Kahla and Mourtada

[2015] FamCA 1234

FAMILY COURT OF AUSTRALIA

KAHLA & MOURTADA [2015] FamCA 1234

FAMILY LAW – Final orders – unopposed parenting and financial orders

APPLICANT: Ms Kahla

RESPONDENT: Mr Mourtada

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1581 of 2014

DATE DELIVERED: 21 August 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 21 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cooper

SOLICITOR FOR THE APPLICANT: Randles Cooper & Co

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1.That the children of the marriage B born … 2003 C born … 2006 and D born … 2006 live with the Applicant Wife.

2.That the Applicant Wife have sole parental responsibility for the said children B born … 2003, C born … 2006 and D born … 2006.

3.As part of the Wife’s sole parental responsibility for the children, the Wife:

(a)     Shall be solely entitled to hold the children’s passports and if necessary, apply for or renew such passports without the consent of the Father; and

4.The children shall spend time and communicate with the Husband in accordance with their wishes.

5.That the Court authorise the issue of current Passports for the said children notwithstanding that the consent of the Father has not been obtained.

6.That the Husband do all such acts and things and sign all such documents as may be necessary to transfer to the Wife at the expense of the Wife, all of the Husband’s right, title and interest in the real property situate at and known as E Street, Suburb F more particularly described in Certificate of Title Volume … Folio ....

7.That the Wife do all such acts and things and sign all such necessary documents to discharge the mortgage with the Commonwealth Bank of Australia Mortgage No … and refinance the mortgage into her name alone.

8.That in the event that the Husband refuses or neglects to execute a deed/or instrument in compliance with these orders, the Registrar or Property Registrar of the Family Court of Australia be appointed pursuant to Section 106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of the Husband and do all acts and things to give validity and operation to the deeds and/or instruments.

9.That each party be solely entitled to the exclusion of the other for all other property (including choses in action) in the possession of such party as at the date of these orders.

10.Each party forego any claim they may have to any superannuation benefit belonging to or earned by the other.

11.Each party be solely liable and indemnify the other against any liability encumbering any item of property in which that party is entitled pursuant to these orders and any other liabilities in their respective names.

12.That any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

13.It is sufficient proof of the Husband’s refusal to execute the documents if the Wife swears an Affidavit to that effect.

IT IS DIRECTED THAT:

14.    The minute of orders be marked Exhibit “A” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

15.All extant applications be otherwise dismissed and removed from the list of matters awaiting finalisation in the Court.

16.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

17.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kahla & Mourtada has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1581 of 2014

Ms Kahla

Applicant

And

Mr Mourtada

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me having been referred by Registrar Sikiotis on 10 June 2015 for the purpose of it being determined finally today in the event that there is no appearance by or on behalf of the respondent. 

2. The proceedings are brought by the wife, who attends Court and is represented by Mr Cooper. The husband is overseas. As will become apparent, there has been a number of documents served on him in Country G, but there is no appearance by or on his behalf today.

3. The wife seeks that I proceed with the matter on an unopposed basis, and Mr Cooper has prepared a minute of final orders which she seeks, which I now mark Exhibit 1 and direct remain on the Court file.

4. The wife is 33 years of age and not employed outside the home. She is solely reliant on government tested pension and benefits. The home is E Street, Suburb F. The wife’s household comprises herself and the three dependent children of the marriage.

5. B is 12 years old, having been born in 2003. She is a student at I School, which is a fee-paying private school. Her brothers are C and D, both born in 2006 and therefore nine years old. Similarly, they attend the fee-paying school, I School.

6. The father is 36 years of age and, since approximately New Year’s Eve in 2010/11, has resided outside Australia and in Country G.

7. The parties were divorced in February 2014. There has been no reconciliation. I am informed that the father has remarried in Country G. The children and the mother last saw the father prior to him leaving Australia, and there has been no contact with the mother or the children by the father since approximately 2011.

8. The documents upon which the mother relies are her Financial Statement sworn on 22 January 2015, her affidavit filed in relation to divorce proceedings and sworn on 15 April 2014, her affidavit sworn on 30 October 2014 and several affidavits of her solicitor, Mr Cooper, and another solicitor, Ms Wooderson. These practitioners’ affidavits essentially relate to matters of procedural fairness and natural justice. There is also the wife’s Application, her Amended Application Initiating Proceedings filed on 19 June 2015 which was served on the husband in accordance with paragraph 2 of the order made by Registrar Sikiotis on 10 June 2015.

