Janus and Janus

[2007] FamCA 643

FAMILY COURT OF AUSTRALIA

JANUS & JANUS [2007] FamCA 643

FAMILY LAW - PROPERTY SETTLEMENT - Undefended - Just and equitable

APPLICANT: MRS JANUS

RESPONDENT: MR JANUS

FILE NUMBER: CAF 564 of 2006

DATE DELIVERED: 26 June 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Mullane J

HEARING DATE: 21 May 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr R. Monteleone of Messrs Elrington Boardman Allport,

Solicitors

THE RESPONDENT: There was no appearance by or on behalf of respondent husband

Orders

1. On or before 30 June 2007 the parties must do all acts and execute all documents prepared by the wife or her solicitors to simultaneously:

   1.1transfer to the wife the former matrimonial home being the property known as R in the Australian Capital Territory and being the land in Certificate of Title Volume … Folio … (“the property”);

   1.2the wife to repay and obtain a discharge of the Standard Home Loan to the parties by Members Equity Bank secured by mortgage over the property;

   1.3     the wife to pay the husband $50,000;  and

   1.4the husband to give the wife the keys to, and vacant possession of, the property.

2. Upon compliance with Order (1) by the husband the wife must indemnify the husband for outgoings in respect of the property.

3. The husband must within 21 days do all acts and execute all documents submitted by the wife’s solicitors to transfer to the wife the registration and the parties’ interest in their 1998 Mazda 323 5-door manual Astina Hatchback motor vehicle in the wife’s possession.

4. The wife must within 21 days do all acts and execute all documents submitted by the husband to transfer to the wife the registration and the parties’ interest in their 1993 Holden Commodore Berlina 4-door automatic sedan presently in the husband’s possession.

5. Whenever a splittable payment is payable in respect of the superannuation interest of  the husband in the Commonwealth Superannuation Scheme:

   5.1the wife … is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations, 2001, using a base amount in the sum of $200,000 at the operative time of 28 May 2007; and

   5.2there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.

6. The above order binds the trustee or trustees from time to time of the superannuation fund.

7. Otherwise each party is declared to have no interests in any item of property in the possession or control of the other.

8. If the husband refuses or neglects to sign any document necessary to implement these orders within 14 days of a written request to do so, the Registrar of the Family Court of Australia, Canberra Registry is appointed to sign the document on his behalf.

9. The wife may by letter delivered to the Registry Manager before 1 July 2007 request listing of her costs application for argument by telelink and upon failure to make such a request in time the costs application is by this order dismissed.

10. Otherwise the wife’s amended Application filed 16 April 2007 is dismissed.

    IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Janus & Janus.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAF 564  of 2006

MRS JANUS 

Applicant

And

MR JANUS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was an undefended hearing of the wife's Application for alteration of property interests under s 79 of the Family Law Act 1975 (Cth). The applicant wife is 48 years of age and employed full time as a public servant with the Australian Public Service. The respondent husband is 47 years of age and a public servant employed by the Australian Public Service. The parties married and commenced cohabitation in November 1978. They separated on 15 May 2006 after nearly 28 years of cohabitation. There are three children of the marriage, all of whom are now adults and self supporting.

Evidence

1. The evidence comprised the following documents:

   a)The wife's Application for Final Orders filed 20 November 2006.

   b)The wife's Financial Statement sworn 15 November 2006.

   c)The Affidavit of Mr M sworn 8 December 2006.

   d)The Affidavit of service of Mr S sworn 15 December 2006.

   e)The Amended Application of the wife filed 16 April 2007.

   f)The Affidavit of the wife sworn 26 April 2007.

   g)The Affidavit of Mr M sworn 27 April 2007.

   h)The Affidavit of Mr C sworn 3 May 2007.

   i)The Affidavit of Service of Mr J sworn 9 May 2007.

Non Appearance Of The Husband

1. The husband was served with the initiating Application on 11 December 2006.  He was served on 6 May 2007 with the Amended Application and the Affidavits of the wife of 26 April 2007, Mr M of 27 April 2007 and Mr C of 3 May 2007.  The husband did not appear on the return date of the application, when the matter was before a Registrar on 22 February 2007 or on 27 March 2007.  He has filed no response opposing any of the orders sought by the wife.  He has not filed a Notice of Address for Service or any other document.

2. The matter was listed for undefended hearing at 10.00am.  There was no appearance by the husband or on his behalf when the proceedings were called after 10.15am.  When he was called again at 2.50pm there was no appearance by him, or on his behalf.  There was no appearance notified before the hearing commenced.   At 2.50pm, the hearing then proceeded. 

