LATHAM & KOVACS

[2019] FCCA 1208

FEDERAL CIRCUIT COURT OF AUSTRALIA

LATHAM & KOVACS [2019] FCCA 1208

Catchwords:
FAMILY LAW – Property – short marriage – wife resides in Country A, is unrepresented and unable to attend for trial – trial proceeded undefended – asset pools in Australia and Country A to be dealt with separately – contributions – wife’s misleading conduct – future needs.  

Legislation:

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

Cases cited:

Stanford & Stanford [2012] HCA 52

Bevan & Bevan [2013] FamCAFC 116

Lee Steere & Lee Steere (1998) FLC 91-626
Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143
In the Marriage of AJO & GRO (2005) 33 Fam LR 134

Applicant: MR LATHAM

Respondent: MS KOVACS

File Number: ADC 4817 of 2016

Judgment of: Judge Kelly

Hearing date: 22 June 2018

Date of Last Submission: 22 June 2018

Delivered at: Adelaide

Delivered on: 8 May 2019

REPRESENTATION

Counsel for the Applicant: Ms M Pyke QC

Solicitors for the Applicant: S J McKinnon & Associates

The Respondent: In Person as observer only by telephone link with the assistance of a Country An Interpreter

ORDERS

In full and final settlement of the parties claim for property settlement pursuant to Part VIII of the Family Law Act 1975

1. The Respondent Ms Kovacs do forthwith transfer to the Applicant Mr Latham at the Applicant’s expense all her estate and interest both at law and in equity in the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … being the land and dwelling house premises situate at Property F in the State of South Australia to the intent that the Applicant shall thenceforth be entitled thereto for his sole use and enjoyment absolutely and without further claim thereupon by the Respondent.

2. The Applicant shall pay or cause to be paid all rates, taxes and other charges and outgoings of an incidental to the said property and shall indemnify the Respondent in relation thereto.

3. The Applicant hereafter shall retain as his sole and absolute property free from any claim by the Respondent the following:

   (a)his interest in the property situate at Property D in the State of South Australia described in Certificate of Title Register Book Volume … Folio …;

   (b)his interest in Business Pty Ltd;

   (c)any motor vehicle presently in his possession;

   (d)any moneys standing to his credit in any financial institution;

   (e)all items of furniture and articles of domestic use or ornament presently in his possession;

   (f)all his estate and interest both at law and in equity which he has now or may hereafter have in any superannuation scheme, retirement benefit, early retirement or redundancy benefit;

   (g)all his estate and interest both at law and in equity which he has now or may hereafter have in any life assurance, insurance or endowment insurance policy;

   (h)all other items of property presently in his possession of whatsoever nature and from whatsoever source.

4. The Respondent hereafter shall retain as her sole and absolute property free from any claim by the Applicant the following:

   (a)her interest in the apartment situate at … Country A, also described as Country A;

   (b)her legal or equitable interest (if any) in the real estate property described as … Country A;

   (c)any motor vehicle presently in her possession;

   (d)any moneys standing to her credit in any financial institution;

   (e)all items of furniture and articles of domestic use or ornament presently in her possession;

   (f)all her estate and interest both at law and in equity which she has now or may hereafter have in any superannuation scheme, retirement benefit, early retirement or redundancy benefit;

   (g)all her estate and interest both at law and in equity which she has now or may hereafter have in any life assurance, insurance or endowment insurance policy;

   (h)all other items of property presently in her possession of whatsoever nature and from whatsoever source.

5. The Applicant shall hereafter pay and discharge all of his personal debts and liabilities incurred in his sole name to the complete exoneration of the Respondent who shall have no liability with respect thereto and the Applicant hereby indemnifies the Respondent against all claims, expenses, losses or demands incurred by her as a result of the Applicant’s refusal, failure or neglect so to pay.

6. The Respondent shall hereafter pay and discharge all of her personal debts and liabilities incurred in his sole name to the complete exoneration of the Applicant who shall have no liability with respect thereto and the Respondent hereby indemnifies the Applicant against all claims, expenses, losses or demands incurred by him as a result of the Respondent’s refusal, failure or neglect so to pay.

