Garcia and Chatfield
[2009] FMCAfam 1041
•10 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARCIA & CHATFIELD | [2009] FMCAfam 1041 |
| FAMILY LAW – Property settlement – proceedings in absence of a party – orders sought concerning property of the parties – no alteration in property interests sought – unclear that orders sought are property settlement orders – satisfied orders should be made under either s.79 or s.78. |
| Family Law Act 1975 ss.75(2), 78, 79 |
| Applicant: | MS GARCIA |
| Respondent: | MR CHATFIELD |
| File Number: | SYC 324 of 2008 |
| Judgment of: | Halligan FM |
| Hearing date: | 10 August 2009 |
| Date of Last Submission: | 10 August 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 10 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | No appearance by the applicant |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Ms Wright |
| Solicitors for the Respondent: |
ORDERS
Orders are made in terms of the minute of order marked exhibit A.
IT IS NOTED that publication of this judgment under the pseudonym Garcia & Chatfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
SYC 324 of 2008
| MS GARCIA |
Applicant
And
| MR CHATFIELD |
Respondent
REASONS FOR JUDGMENT
This is the hearing of property settlement proceedings originally initiated by the wife against the husband and now only being pressed by the husband in relation to the relief sought in his response.
The wife discontinued her application for property settlement, a notice the discontinuance being filed on 7 July 2009, about five weeks before the date set for the final hearing of this matter. That date had been set in March of this year.
A minute of order was submitted on behalf of the husband. It is now marked exhibit A. It bears signatures and it is said that one of those signatures is the signature of the wife’s. However, I do not have evidence before me that that is so. The representative of the husband is not mentioning on behalf of the wife, the wife’s solicitors have now ceased to act for her and neither she nor any representative on her behalf is before the Court.
In the circumstances, I am asked to make the orders as set out in exhibit A but cannot do so on the basis that they are by consent. I therefore decide the matter on an undefended basis as against the wife. I am satisfied that there would be no denial of procedural fairness to the wife in doing so. She started the case. She knew of the hearing date. She discontinued and she has not come. She has had more than ample opportunity to be heard.
The parties were married for a very short period of time indeed. They married in September 2004 and on the husband's unchallenged evidence, which I accept, they had separated before the end of the year. I accept also the evidence of the husband that at the commencement of the marriage he owned a property and he had savings.
In fact, he had more savings when he first met the wife but during what might be regarded as their courtship, I accept the husband’s evidence that at her request and, in some cases, under pressure from the wife, he had assisted her in meeting the costs of renovating a property that the wife herself owned, the wife having represented to the husband that she owned not only that property but another property as well which it transpired was, in fact, owned by the Housing Department. The husband not only provided money for this work but he also provided his labour and affected significant improvements to the wife’s property
After the parties married, the wife obtained access to the husband’s bank account and credit card and commenced to spend his money at an alarming rate. He first found out this was happening a few months after the marriage, and this prompted the separation.
There is no evidence that the wife has, in fact, suffered any reduction in her property or its value at all during the parties’ relationship. There is evidence that the husband has suffered a very significant capital loss, namely the loss of not insignificant savings.
The order that I am asked to make is to leave each party with the property of which they are currently seized. In determining what order should be made, if these are in fact property settlement proceedings, the Court must assess the contributions of the parties to the property pool having assessed what that property pool is, must render the contributions in percentage terms, must determine whether any adjustment to that contribution based entitlement is warranted by reference to the non contribution matters in s.75(2) and finally determine what order would be just and equitable to carry the result into effect.
However, in this particular case, I am not asked to alter the interests of either party in any property. I am simply asked to leave the property where it currently lies. The inference to be drawn from the evidence is that some of the personalty that the wife has was gifted to her by the husband. Because of the presumption of advancement, one would have to proceed upon the basis that at law and in equity that property would be the wife’s and therefore the order that the husband seeks would be more in the nature of a declaration under s.78 than a property settlement order under s.79.
If in fact the order I am asked to make is a property settlement order, the husband’s contributions far outweigh the wife’s in the form of capital cash injections he has made and his own labour in improving the wife’s property and in providing her with various motor vehicles and furniture and appliances for her home. I accept the husband's evidence as to the property of the parties. The order he seeks would leave the wife with the benefit of the husband's largesse, and I am satisfied are eminently justified under s.79.
If on the other hand I am asked to make orders in the nature of a declaration under s.78, I accept that on the evidence before me there is nothing to suggest other than that each of these parties is the owner at law and in equity of the reality and personalty of which they are currently seized or of which they have possession or control. I will therefore make the orders as asked.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 6 October 2009
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