9. In this respect, I have regard to the evidence of Mr Cooper as deposed in his affidavit of 5 August 2015. In his affidavit, Mr Cooper deposes that the following documents were sent:  

   a)the Amended Application Initiating Proceedings;

   b)two affidavits filed by the applicant on 30 March 2015 and 1 June 2015;

   c)a further affidavit of the applicant sworn 4 June 2015; and

   d)a copy of Registrar Sikiotis’ orders made 10 June 2015.

   The documents were directed to the husband at his last-known address in J Town in Country G.

10. The wife’s Amended Initiating Application seeks specific children’s orders and specifies the financial relief sought by the wife. Those orders correspond directly with the minute of proposed order which the wife seeks that I make today. I am satisfied on the basis of Mr Cooper’s evidence that the husband has been accorded procedural fairness in relation to these proceedings.

11. I also note that the order of Registrar Sikiotis contains, at paragraph 5, the following:

    … that if the respondent fails to comply with order 3 above [which was the filing of a response and evidence in support and a financial statement] subject to the judge’s direction, the applicant be granted leave to proceed on an undefended basis at the hearing on 21 August 2015.

12. The husband has not filed any documents within the time provided by Registrar Sikiotis’ order or otherwise. I am satisfied that it is appropriate that the matter proceed today on an undefended basis.

History

1. The wife initiated these proceedings by an application filed on 15 April 2014. The parties had already been divorced earlier that year, and documents in that respect had been served out of the jurisdiction on the husband at the address in Country G to which I have referred above.

2. The wife’s application first came before the Court on 31 March 2015 when orders were made by Registrar Lethbridge adjourning the proceedings to 10 June 2015 at 10 am in the Registrar’s Direction List. There had been no appearance by the husband before Registrar Lethbridge, who proceeded to direct that the husband appear or be represented on 10 June 2015 and file and serve a Response and a Financial Statement by 15 May 2015. Service was ordered to be effected by sending the order to the husband at K Street, J Town, Country G, …, and also to his brother. The issue of the wife’s costs of that day were reserved.

3. In the wife’s affidavit filed in support of the Divorce Application (sworn or affirmed 15 April 2014), she deposes that the marriage broke down on 31 December 2011, when the husband purchased a one-way ticket to fly home to Country G, saying that he would not be returning to Australia. He took his personal possessions with him and has not returned to Australia since. She deposes at [3] that:

   The last time I contacted [Mr Mourtada] was approximately 18 months ago [which would be in late 2012] and judging by his tone, it was clear that he had moved on. He showed no interest in mine or our children’s lives, and it seems to me that he has made a life for himself in [Country G]. It was also brought to my attention that [Mr Mourtada] recently remarried on the … 2014 …

   The wife has annexed a photograph of the husband standing with a bride, and the wife deposes that to being a wedding photo of the husband.

4. On 30 October 2014 the wife swore an affidavit which had been prepared for her by a women’s legal service. She deposes that she was born in Australia in 1982 and met the father during her holiday in Country G in 2002. The parties married and thereafter came to live in Australia to have children and raise their family after the husband arrived in February 2003. The wife deposes that the husband worked as a tradesman and that she had previously worked in customer service. In 2004 the parties purchased their first home in Suburb L. The father became incapacitated for work, suffering back pain. The children were born.

5. The wife deposes to family violence in the form of physical violence, shouting and intimidation of herself and the children and that in approximately 2008 “[t]he violence escalated and I took out an intervention order”.

   She deposes in her affidavit sworn 30 October 2014:

   [19]. That in approximately 2008 the violence escalated and I took out an Intervention Order. For the week leading up to this incident my children had dentist appointments each on separate days. I did not ask for the Fathers (sic) permission so he became suspicious of our whereabouts. One night after the children went to bed his aggressive behaviour turned frightening. I attempted to call my mother and drive away however he took my phone and car keys off me. He threatened physical violence and I began to fear for my safety. While he was distracted I pretended to have a shower and climbed out the bathroom window, went to a neighbour’s house and called the police.

   [20]. That in 2008 of the month following the intervention order the Father returned to [Country G] for approximately a month and I stayed with my children at my mother’s home. He went to [Country G] because while the intervention order was in place he was staying in hotels however it became too expensive.

   [21]. That during this time apart the Father would call me every second day and explain how he was a changed man. He explained that he wanted to come home and improve our relationship. I believed him so I went to the [Suburb M] Magistrates (sic) Court and revoked the said intervention order. 

