Greene and Greene

[2013] FCCA 287

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREENE & GREENE [2013] FCCA 287

Catchwords:
FAMILY LAW – Property orders sought – proceedings undefended.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79(2), 106A

Applicant: MS GREENE

Respondent: MR GREENE

File Number: MLC 9973 of 2012

Judgment of: Judge Hartnett

Hearing date: 23 April 2013

Delivered at: Melbourne

Delivered on: 23 April 2013

REPRESENTATION

Solicitors for the Applicant Hogg & Reid

Counsel for the Applicant: Ms Carter

The Respondent: No appearance

THE COURT ORDERS THAT:

1. The Applicant wife have leave to proceed on an undefended basis, having complied with the Orders made 14 November 2012 as to service, and the Respondent husband having been advised by the wife of the proceedings this day, and he having failed to attend Court, or to file any documents in these proceedings.

2. Within 28 days of these Orders being served upon him, pursuant to paragraph 6 hereof (‘the date’), the husband do all acts and things and sign all documents as may be required to transfer to the wife, at her expense, all his right, title and interest in the property at Property F, in the State of Victoria, more particularly described in Certificate of Title Volume [omitted] ("the real property").

3. Contemporaneously with the date, the parties do all such acts and things and sign all such documents as may be required to refinance the mortgage currently secured over the real property into the sole name of the wife.

4. In the event the husband fails to execute any documents necessary to give effect to these Orders, pursuant to s106A of the Family Law Act 1975 (Cth), a Registrar is hereby appointed to execute all documents in the name of the husband and do all things necessary to give validity and operation to any documents required to give effect to and complete these Orders.

5. Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

   (a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the wife);

   (b)each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;

   (c)insurance policies remain the sole property of the owner named therein;

   (d)each party 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; and

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

6. The wife's solicitor shall affect service upon the husband by forwarding a copy of these Orders to him, care of his parent's home at [address omitted], being the address deemed to be his address for service pursuant to paragraph 1 of the Orders made 14 November 2012.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 9973 of 2012

MS GREENE

Applicant

And

MR GREENE

Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced with the Applicant wife filing an Initiating Application on 31 October 2012.  The matters before the Court in the proceedings involved both property and parenting orders sought.  On 4 February 2013 and before, then Connolly FM, Orders were made on an undefended basis with respect to the parties’ daughter, [X] born [in] 2010 (‘[X]’).  On that day and in the absence of the Respondent husband, the wife had leave to proceed with her parenting orders application on an undefended basis. 

2. The orders made that day included that the wife have sole parental responsibility for [X], that [X] live with the wife and that [X] spend time as set out in those orders with the husband subject to the conditions as contained therein.  The orders also provided for the wife to be permitted to travel with [X] to Russia and [M] for six weeks departing Melbourne on 19 August 2013.  In respect of the property proceedings that were then extant before the Court, they were by order adjourned to a duty list this day before me, it being noted in the Orders made on 4 February 2013 that:-

   “The application for property did not proceed because there was no valuation of the value of the real property.”

3. There is now before me this day, a certified valuation in respect of the former matrimonial home of the parties being known as and situated at Property F in the State of Victoria (‘the Valuation’).  The Valuation provides a market value in respect of the former matrimonial home of $425,000 and was tendered in evidence and marked as “Exhibit 1” and remains on the Court file.  The Orders of 4 February 2013 were brought to the attention of the husband by correspondence dated 26 February 2013 emanating from the solicitors acting on behalf of the wife. 

4. The wife relied this day on an Affidavit sworn and filed by Ms Margaret Hogg, Solicitor, on 18 April 2013 wherein communication forwarded to the husband is annexed to the Affidavit and marked with the letters “MMJH1”. I am satisfied that notice of this matter proceeding this day has been given to the husband, as has notice of the Orders made on 4 February 2013. The husband failed to attend Court this day and has failed to file or serve any documents including any response setting out orders sought by him in these proceedings. The extant property application thus proceeds before me on an undefended basis.

5. The Affidavits relied upon by the Applicant wife were those sworn by her on 21 September 2012 (filed 31 October 2012) and on 21 January 2013 (filed 23 January 2013).  In addition, the wife relied on an earlier Financial Statement sworn by her on 26 October 2012 (filed 31 October 2012) and an Affidavit from the maternal grandmother, Ms M, sworn 21 September 2012 (filed 31 October 2012) which went, in the main, to the direct financial contribution made by her to the purchase of the former matrimonial home.  The wife also relied upon an Affidavit sworn by Ms C on 22 January 2013 (filed 23 January 2013) in which Ms C deposed as to service upon the husband of the wife’s Amended Initiating Application filed 13 November 2012 on which she relies, her Affidavit sworn on 12 November 2012 and the Orders made 14 November 2012.

History

1. At the time of the commencement of cohabitation of the parties neither the husband nor wife had assets of any significance.  They married on [omitted] 2009 at [omitted].  They had cohabitated for a period of six years prior to the marriage.  The wife was born [in] 1985 in [M].  She is almost 28 years of age.  She arrived in Australia in 2002 and is now an Australian citizen.  She is employed as a [omitted] and has an income, as at the time of this hearing, of approximately $68,000. 

2. The husband was born [in] 1979 in [U].  He is aged 32 years.  He arrived in Australia in 1989 and is also now an Australian citizen.  The parties met on 13 July 2003, commenced to reside together shortly thereafter and became engaged on 8 March 2004 prior to their marriage on [omitted] 2009.  They separated on 23 April 2011 when their daughter [X], who was born in the preceding year, was aged approximately eight months. She continued to reside with the wife in the former matrimonial home which the husband departed.  The parties have thus had a cohabitation period of some eight years and two months.