7. Each party is henceforth restrained from pledging the credit of the other.

8. Each party shall henceforth release the other from any liability from any claims that either one may have against the other in respect of any property either now or hereafter owned by either of them that may differ from the terms hereof.

9. Each party shall do all such acts and execute all such documents as shall be necessary to close any joint bank accounts which they continue to hold and which shall be necessary to give full force and effect to the terms of the Order herein.

10. In the event either party refuses or neglects to execute any documents necessary to give effect to the terms of these Orders herein within seven (7) days after the same shall have been tendered to the said party THEN a Registrar of the Federal Circuit Court, upon proof by Affidavit of such refusal or neglect, is hereby appointed to execute and if in her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.

11. No order as to costs.

12. All proceedings are dismissed as finalised.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4817 of 2016

MR LATHAM

Applicant

And

MS KOVACS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant husband, Mr Latham, and the Respondent wife, Ms Kovacs, commenced cohabitation in … 2014 and were married on … 2014.  The background and circumstances of their relationship was unusual, as discussed further in these Reasons. They separated in May 2016, less than two years after they began living together.

2. The husband remains living in Adelaide but the wife returned to live in Country A and has subsequently remarried.  The parties have been unable to resolve property proceedings and it is for the Court to determine this dispute.

Background

1. The husband was born in Country B on … 1955 and is 64 years of age.  The wife was born in Country A on … 1972 and is 47 years of age.

2. The husband had been previously married and has three adult children from that relationship. He divorced from his first wife in 2013. He is a self-employed tradesman trading under his business name, Business.

3. The parties were introduced by a mutual friend through Facebook and began communicated via Facebook and Skype.  The wife was living in Country A at that time with her mother and her adult son from a previous marriage.

4. The on-line friendship continued to a point where the parties decided to meet in Country C, where they spent approximately two and a half weeks together in … 2014.  The relationship must have flourished because the parties became engaged in Country C.  The husband then returned to Australia and the wife returned to Country A.  The husband applied for a Visa for the wife, which was granted in … 2014.  The wife arrived in Australia in … 2014 and lived with the husband at his Property D property.

5. The husband says he paid for the wife’s flights and all of their expenses while in Country C. The wife disputes this, but it is not a matter that affects my decision in these proceedings.

6. The parties married on … 2014 and soon after the wife returned to Country A on … 2014. The husband then travelled to Country A in … to meet the wife’s family and the parties returned to Australia together on … 2014. 

7. At the time of cohabitation the husband owned substantial assets, including his home at Property D and an undeveloped investment property at Property E. The wife also owned assets in Country A, including a property located at Country A, but her assets were more modest in value.

8. In … 2014, the husband established a joint NAB Account for the parties to use but the husband acknowledges that the wife held the only card associated with that account.  The husband made regular deposits into that account for the wife’s personal use. 

9. In … 2015 the wife commenced working as a labourer and the parties established a business called “…”.  The husband purchased all the equipment necessary for the business and met the initial operating expenses.

10. In that same month the husband sold his investment property at Property E, for the sum of $813,510.  In May 2015, the parties jointly purchased a property at Property F for the sum of $568,081, which was paid for solely by the husband from the net proceeds of the Property E sale.  The parties moved into the Property F property in June 2015.  The property at Property D was subsequently rented out and continues to be tenanted.

11. In June 2015, the wife suggested to the husband that they pay 45,000 Euros to buy an apartment in Country A.  The property was purchased in the wife’s name with her mother acting as Power of Attorney.  The husband transferred an initial deposit of $10,000 and the balance of $68,823.12 was transferred from his account on 10 September 2015.  The husband has since discovered that the apartment was purchased for only 26,000 Euros, not 45,000 Euros, as claimed by the wife.

12. The wife returned to Country A numerous times during the parties’ short marriage, to provide support to her elderly mother and her son.  In addition to her three month trip in 2014, she travelled to Country A in … 2015 for a period of two months, in … 2015 for a period of nine weeks and again on … 2016.  However on this last occasion, the wife did not return to Australia.