   [22]. That for a short period after the revocation of the intervention order I remained at my mother’s house and he returned to the family home. This arrangement lasted for approximately one month. After this we started living together again.

   [23]. That in 2009 the Father witnessed his friend’s murder in [Suburb F]. The police wanted him to testify as a witness. However he claimed he was receiving death threats from the people responsible which scared him.

   [24]. That shortly after this incident the Father’s behaviour did turn for the worst (sic). He threatened me with a knife and then stabbed himself twice. I forced him to call his friend to take him to the hospital. During this attack he was shaking uncontrollably and I under (sic) the impression he was having an anxiety attack. He returned home that night once he had calmed down.

   [25]. That in 2009 on one occasion we were at a family barbeque and to this day [C] and [D] recall the events which took place despite being so young at the time. The boys were busy playing and didn’t come to eat. This angered the Father to the point where he became irrational. He aggressively grabbed the boys and put them in the car. He then punched the back windscreen causing the glass to shatter which landed on them. My brothers quickly got the boys out of the car and told him to go. He left the barbeque and I stayed at my mother’s that night.

   [26]. That in 2010 the Father expressed his desire to return to [Country G] and live there permanently. I did not want to live in [Country G] as my family is here and my children are settled in school and kinder. I also didn’t want to leave because I knew at this time that I wanted the relationship to end.

   [27]. That in December 2011 the Father decided that he was going to live in [Country G], with or without me. I made it clear that I did not wish to live in [Country G] for the reasons stated in paragraph 26. When I informed him that I was not joining him in [Country G] he would get very aggressive. On one occasion he pulled out a knife and punched the floor injuring his hand.

   [28]. That on 31 December 2011 the Father bought a one way ticket to [Country G] and left Australia taking everything that he owned.

   The evidence of the wife is not contradicted by the husband. It is not improbable. I accept it.

6. The wife has filed a financial statement to which I have regard. She deposes to an average weekly income of $721 and outgoings of slightly less, being $712. The wife deposes to the former matrimonial home having an approximate value of $300,000 and her half share being worth $150,000 and there being a modest mortgage on the property of some $1,000. There is, therefore, essentially an unencumbered home. The wife also has a motor vehicle, which she has deposed to having a current market value as at 22 January 2015 of $8,000. However, the wife is not a car dealer or qualified to give that evidence and I take into account, for the purpose of these proceedings, that she has a workable car. She deposes to having household contents which are worth $5,000 but which are similarly not the subject of any valuation by an appropriately qualified person; and that at the time she swore her Financial Statement, she had a little more than $1,000 in the bank. 

7. The wife’s solicitor, Mr Cooper, swore an affidavit on 30 March 2015 in which he sets out some instructions he has received in relation to the children and property matters. He deposes:

   [7]. It is my understanding that the Respondent Husband has acquired real estate in [Country G] and I instructed my Solicitors Randles, Cooper & Co. of … to write to my former husband to attempt to resolve both parenting and property matters and a copy of a letter dated the 15^th December 2014 addressed to my husband in [Country G] is shown to me at the time of swearing this Affidavit and marked with the letter “A”.

   [8]. That I understand that a copy of that letter was forwarded to the Respondent Husband care of his brother [Mr N] who resides at [O Street, Suburb P].

   [9]. That I am instructed by the Applicant Wife that the only asset of any significance is the property at [E Street, Suburb F], which was purchased in 2006 following the sale of a (sic) earlier property in [Suburb L]. I am instructed that the property was on a large block of land and the Applicant Wife and the Respondent Husband subdivided and purchased a unit on the property and from the proceeds of the sale of the other units were able to discharge the mortgage.

   [10]. That I am instructed that the property is currently unencumbered and valued at approximately $350,000.00.

   [11]. That I am further instructed that the Respondent Husband has not paid any form of child support since separation and the Applicant Wife has not only paid for all rates and outgoing in respect of the property, but has also spent approximately $3,500.00 per year in relation to each of the children in terms of school fees.

   [12]. That it is the wife’s understanding that the husband has acquired two buildings in [Country G], as well as having a part interest in a [business].

   [13]. That on the 5^th January 2015 at 10.20 am I forwarded a text message to the Respondent Husband as follows “[Mr Mourtada] I am a Lawyer acting for your ex-wife [Ms Kahla]. Did you receive my letter of the 15^th December 2014?. Do you have an email address? When can we expect to receive a response? Regards Tony Cooper Randles, Cooper & Co. email …phone …”.

