Harlem & Harlem

[2007] FamCA 1172

FAMILY COURT OF AUSTRALIA

HARLEM & HARLEM [2007] FamCA 1172

FAMILY LAW – CHILDREN – With whom a child lives – Best interests

FAMILY LAW – PROPERTY – Settlement in relation to marriage

Family Law Act 1975 (Cth)

APPLICANT: Mrs Harlem

RESPONDENT: Mr Harlem

FILE NUMBER: NCC 775 of 2007

DATE DELIVERED: 3 October 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle

JUDGMENT OF: Cohen J

HEARING DATE: 21 September 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Greg Tyler & Associates

NO APPEARANCE OF OR ON BEHALF

OF THE RESPONDENT

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 775 of 2007

MRS HARLEM

Applicant

And

MR HARLEM

Respondent

REASONS FOR JUDGMENT  

1. On the 21 September I made the orders which the wife sought in these undefended proceedings. I am satisfied that the husband has at all relevant times known he could defend the proceedings, has known they were listed for an undefended hearing and decided not to defend them and has been properly served. I rely on his affidavit sworn 27 August 2007 which admits this is the situation about his intentions. I read, considered and relied on the wife’s affidavits sworn 12 March 2007, 18 May 2007 and 17 July 2007 as well as her financial statement sworn 13 March 2007. The orders I made are:

   CHILDREN

   1.Discharge all previous orders with the children’s passports being returned to the applicant.

   2.That the children, D, born … May 1995 and L, born … March 1997 live with the applicant.

   3.That the applicant have sole parental responsibility for the children.

   PROPERTY

   4.That within fourteen (14) days the parties do all things and sign all documents necessary to authorise and direct E Conveyancing of T, to release to N Pty Limited ABN … the balance of proceeds of sale of real estate situated at C.

   5.That within fourteen (14) days of the date of these orders the respondent do all things and sign all documents necessary to transfer to the wife all of his shareholding in the company, N Pty Limited ABN ….

   6.That within fourteen (14) days from the date of these orders the husband do all acts and things and execute all documents necessary to transfer to the wife his right title and interest in 2000 Kia Motor Vehicle Regd. No. …

   7.That as between the parties and other than as herein provided, the husband and the wife each be declared the sole legal and beneficial owners of all other items of property presently in their respective possession or control including but not limited to money, shares, real property, furniture, motor vehicles, entitlements to superannuation, artwork and personal effects.

   8.That in the event of either party refusing or neglecting to sign within fourteen (14) days after receipt of a written request to do so, any documents necessary to put into effect the terms of orders sought above the Registrar of the Newcastle Registry of the Family Court of Australia is hereby appointed to execute such documents in the name of the defaulting party pursuant to the provisions of Section 106A(1) of the Family Law Act 1975 (Cth).

   9.That each party be solely liable for and indemnify the other against any liability encumbering any item or property to which the parties are entitled pursuant to these orders.    

2. These are my reasons for making them.

3. Because the matter is undefended none of the facts asserted by the wife in the 3 affidavits which I have read and her statement of financial circumstances is challenged. There is no need to restate them. I incorporate all the paragraphs of those affidavits except those which I have rejected in this judgement. I have rejected the first two sentences of paragraph 47 and paragraphs 96 to 100 inclusive of the affidavit of 12 March only. The remaining facts related in these affidavits and the statement of financial circumstances are to be regarded as the facts which I have considered, relied on and weighed in these proceedings.

4. I have considered and applied the provisions of the Act, especially ss60B, 60CA, 60CC and 61DA in the light of all the matters relating to the children. Here, it should be emphasised that the husband appears to me to be quite disturbed. It would be quite adverse to the children’s best interests if they are exposed to his violence against himself. I regard it as necessary to protect the children from being exposed to his bouts of self mutilation and the like to avoid any substantial face to face contact between the husband and the children. It seems that he does not intend such contact to take place because he has not asked for any contact and lives in South Africa. In the circumstances, it is in the children’s best interests that the wife have sole parental responsibility and that no orders be made for contact.

5. The parties’ respective contributions to their property are clearly stated in the wife’s affidavits. She has established by those and her statement of financial circumstances that after separation the parties set about dividing their property between them. The home was sold and part the net assets was also divided among them. The result of the division of the property is:

   ASSETS AND LIABILITIES ON OR AFTER SEPARATION

   ITEM  VALUE  HUSBAND               WIFE

   Art Work                   $57,734.00               $31,166.00               $26,568.00

   Kia Motor Vehicle    $9,000.00  $9,000.00

   VW Beetle                $18,000.00               $18,000.00

   Furniture                   $10,000.00               $5,000.00                 $5,000.00

   Bank Accounts

   Joint Current             $70.00  $70.00

   Joint Savings             $7,047.00                 $7,000.00                 $47.00

   H Bank  $3,884.00                 $3,884.00

   Bank of America       $1,350.00                 $1,350.00

   Ned Bank

   South Africa              $26,000.00  $26,000.00

   Proceeds of House   $100,000.00             $50,000.00               $50,000.00

   Effectiveness

   Company Stock        $4,000.00                 $4,000.00

   Q Stock  $9,000.00  $9,000.00

   Superannuation         $21,915.00               $9,715.00                 $12,200.00

   Shares  $4,000.00  $4,000.00

   Liabilities                 -$23,544.00  -$23,544.00

   TOTAL  $248,456.00             $130,185.00             $118,271.00

   ASSETS AND LIABILITIES REMAINING

   Proceeds of sale held by E Conveyancing   $75,820.21

   Company’s Liabilities- approximately   $23,544.00

   $52,276.21

6. The wife will be liable to meet the $23,544 debt. The $75,820, the balance of the net proceeds of the sale of the former matrimonial home, is held in a trust account pending delivery of my orders.

7. Thus, the net property which has been divided or is awaiting distribution amounts to $324,276.00. The wife feels obliged to meet the liabilities of N Pty. Limited. She seeks to hold all of its shares. That is the source of the $23,544 in liabilities.

8. The same company was also the owner of the former matrimonial home so is the owner of the $75,820 remaining from its sale. If, as the wife seeks, this sum is restored to the company, the wife will get $194,091.00 of the $324,267.00 in net assets. This amounts to 59.85% of the net assets or close to 60%. She submits that the parties contributed to the extend of 50% each to these but that a 10% adjustment should be made in her favour pursuant to s75(2).

9. My assessment is that the wife has contributed to a greater degree than 50% bearing in mind her initial contribution of $50,000 net and the husband’s virtual lack of net assets at the time of marriage because, otherwise the contributions appear to me to be equal. However, the wife does not in my opinion warrant an adjustment in her favour of 10% pursuant to s75(2) despite the fact that she will have exclusive or as good as exclusive care of the children for about 6 to 8 years respectively, is unlikely to obtain any child support for their care, will have her earning capacity somewhat curtailed by her need to care for the children and will have to house herself and the children. The husband is unlikely to have a need to house anybody but himself and his earning capacity is not limited by a need to care for the children.

10. In my opinion the parties contributed to the extent of 54% by the wife and 46% by the husband to their net assets available for division and there is a need to make an adjustment of 6% in favour of the wife for needs and like factors, making it just and equitable to divide the parties’ net property by giving about 60% to the wife and 40% to the husband, a division which is properly achieved by making the property orders which the wife seeks. The orders which I have already made are proper in the circumstances.      

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate 

Date:  3 October 2007