13. The husband travelled to Country A on … 2016 in an attempt to reconcile the marriage, but discovered the wife had entered into a new relationship and would not be returning to Australia. I conclude that separation occurred in May 2016.

The proceedings

1. The husband filed his Application, supporting Affidavit and Financial Statement on 13 December 2016 with the first return date allocated to 2 February 2017.

2. The wife was represented at that hearing by a Victorian solicitor, Mr Rajic, who attended by telephone link.  Orders were made for the wife to file her Response, answering Affidavit and Financial Statement within 28 days. The parties were ordered to provide mutual informal discovery and to attend external mediation no later than 16 June 2017 with the cost of the mediation to be shared equally between them.  The wife and her solicitors were given liberty to attend the mediation by telephone link.

3. The wife filed her Response, Affidavit and Financial Statement on 11 May 2017 and the matter was next before the Court on 11 July 2017.  Unfortunately mediation had not taken place as both parties complained the other party had not provided proper discovery.  The Court extended the time for the mediation to 13 October 2017 and the proceedings were adjourned to 23 November 2017 for consent orders or trial directions.

4. On 5 September 2017, the Court received an email from the wife’s solicitors requesting that the matter be urgently listed in relation to the cost of the mediation.  The matter was listed on 21 September 2017 when the Court made specific orders that the parties attend mediation with Ms G. The husband was directed to meet the costs associated with the mediation in the first instance with the wife to reimburse the husband for her half share of the mediation expenses at settlement.

5. Mediation was unsuccessful and when the matter next came before the Court on 23 November 2017, the proceedings were listed for trial on 21 and 22 June 2018.  Various orders were made for discovery as well as valuations of any assets the value of which were not agreed, including the real estate assets in Australia and Country A.  Trial Affidavits were to be filed by 4 May 2018.

The trial

1. The wife did not file any trial material and ultimately her solicitors filed a Notice of Withdrawal on 12 June 2018.  On 17 June 2018, the wife sent an email to the Court confirming she was no longer represented, that she was living in Country A and could not afford to travel to Australia for the trial. 

2. The matter was called on for directions on 21 June 2018, being the first day of trial.  The wife appeared in person by telephone link from Country A and the Court arranged for a Country An interpreter to assist her.

3. Counsel appearing for the husband, Ms Pyke QC, argued that the trial should proceed on an undefended basis, given the wife was not present.  She noted that the wife had failed to comply with the Court’s previous orders regarding discovery or the filing of trial material, whereas her client was ready to proceed.  She further submitted that the wife could not possibly participate in the trial if she was not personally present and the trial should not be delayed at this late stage.

4. Counsel further informed the Court that a settlement proposal was emailed to the wife directly on 14 June 2018, in an endeavour to resolve the matter.  This correspondence also reminded the wife that she was required to attend Court in person for the trial if negotiations were unsuccessful.  The wife confirmed she received this email correspondence from the husband’s solicitors. 

5. The wife submitted that her solicitor had not kept her informed about the Court proceedings and that she was unaware of the trial dates, but I reject those submissions.  The Court is entitled to assume that a litigant will maintain contact with their lawyer and manage the litigation process effectively.

6. The Court acknowledged that the wife was in a difficult position as her lawyer had withdrawn so recently.  She lives in Country A and has no financial means to return to Australia for the trial. However, even if the Court was to adjourn the trial, there is no realistic expectation that the wife could afford the travel to Australia at a later date. 

7. Ultimately the Court concluded that both parties had ample time to prepare for the trial since November 2017 and that a final hearing could not take place over the telephone from Country A.  Accordingly, the Court ordered the matter should proceed to a final undefended hearing on the husband’s Application.  As a matter of justice and equity the Court also received into evidence the wife’s Affidavit and Financial Statement filed on 11 May 2017.

The undefended hearing

1. The hearing commenced on the next day, 22 June 2018.  While the trial proceeded on an undefended basis, arrangements were made for the wife to listen to the proceedings by telephone link, with the assistance of a Country An interpreter who was present in Court.