   [14]. That approximately five minutes after forwarding the text message, I received a telephone call from a male who identified himself as the Respondent Husband, [Mr Mourtada] and indicated he was telephoning from [Country G]. [Mr Mourtada] confirmed that he had had surgery on his back which had left him with a bulge on his back. He confirmed that he had re-married in [Country G]. He said that is (sic) father had died the previous year and had left him a property in [Country G], however he said that it was not worth as much as the property in Australia. He indicated he could not estimate when he would be returning to Australia if at all. He did indicate that the property in Australia was not for my client or for him, but for the children. He indicated that he would forward to me documents relating to the back surgery that he has undertaken.

   This was a document which was served on the husband pursuant to paragraph (2)(b) of the order made by Registrar Sikiotis. It is neither contradicted nor objected to on the basis of hearsay or opinion evidence.

8. The wife’s solicitors swore a further affidavit on 29 May 2015 in relation to financial matters and did so pursuant to orders made by Registrar Lethbridge on 31 March 2015 that:

   The applicant wife file and serve by pre-paid post by 1 June 2015 on the respondent, an affidavit of assets and liabilities and any other matter relevant to section 79 and section 75(2) of the Family Law Act 1975. 

   It is not clear to me why the wife’s solicitors swore the affidavit rather than the wife. But I note that it was a document also served on the husband, pursuant to paragraph (2)(b) of the orders made by Registrar Sikiotis so the husband has notice of the contents and has had an ability to respond. Amongst other things, the wife’s solicitor deposes as follows:

   [10]. That the Wife has instructed me that the only matrimonial asset of any significance is the real property at [E Street, Suburb F] which was purchased in or about 2006.

   [11]. That I am instructed by the Applicant Wife that the property is currently valued at approximately $350,000.00 and save for a mortgage balance of approximately $1,000.00 the property is unencumbered.

   [12]. That the only other assets of the wife are as set out in her Financial Statement, which includes a bank account with a modest balance and a Toyota motor vehicle valued at approximately $8,000.00.

   [13]. That the property in [E Street, Suburb F] was purchased following the sale of a previously owned property in [Suburb L], however as a result of a subdivision taking place on the [E Street] block, which was a large block, it enabled the parties to substantially discharge the mortgage on the property.

   [14]. That I am instructed that the Respondent Husband has not paid any form of child support since leaving Australia in 2011 and the Applicant Wife has been responsible for the payment of school fees of approximately $3,500.00 per child per year. All of the children attend I School... [B] is in Year 7, whilst the twins [C] and [D] are in Grade 3 at the same school.

   [15]. That in addition to supporting all children of the marriage financially since separation without any assistance from the Respondent Husband, the Applicant Wife has also paid for outgoings in respect of the former matrimonial home.

   [16]. That two market appraisals in relation to the former matrimonial home dated the 15^th January 2015 are shown to me at the time of swearing this Affidavit and marked with the letter “A1 and A2” which I note value the property at between $300,000.00 and $330,000.00.

   [17]. That in an Affidavit sworn on the 30^th March 2015 in relation to these proceedings, the Respondent Husband indicated in a telephone conversation that not only had he re-married in [Country G], but that he had received a property following the death of his father in [Country G].

   [18]. That it is in the Applicant Wife’s understanding that the Respondent Husband may also have other real estate in [Country G], together with an interest in a [business].

1. I accept the evidence of the wife and the evidence filed on her behalf. Where I make a statement of fact, it is a finding of fact. 

2. In relation to the children, orders which I make must have as the paramount consideration their best interests. In determining what is in the best interests of the children, I have regard to the primary considerations set out in the legislation, being the need to protect the children from physical or emotional harm and the benefit to the children of having an ongoing relationship with both parents. 

3. I am satisfied on the wife’s evidence that there has been a degree of family violence perpetrated by the father on her and the children which is unacceptable. It is not necessary for me to go further into the family violence because the husband does not seek any orders. I am satisfied on that basis, however, that it would be inappropriate for the husband to have parental responsibility in relation to the children or for parental responsibility for the children to be shared between him and the wife. This is by reason of the violence of which the wife complains and also his lack of involvement in the lives of the children since 2011. It is also because the husband is not participating in the lives of the children and it would be wholly impracticable to expect the wife to consult with him about long-term decisions in relation to the children.

4. I also have regard to the applicable additional considerations set out in the legislation, in a general sense. I am satisfied that it is in the interests of the children that the mother have all of the authority necessary to care for them on an ongoing basis, that they are making appropriate progress at school, and that it would be an order for the wife to be able to travel overseas with the children without the consent of the father having been first obtained.