3. The Court is satisfied that the husband was aware of the hearing being listed, but had decided not to oppose the application and not to participate himself, or by legal representative, at the hearing.

Brief Background

1. The parties married and commenced cohabitation on 11 November 1978.  At the time of the marriage they were both in full time employment with the Commonwealth Public Service in Canberra.  The three children of the marriage are T (now 24), H (now 21) and A, who turned 18 in April 2007. 

2. Upon the birth of T in 1982 the wife ceased full time employment.  She then had various part time or casual work as a waitress or sales person, until about 2000, when she resumed full time employment in a management position with the Australian Public Service.  She is still in that employment. 

3. The husband was in full time employment throughout the marriage in senior positions in the Public Service.  He usually worked long hours throughout the marriage.  His contributions from paid work were far superior to the wife's.  The wife during the cohabitation performed most of the home making chores for the parties and the children and she also performed the large majority of the parenting. 

4. The former matrimonial home was bought in 1992 for about $250,000, financed with about $180,000 from the sale of the former home of the parties and a mortgage loan from the St. George Bank of about $100,000.  The parties have since improved the property.  The mortgage liability was refinanced before separation with a loan from Members Equity Bank. 

5. It appears all of the children have been self supporting and living independently of the parties since before separation.   The parties separated in May 2006.

6. At separation the wife remained in the matrimonial home and the husband moved elsewhere.  The parties have each since paid half the mortgage payments, which at the time of the hearing were equivalent to about $684.00 per week.  There has been an indirect contribution by the husband to the wife's welfare since separation, in that she has had the benefit of the rent free use of the jointly owned matrimonial home. 

7. The superannuation entitlements of the parties have accrued from contributions made since the date of marriage by each of them and by their employers on their respective behalves.

Property And Liabilities

1. The property of the parties comprises: 

   The husband's superannuation with the
   Commonwealth Superannuation Scheme   $1,026,518.00
   The wife's superannuation with ANZ Superannuation
   and the Public Sector Superannuation Scheme   $68,781.00 

   Total superannuation   $1,095,299.00

   Other property:

   The former matrimonial home per
   the valuation of Mr C.  $645,000.00
   The jointly owned 1998 Mazda 323
   in the wife's possession per her
   admission against interest   $11,600.00
   The jointly owned 1993 Holden
   Commodore Belina in the husband's
   possession per Red Book   $2,950.00
   The wife's jewellery  $4,500.00

   Subtotal   $664,050.00
   Total property   $1,759,349.00

2. The liabilities are:

   The Members Equity Bank mortgage
   on the home   $176,000.00

   The wife's credit card debt

   (post separation)   $8,621.00

   Total liabilities    $184,621.00

3. The difference between the property and the liabilities at the time of the hearing was $1,574,728.00.

Contributions

1. The Court adopts the submission of the wife as to the ratio of financial and non financial contributions of the parties to property and to the welfare of each other and of their children, as justifying a division of their property (including superannuation) as follows:

   Wife retains home   $645,000.00
   Split of husband's superannuation  $200,000.00
   Wife's superannuation  $68,781.00
   Wife's car  $11,600.00

   Wife's jewellery  $4,500.00

   Sub total   $929,881.00

   Less settlement payable to husband            $  50,000.00

   Mortgage of the home   $176,000.00

   Wife's credit card debt  $    8,621.00

   Total   $234,621.00

   Net total   $695,260.00

   The husband retains balance of property

   (including superannuation)   $829,468.00

   Settlement from wife   $50,000.00

   Total   $879,468.00

2. This represents a distribution of the superannuation at a ratio of 24.5 per cent to the wife and 75.5 per cent to the husband.  It also reflects an overall distribution of the property and liabilities (including superannuation) in a ratio of approximately 44:56 in the husband's favour.

3. Based upon contributions standing alone this is a just and equitable result.

Matters Under Subs 75(2) of Family Law Act 1975 (Cth).

1. Although it appears from the evidence that there are matters under paras 75(2)(j) and (k) that would favour the wife under the subsection, the wife's submission is that there is no matter under the subsection requiring an adjustment.

2. The wife submits through her lawyer that there is no matter under the subsection that weighs in her favour.  That concession is therefore adopted by the Court.

3. The evidence does not disclose any matter under the subsection that weighs in the husband's favour.

Subsection 79(2)

1. Subsection 79(2) provides:

   “The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.”

2. A division of the property and liabilities of the parties, in the ration of 44 to 56 in favour of the husband, as proposed by the wife, is a just and equitable result in all the circumstances.

I certify that the preceding twenty (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date:  3 July 2007