2. The husband relied upon the following documents:

   a)His trial Affidavit filed 4 June 2018;

   b)His Financial Statement filed 6 June 2018;

   c)Affidavit of Ms H filed 16 May 2018.

   The husband was available for cross examination, but this was not required in an undefended hearing.  He tendered a range of documents and financial records which supported his sworn Affidavit and I accept and rely upon his evidence.

3. As stated earlier, the Court took into consideration the wife’s Affidavit and Financial Statement filed 11 May 2017 for the purposes of the undefended hearing.  The wife’s failure to disclose that she re-married on … 2016 was a startling omission from her Affidavit.

4. The husband’s proposed orders are attached to his Case Outline.  He seeks orders to the effect that the wife transfer her interest in the Property F property to him, that he retain his interest in the Property D property together with other assets in Australia, including his motor vehicle, furnishings, business and superannuation.  The husband proposes that the wife retain all of the assets in Country A including her interest in the Country A apartment, which he describes as … Apartment, Country A.

5. It was unclear what precise orders the wife was seeking.  When asked directly by the Court, she responded by saying she only wanted what she was entitled to receive according to Australian law.

6. The husband tendered the following documents for the Court to consider:

   ·Exhibit H1 – NAB Classic Saver Banking account … from 16 January 2014 to 15 March 2016.[1]

   ·Exhibit H2 – NAB iSaver Account … from 16 September 2014 (opening balance of nil) until 10 September 2015 confirming the initial deposit of $813,000 from the sale of the Property E property and various transactions referred to elsewhere in these Reasons.[2]

   ·Exhibit H3 – Purchase Contract and English Translation dated 9 October 2015, between the vendors Ms J, Ms K and Mr L and the purchaser Ms Kovacs represented by her mother Ms M to purchase the property …  Apartment, Country A for an agreed purchase price of 26,000 Euros.[3]

   ·Exhibit H4 – Excerpt and English Translation from the Register of Marriages of Country A Church recording the marriage of Ms Kovacs to Mr N on … 2016.[4]

   ·Exhibit H5 – Purchase Contract and English Translation dated 31 July 2017 between the Respondent vendor (Ms Kovacs) and Mr N for the property described as … Country A for a consideration of 20,000 Euros.[5]

   [1] Exhibit H1

   [2] Exhibit H2

   [3] Exhibit H3

   [4] Exhibit H4

   [5] Exhibit H5

7. The husband also provided the Court with a statement for the wife’s NAB business account no … for the period 17 February 2015 – 16 May 2016.[6]  This document was marked for identification as W1, as it did not strictly form part of the husband’s case.

   [6] Exhibit W1

Legal principles

1. The relevant legal principles governing any application for property settlement are set out in Part VIII of the Family Law Act. Section 79(1) authorises the Court to make such orders between the parties as it considers appropriate. Section 79(2) makes it clear that the Court cannot make an order for property settlement unless it is just and equitable to do so. The High Court noted in Stanford & Stanford[7] that this condition is generally met where the parties have separated, because “the common use of property” by the parties is no longer viable. 

   [7] Stanford & Stanford [2012] HCA 52 at para.42

2. In considering the terms of any such order, s.79(4) requires the Court to take into account the parties’ contribution to the maintenance and acquisition of the asset pool during the marriage, including direct and indirect financial contributions, direct or indirect non-financial contributions and any contribution to the overall welfare of the family, including in the capacity of homemaker or parent.

3. Section 79(4)(d) directs the Court to consider the impact of any proposed order upon the earning capacity of either party. Section 79(4)(e) refers the Court to the matters set out in s.75(2), factors that generally relate to each party’s future needs.