3. The wife and [X] have continued their occupation of the former matrimonial home together with the maternal grandmother, Ms M.

   
   

   Ms M is a [occupation omitted] who arrived in Australia in January 2007 and who advanced a total sum of $42,000 (in cash savings and borrowings) in order to provide a deposit and thus enable the purchase of the former matrimonial home by the husband and the wife. 

4. On 6 August 2009, the parties purchased the former matrimonial home. The purchase price was in the sum of $419,500.  As the parties had no savings the deposit was provided, as described above, by the maternal grandmother.  The mortgage taken out by the parties at the time of the purchase of the real property was in the sum of $382,840. 

5. Upon settlement of the purchase of the former matrimonial home, the husband, the wife and the maternal grandmother took up occupation of it.  The evidence of the maternal grandmother, as set out in paragraph 3 of her Affidavit sworn 21 September 2012 is as follows:-

   “My assistance and advancement of moneys for the deposit as outlined above was on the understanding and expectation that I would be living at the property indefinitely.  It was always understood that I had an equitable interest in the property and that the Husband was holding my interest in the property on a resulting trust for me.  I would never have contributed or provided such assistance otherwise, as I was not in a financial position to do so.  We all agreed that if we pooled our resources together we would be able to purchase a home for all of us to live in, including my mother.  It was on this basis that I provided and continue to provide financial assistance.”

6. The mortgage repayments with respect to the former matrimonial home since separation have been contributed to in equal measure by the wife and the maternal grandmother.  In addition, the maternal grandmother has discharged her credit card debt and a loan from [omitted], these debts being incurred as a result of her advancing the deposit of $42,000 at the time of purchase.  In addition, the maternal grandmother makes a financial contribution, as she has always done, to the running of the household which includes the payment of contents insurance, council rates and utility bills.

7. The mortgage at separation on 23 April 2011 was in the sum of $381,149.  It had decreased minimally in quantum.  As at today the value of the former matrimonial home situate at Property F is in the sum of $425,000 and the current mortgage outstanding is in the sum of $364,000.  The post separation reduction in the mortgage quantum which has been funded by the wife and the maternal grandmother is in the sum of approximately $17,000.  This sum, together with the deposit monies advanced by the maternal grandmother, represents almost entirely the equity of some $61,000 in the former matrimonial home at the present time.

8. In addition to the equity in the former matrimonial home, the pool of assets comprise a Nissan motor vehicle registered in the wife’s name, with a value of approximately $9,000 and a Honda motor vehicle registered in the wife’s name, with a value of approximately $8,000.  These vehicles are subject to finance in the total sum of $7,836 leaving equity of $9,164 which the wife derives the benefit of.

9. During the marriage the husband worked as a [omitted]. He then established his own business, but derived no income from the operation of this business.  At the present time, the wife has no knowledge of whether the husband is working or not and no knowledge as to what his current income is. 

10. The wife’s superannuation entitlements as at 30 June 2012 are in the sum of $10,818.  The husband’s superannuation entitlements are unknown to the wife, save she believes him to have superannuation benefits, and any such benefits quantum has never been provided by the husband to the Court.

11. The wife has made inquiries of her bank who will agree to her taking over the mortgage registered against the title to the former matrimonial home.  The wife wishes for the property to be registered in her sole name and to be solely responsible for the mortgage encumbrance with respect to same.

12. Although each of the parties made no contribution at the commencement of their cohabitation and made an equal contribution throughout the course of their cohabitation and marriage, save that the maternal grandmother provided the parties with the deposit funds in the sum of $42,000 to enable them to purchase the former matrimonial home which was registered in the husband’s name, the wife and the maternal grandmother have made a significant contribution post separation to the equity that is in the former matrimonial home.  The husband has made no contribution. 

Section 75(2) of the Family Law Act 1975 (Cth) matters

1. Since the parties’ separation the husband has spent time with the parties’ daughter [X] on a supervised basis on a Sunday being at his new wife’s home and in the paternal grandmother’s presence.  No child support has been paid by the husband since separation and as at 10 January 2013 there were arrears of some $3,620 on an assessed amount of $160 each month.  It may well be that the husband is currently unemployed or employed on a lesser salary than that at the time at which the assessment was made, but these are matters unknown to the wife.  The husband has not applied for any reduction in his child support payments or any cessation of same and thus the arrears continue to accumulate in the event that he would be entitled to adopt either of those courses.

2. The wife has the sole care of the parties’ very young daughter and will continue to do so into the future. The husband’s time spent with the child is minimal. The wife’s care of the parties’ daughter is a significant factor that requires a percentage adjustment in the wife’s favour. That coupled with the additional percentage adjustment for the post separation contribution results in orders which I shall make this day as sought by the wife. Pursuant to s.79(2) of the Family Law Act 1975 (Cth) (‘the Act’), the Court is satisfied that in all the circumstances such orders are just and equitable to make.

3. The facts as asserted in the affidavit material of the wife, earlier referred to and on which she relies, are unchallenged by the husband because of his failure to participate in these proceedings in any way. Those facts are established on the balance of probabilities. The husband’s failure to participate has necessitated the making of an order under s.106A of the Act to prevent the wife being required to expend further funds on legal costs and to avoid further litigation. Otherwise, all extant applications will be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Hartnett.

Associate: 

Date:  14 May 2013