that he is attending a local primary school and doing well.  He is entirely supported by his mother, who earns a modest income working in a local business.  Fortunately, the Wife is young and in reasonable health.  I find that it is in the best interests of the child for orders that the Wife have sole parental responsibility and that the child live with the Wife and the other orders the Wife seeks.

16. I now turn to property orders.  The outline of case of the Wife asserts, and I accept, that when the remaining debt to her parents of $360,000 is taken into account, that there is likely to be a deficiency in the overall asset pool in the order of $100,000 or so.  There is no expert evidence as to the value of the D Street, Suburb E Property or the B Street, Suburb C Property.

17. In the financial statement served on the Husband (and I note that the case outline of the Wife was also emailed to the Husband) the Wife had attributed one half of the value of the B Street, Suburb C Property as being $400,000, and hence by inference was asserting that the value was $800,000.  She asserted that the half ownership of the D Street, Suburb E Property that she had was $175,000, and hence by inference was asserting that property was $350,000.

18. I take notice of the circumstances that the Husband has chosen not to contest or qualify those assertions by the Wife, notwithstanding that those assertions are not backed up by any expertise.  However, people in the community ordinarily have a rough idea of the value of their property, and more so when they are attempting to sell the same and consult with real estate agents.

19. In the circumstances where the husband has chosen not to participate in the proceedings, I accept the approximate values of the properties are as set out by the Wife.  In regard to the B Street, Suburb C Property, assuming that it is net of sale expenses the $800,000 asserted by the Wife and it may sell for less, the remaining equity in that property would only be in the order of $290,000.

20. If the D Street, Suburb E Property sells for the price the Wife asserts it should achieve of $350,000, after taking into account the amount due in the mortgage of $407,000, the property will have a deficiency to the bank of approximately $57,000.  Save for those two properties, and a modest motor car the Wife has, there is no other property of the parties.  However, the Wife is still indebted to her parents in the approximate sum of $360,000.

21. In the circumstances, it appears overwhelming that from the joint life of the Husband and Wife together, despite having purchased three properties in a rising property market and having been lent $600,000 by the Wife's parents, the end result is that it is unlikely that the property proceeds of sale will extinguish the Wife's debt to her parents.

22. If there is anything left over, that is, if both the B Street, Suburb C and D Street, Suburb E Properties sell for substantially more than what has been asserted here by the Wife, after payment of the debt to her parents the Wife should retain that sum.

23. I note that the Husband has chosen not to assist the court in regard to disclosure of financial information or as to what he would say his own property is worth.

24. I note that, in accordance with the well-known authorities of, for example, In the marriage of Weir and Weir (1993) FLC ¶92-338 and In the marriage of Black & Kellner (1992) FLC ¶92-287, in the circumstances where a party has not complied with his duty of financial disclosure and provided all relevant financial information to the Court, I am entitled, in the exercise of my discretion, to be more generous to the other party that I would otherwise have been. However, the tragic circumstance in this case is that it appears unlikely that the parents will be able to be repaid all that they are owed from the proceeds of sale. Hopefully, but it is unlikely, they can be repaid all of the funds they are owed and there is a little left over for the Wife.

25. I am required and must take into account section 79(2) of the Act. In these unfortunate circumstances, I find that the orders that I intend to make are just and equitable. They are just and equitable because it is simply not possible for the parties to continue to have the joint ownership and enjoyment of those properties, and it is just and equitable that orders be made bringing to an end that joint ownership and crystallising debt and what little equity there may be.

26. In regard to the property pool, I find that it is (and I omit minor bank accounts) as follows, and as set out in the outline of case:

ASSETS AND LIABILTIES
Assets	Ownership	Estimated Value
D Street, Suburb E	Joint	$350,000
B Street, Suburb C	Joint	$800,000
Motor Vehicle	Wife	E$15,000
Bank Account	Wife	$2,000
Total             $1,167,000.00
Liabilities	Ownership	Total amount of liability
D Street, Suburb E Property Mortgage (G Bank)	Joint	$406,310
B Street, Suburb C Property Mortgage (CBA)	Joint	$509,534
Personal Loan from Parents	Wife	E$360,000
Total             E$1,275,844.00
Superannuation	Ownership	Value of superannuation
Super Fund 1	Husband	Unknown
Super Fund 2	Wife	$2,741.00
Total              $2,741.00
Total combined assets		E$1,167,000.00
Total combined liabilities		E$1,275,844.00
Total net assets (combined assets minus combined liabilities)		-$108,844.00
Total combined superannuation		$2,741.00
Total net assets plus superannuation		-$106,103.00

1. In regard to contribution until separation, save for the circumstances that the Wife alleges that from 2019 the Husband was traveling frequently overseas and, she believes, diverting money to his overseas activities, it could be said that both parties have worked hard and attempted to get ahead financially in Australia.

2. Since the separation, the Wife has had the sole responsibility of the child in addition to supporting herself and the child without child support. The parties also have the advantage of a substantial loan from the Wife's parents, and a substantial part of that remains outstanding. In all of those circumstances, I find that the Wife's contribution is considerably more than the Husband's contribution within the meaning of section 79(4)(a), (b) and (c) of the Act. It is unnecessary to express precise percentages.

3. In terms of section 75(2), to the extent that is relevant, I take into account that the Wife has the sole responsibility for care of the child, earns a modest income working in a local business, whereas the Husband, on the other hand, is capable of earning significant income as a professional. Further, the Wife does not currently receive any child support whatsoever from the Husband and it is uncertain that she ever will.

4. In all of those circumstances, were there a fund of assets available to be divided between the parties, it would be just and equitable that there be a substantial adjustment in the Wife's favour according to section 75(2) of the Act.

5. Unfortunately, in this case it is unlikely that there will be any funds left over after repayment of the wife's debt to her parents.  It may be, given the parlous nature of the Wife's financial circumstances in Australia, that the parents would re-lend funds to the Wife to support her or not.  If the loan had been forgiven or was a gift it would have likely remained just and equitable in the circumstances that the Wife retain all of the sale of property proceeds. 

6. In any event, if there were to be funds left over, I find that it would be just and equitable that the wife receive the whole of those funds, if any.  The effect of these orders is that it is left up to the Wife to repay the debt to her parents from the proceeds that she has. 

7. In regard to the paragraph relating to the sale of the premises, the B Street, Suburb C Property and the D Street, Suburb E Property, I find that not only do I have power to make those orders (which provide for the Wife to be authorised to execute documents in the name of the Husband and on his behalf pursuant to section 106A of the Act, but also pursuant to section 80(1)(k) of the Act. I do not propose to make the usual order that a Registrar of the Court should execute any necessary document in the name of the Husband. I find that the Wife's solicitor, who is named in the orders and who appeared before me today, is an officer of the Court and who will act with diligence and caution in every regard in regard to the heavy responsibility that these orders place on her. However, I am concerned not to further run up the wife's legal fees by having the need for further applications to be made to a Registrar of the Court, which would require further affidavit evidence.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       29 June 2021