4. The High Court in Stanford & Stanford went on to identify three “fundamental propositions” to guide trial Judges determining property settlement proceedings.  These propositions were summarised by the Full Court in Bevan & Bevan[8] as follows:

   “1.Determination of a just and equitable outcome in an application for property settlement begins with the identification of the existing legal and equitable interests (as determined by common law and equity);

   2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;

   3.The determination that a party has a right to a division of property fixed by reference only to the matters in s.79(4), and without separate consideration of s.79(2), would erroneously conflate what are distinct statutory requirements.”[9]

   [8] Bevan & Bevan [2013] FamCAFC 116

   [9] ibid, at para.73

1. In determining any application for property settlement, the Court is not embarking upon an arithmetical exercise but rather an examination of all the relevant factors set out in s.79(4). Earlier Full Court authorities have identified a four step process that can assist the Court in reaching a just and equitable decision.[10]   

   [10] Lee Steere & Lee Steere (1998) FLC 91-626;

2. Assuming the Court is satisfied that it is just and equitable to make an order for property settlement, the Court must identify the parties’ legal and equitable interests in the assets arising from their relationship, together with their liabilities. The Court should then assess each party’s contributions during the relationship in accordance with s.79(4)(a)-(c).

3. The third step requires the Court to consider the range of factors set out in s.79(4)(d)-(g), including the future needs factors identified in s.75(2). The Court should then consider its findings and, if the Court is satisfied that it is just and equitable to do so, make orders adjusting the parties’ property interests.

4. The Full Court in Bevan reminded trial Judges that the “four step process” is not legislatively mandated.  Rather, it provides a structured process towards the ultimate requirement, which is to ensure that a property settlement order is only made when the Court is satisfied that it is just and equitable to do so and that the terms of the order itself are also just and equitable.[11]

   [11] Bevan & Bevan, supra,  para.86

The matrimonial asset pool

1. The relevant matrimonial asset pool is identified in the husband’s Case Outline and I accept his estimated valuations in relation to the assets held in Australia, but conclude it is appropriate to rely upon the wife’s estimated values for the assets held in Country A, subject to my findings that follow.

2. The parties have made very different contributions towards the assets located in Australia compared to the assets located in Country A and I conclude it is appropriate to deal with each pool of assets separately.

3. The husband has established that the wife sold her interest in the Country A property to her new husband Mr N on 31 July 2017, for the sum of 20,000 Euros.[12] The wife failed to disclose this transaction to the husband or to this Court.

   [12] Exhibit H5

4. The sale price was substantially less than her estimated value of 50,000 Euros, which casts significant doubt on the validity of this transaction. While the wife may have no ongoing legal interest in the property, I conclude she is likely to retain an equitable interest. She has certainly retained the net proceeds of sale. In the absence of any clear evidence, I will include the net proceeds of sale received by the wife as a relevant matrimonial asset and will address the wife’s potential equitable interest pursuant to s.75(2)(o).

5. The husband says the wife owns a motor vehicle and personal effects in Country A. The wife lists their value in her Financial Statement and I will include these items in the asset pool.

6. Based on the limited evidence before the Court, I find the asset pools are as follows:

ASSETS IN AUSTRALIA

Property D (H)     less mortgage

  E $800,000
  ($267,304)

  $532,696

Property F (joint)

  E $540,000

Motor vehicle (joint)

  E $15,000

NAB funds (H)

  $14,617

Latham Superannuation Fund (H)

  $369,000

Business, including vehicle & equipment (H)

  E $33,000

Household effects at Property D & Property F (H)

  E $25,000

TOTAL

  $1,529,313

ASSETS IN COUNTRY A

Wife’s property at … Country A (W)

                  E 26,000 Euro

           (approx A$40,000)

Wife’s proceeds of sale from the property at …, Country A

                  E 20,000 Euro

           (approx A$30,000)

Wife’s motor vehicle

  E $3,000

Wife’s household contents

  E $15,500

TOTAL

  E $88,500

1. Based on the above estimates, the available asset pool in Australia is valued at approximately 1.5 million dollars. The available asset pool in Country A is much less, valued at approximately $88,500.

Contributions

The parties’ initial financial contributions

1. The parties’ marriage was relatively short and the weight to be attached to their non financial and homemaker contributions is limited. Accordingly I will focus my discussion on their financial contributions.