5. In taking into account some of the additional considerations in the legislation I note the children have not seen their father since he left for Country G in 2011 and that the last conversation they had with him was in February 2012. I am satisfied the father has not taken the opportunity to make decisions in major long-term issues, nor spend time with the children or communicate with them on a regular basis. The father’s capacity to meet the needs of the children appears to be limited. He has had no involvement in the care and support for C who, diagnosed with Perthes Disease in 2012, has undergone surgery three times and requires ongoing physical therapy. The mother supports the children financially including medical, education and living expenses as the father has not paid any form of child support since separation.

6. I will make the parenting orders sought by the wife.

7. In relation to property matters, I must be satisfied that it is just and equitable to make an order altering property interests between the parties. I am so satisfied. At the moment each party has a one-half undivided part or share in the property in Suburb F which has a value of approximately $300,000 to $350,000 subject only to a very small mortgage. I accept the wife’s evidence to the effect that this property was acquired through the joint endeavours of herself and the husband, that the husband’s role during the marriage was to earn an income for such periods of time as he was able to be employed and that he was not significantly involved as a homemaker when he was not employed. The wife, on the other hand, has cared for the children continuously throughout the marriage. I also accept the evidence adduced on behalf of the wife that the husband has received some valuable inheritance in Country G but not to an extent which is as valuable as the property retained by the wife.

8. I am satisfied that with the separation of the parties and the relatively modest assets which are in Australia that it is appropriate that there be an alteration of property interests in this case.

9. As to what is appropriate by way of an alteration of property interests, I am satisfied that each party has made a valuable contribution to the acquisition and the maintenance of the assets that they have. I take into account that the wife’s contribution as a homemaker and parent must be given real recognition. I am satisfied that, post separation, the wife and the children have been able to live in a property which was partially under the ownership of the husband but that the wife has taken on complete and full responsibility for the day-to-day care of the children without any meaningful or valuable assistance by the husband or any contribution by way of child support.

10. Turning to the factors under section 75(2), I take into account that each party has the property which I have outlined above. The wife has the care and control of three children and will continue to do so for the duration of the children’s minorities. The husband has re-partnered but I do not know any details about that financial arrangement and what responsibility he has for supporting his wife. The mother has not re-partnered. The mother is eligible for a pension or allowance benefit under Commonwealth social security law. That is how she and the children are living on a day-to-day basis. 

11. I am satisfied that the father makes no contribution by way of child support or regular payments for the upkeep of the children and there has been no financial agreement entered into between the parties which curtails the Court’s jurisdiction. In this case, I do not know the value of the property which the husband has the benefit of in Country G. However, the husband has had an opportunity to put evidence in that respect before the Court and has failed or neglected to do so. I assume that whatever evidence the husband could put before the Court would not have assisted to oppose the wife’s application.

12. The needs of the wife to discharge her responsibility to care for the children are onerous both in emotional and financial terms. In financial terms, it includes the wife continuing to pay fees at a fee-paying private school for the children, as well as attending to their financial support and upkeep without contribution by the husband. I am satisfied that the husband will not contribute to the upkeep of the children in the future. In all of the circumstances, I am satisfied that it is appropriate in this case for the wife to become the sole owner of the real property in which she and the children reside subject to the mortgage. To the extent that the mortgage imposes an obligation and liability on the husband, the wife is to take over that liability and to obtain a discharge of that mortgage so that the property, when transferred into her name, is not affected by any mortgage for which the husband is in any way liable.

13. Given that the husband has not participated in these proceedings, I am satisfied that it is also appropriate to grant the relief sought by the wife in terms of section 106A of the Family Law Act. That is, in the event that the husband fails or neglects to sign documents to give effect and implement this order, that a registrar or deputy registrar of the Court be appointed to execute the documents on behalf of the husband. It shall be adequate proof of the husband’s refusal to sign documents if the wife swears an affidavit to that effect. Otherwise, all property which each party has will be theirs to the exclusion of the other.

14. That means that any superannuation entitlement of either party belongs to the party whose employment gave rise to the superannuation. The wife retains the motor vehicle and the household furniture and effects. The husband retains everything that he has in Country G.

15. I am satisfied that the orders in relation to the children as sought by the wife are consistent with their best interests and that the final financial orders sought by the wife are appropriate to be made and I make orders in the terms of the minute proposed by the wife.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 August 2015.

Legal Associate:

Date:  22 June 2016