2. The wife states that prior to the marriage she owned a property at …, Country A with an estimated value of 50,000 Euros, together with a motor vehicle with an estimated value of 5,000 Euros and savings of approximately 20,000 Euros. The husband concedes that the wife owned the property, but does not know its value.

3. Regarding the wife’s claimed savings, there is no evidence to confirm that these funds existed.  The wife says that she transferred these funds to the husband’s bank account in Australia, but the bank records tendered by the husband do not support this claim.   I conclude that the wife brought assets of some value into the marriage, but her initial contribution is reflected in the assets still held by her in Country A.

4. The husband says that he owned the following assets at the beginning of the relationship, noting that he sold the Property E investment in February 2015:

   Property at Property D  E$800,000

   less mortgage  ($231,800)     E $568,200

   Property E investment property (sale proceeds)  $813,510
   Savings (personal)  $9,908
   Savings (business)  E$76,000
   Work van  E$15,000
   Business  E$33,000

   Superannuation (Latham SMF)   $308,733

   E $1,824,351

5. These figures may be overstated. For example, the husband says that the Property D property was valued at $800,000 in 2018 and it is unlikely to have held that same value in 2014.  Nonetheless I am satisfied that he brought substantially greater assets into the marriage and this initial contribution is still represented in the existing Australian asset pool.  It is clear that the husband made an overwhelming contribution to the matrimonial assets held in Australia, which were either owned by him prior to the relationship, or were paid for from the sale of assets owned by him prior to the relationship. 

The parties’ contributions during the marriage

1. During their brief marriage both parties directed their earnings towards their marital finances. The husband ran a successful business as a tradesman. He also received rental income from the Property D property, but that income was directed towards the mortgage and other associated outgoings.

2. The wife earned an income through her business, which appears to have been a successful enterprise. The husband says he assisted the wife in the business, as well as attending to all the necessary administration, such as invoices and GST returns.  The wife disputes the extent of the husband’s involvement in the day to day operation of the business, but agrees that he assisted with the paperwork.

3. All earnings from the business were deposited into the NAB Account in the name of …. The husband says that the wife had exclusive use of that account, but she disputes that and says the husband retained complete control of this account and her earnings.  It is impossible for the Court to clarify who had control of this account, but that does not affect my determinations in this matter. 

4. I am satisfied that both parties were actively involved in the business.  The wife was the primary operator but the husband assisted her and was responsible for running the business during those periods when she was absent from Australia. 

5. Taking into account these findings, I conclude that the wife’s contribution to the Australian asset pool was minimal.  While the wife was working and earning an income, those monies are not in any way reflected as contributions towards the value of the Australian asset pool. 

6. The husband made a direct financial contribution to the Country An asset pool, through the funds transferred for the purchase of the Country A apartment in 2015.  The husband initially transferred $10,000 for the deposit on the apartment, with the balance of $68,853 transferred from his NAB account No … on 10 September 2015.

7. On that same date, 10 September 2015, the sum of $20,000 was withdrawn from the wife’s business account and deposited into the husband’s NAB account.[13] The wife argues that this $20,000 withdrawal actually represents her pre-marital savings, but the bank records indicate that the funds in this account arose from payments made for business services undertaken by her business.[14]  I conclude that funds from both parties’ accounts were directed to the purchase of the Country A apartment. 

   [13] Exhibit W1 and H2 regarding the transfer of funds

   [14] Exhibit W1

8. I find that the wife misled the husband regarding the purchase of this apartment.  The wife informed the husband that the purchase price was 45,000 Euros and he transferred over $78,000 to the wife in Country A, sufficient to meet that price. The husband has since discovered that the wife paid only 26,000 Euros for the apartment, or approximately A$40,000.[15] The whereabouts of the remaining $38,000 is unknown but must have been retained by the wife or her mother. I will address this further pursuant to s.75(2)(o).

   [15] Exhibit H3

9. The wife’s contribution to the asset pool in Country A is greater, given that she owned another property prior to the marriage, but I cannot allocate a precise percentage contribution to either party, given the limited evidence before me.

10. The husband says that he and the wife regularly sent funds to her mother in Country A and I accept his evidence in that regard.  There was a further withdrawal of $20,000 from the wife’s business account on 13 November 2015 and I accept the husband’s evidence that the wife used these funds for her trip to Country A from … 2015 to … 2016.

Section 75(2) relevant factors

(a)   the age and state of health of each of the parties

1. The husband has just turned 65 years of age and has no major health issues.

2. The wife is 46 years of age.  She suffered a spinal injury and has ongoing problems with her back.

(b)   the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

1. The husband continues to work as a self employed tradesman and receives rental income from the property at Property D.  He seeks to retain all of the assets held in Australia, which would leave him in a comfortable financial position.

2. The wife now lives in Country A and says she is physically unable to work. The husband believes she may be working as a labourer but I cannot make any finding in that regard. Based on her Affidavit, she retains her interest in the Country A apartment and may receive a rental income from this property. 

(c)   whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

1. Not relevant. 

(e)   the responsibilities of either party to support any other person

1. No party has any responsibilities in this regard.  I note, however, that the wife lives with her mother in Country A and is providing support to her adult son.

(f)        the eligibility of either party for a pension, allowance or benefits

1. Not relevant.

(k)   duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration

1. The marriage was very short, lasting less than two years.  The parties actually lived together for an even shorter time, given the wife’s travel to Country A.

2. The wife says her physical health deteriorated during the marriage, but the only medical report is dated 24 April 2014, before she married and moved to Australia.[16] There is no evidence to suggest that her health declined further during the parties’ brief married life together.

(m)  if either party is cohabiting with another person – the financial circumstances relating to the cohabitation

[16] Wife’s Affidavit filed 31 July 2017, Annexure “K-1” Specialist medical report dated 14 April 2014

1. The husband is not cohabitating with any other person.

2. The wife has misled the Court in relation to her living arrangements. In her Affidavit signed on 10 May 2017, she failed to disclose that she had commenced a new relationship and re-married on … 2016.  The Court had no information regarding the wife’s present financial arrangements with her partner.

3. There is a serious question regarding the status of this marriage, as the parties are not yet divorced, as far as the husband is aware.  The Marriage Certificate states that the wife has not been previously been married, which is clearly incorrect.[17]  This raises a significant concern about the wife’s truthfulness.

(o)   any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account

[17] Exhibit H4

1. Taking into account the above discussion, a modest adjustment in the wife’s favour on account of s.75(2) factors may have been appropriate, but I conclude that any such adjustment is offset by the wife’s dishonest conduct and the funds she has retained in that regard.

2. The wife misled the husband regarding the purchase price for the apartment and has had the benefit of approximately $38,000, the balance of the funds that were transferred by the husband to Country A in September 2015, but not required for the purchase. 

3. The wife also failed to disclose that she had sold her other apartment to her current husband. Given that the transfer price paid for this property was much less than her estimated value of 50,000 Euros, the wife may well retain an ongoing equitable interest in this real estate, as discussed earlier in these reasons.

4. Considering the parties’ very short marriage and my findings regarding the wife’s conduct, I decline to make any adjustment pursuant to s.75(2) in relation to either asset pool.

Conclusion

1. Based on all of the above findings, I conclude that final orders should be made in accordance with the husband’s proposed orders.  The husband will be retaining the assets in Australia with an approximate value of 1.5 million dollars, but this outcome reflects his overwhelmingly greater direct financial contribution to these assets.  The wife’s contribution to the acquisition and preservation of the assets in Australia was minimal. 

2. The wife will retain all of the assets in Country A.  These assets are much more modest in value but she is retaining all of the benefit of the husband’s direct financial contributions, including those additional funds transferred but not used for the apartment purchase.

3. Considering all of the above, the Court concludes that it is just and equitable for the husband to retain all of the assets and associated liabilities in Australia and for the wife to retain all of the assets in Country A.

4. I therefore make final Orders for property settlement as set out at the commencement of these Reasons.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Date:     8 May 2019

Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143;
In the Marriage of AJO & GRO (2005) 33 Fam LR 134