Lazar and Gordana

[2013] FamCA 390

FAMILY COURT OF AUSTRALIA

LAZAR & GORDANA [2013] FamCA 390

FAMILY LAW – PROPERTY – Undefended final orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Lazar

RESPONDENT: Ms Gordana

FILE NUMBER: MLC 9514 of 2011

DATE DELIVERED: 8 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 March 2013

REPRESENTATION

THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Mr Goddard

David Stagg Tonkin & Company

Orders

1. That the application of the husband filed 8 February 2012 is dismissed.

2. That solicitors Patrick J Cannon Coburn and Associates forthwith pay to David Stagg Tonkin and Company on behalf of the wife, the funds held by them in trust on behalf of the husband and the wife.

3. That pursuant to s 90MT of the Family Law Act 1975 (Cth), the amount of $18,194.10 is allocated as the base amount to be deducted from the interest of the husband in the AMP Flexible Super-Super Account (“Plan”) – Account … and whenever a splittable payment becomes payable out of the interest of the husband in the AMP Superannuation Savings Trust, the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have otherwise been made but for these orders.

4. These orders shall have effect from the fourth business day after the day upon which a sealed copy of these orders is served upon the trustee.

5. That after service of a payment split notice pursuant to Regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such things required for the creation of a new interest in her name in a superannuation fund of her choice.

6. That the value of a transferable benefits to be so transferred from the husband’s entitlement to the wife’s entitlement shall be calculated by the trustee in accordance with Regulation 7A.11 of the same Regulations and pursuant to Regulation 14F of the Family Law (Superannuation) Regulations 2001, any payments made from the husband’s interest in the superannuation fund after the trustee has created the new interest for the wife are not splittable payments.

7. That a copy of these orders be served upon the trustee of the said superannuation fund as soon as practicable.

8. That each party otherwise retain to the exclusion of the other all other assets in the possession of such parties as at the date of these orders.

9. That all outstanding applications are otherwise dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the reasons this day be transcribed.

3. That the trustee of the said superannuation fund have liberty to apply within 14 days of the service of these orders to set aside them if they consider that they have not been accorded procedural fairness.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lazar & Gordana 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 9514 of 20114

Mr Lazar

Applicant

And

Ms Gordana

Respondent

REASONS FOR JUDGMENT

1. This is an application that was sent into the judicial duty list from a hearing before Registrar Mestrovic in January 2013.  At 10 minutes to 11 o’clock this morning the husband was called outside of the Court and has not appeared.  It is important that I record that this is an application for property settlement and the respondent to the proceeding is the wife and she now seeks to proceed to have the Court dismiss the husband’s application and to proceed on an undefended basis in respect of the orders she seeks.

2. I propose to grant the wife leave to proceed without further notice to the husband.  To come to that position one has to go through something of a tortuous path but for the record I think it needs to be recorded. 

3. The proceedings were commenced by the husband as the applicant on 21 October 2011.  He sought both parenting and property orders, and to his application the wife filed a response on 10 November 2011.  She also sought both property and parenting orders.

4. The respective applications were filed in the Federal Magistrates Court.  There appears to have been a variety of appearances before Federal Magistrate Riley culminating in an order of 10 February 2012 transferring the proceedings to this Court.  The order on that day notes two important things:  the first is that both parties appeared before the Court represented by counsel;  the second is that the reason for the transfer was noted that the matter was complex involving children and property along with allegations of sexual abuse and likely to take more than four days, particularly as interpreters would be required.  The learned Federal Magistrate considered that the matter might be suitable for inclusion in the Magellan list.

5. The matter then came before this Court and was considered by Registrar Mestrovic in April 2012. At that stage both parties were represented. The registrar on that occasion made an order under s 11(F) of the Family Law Act 1975 (Cth) (“the Act”) and otherwise adjourned the matter to 29 June 2012 for an interim hearing. On 29 June 2012, not only did both parties appear represented by counsel before the senior registrar, but counsel also appeared on behalf of the independent children’s lawyer. On that occasion it would appear that the parties reached agreement about parenting orders and the Court made consent orders.

6. An important order on 29 June was that the substantive proceedings be placed in a list of cases awaiting allocation for final hearing, thus for all intents and purposes the parties had all of the matters done that they needed to do of an interlocutory nature and the matter was then to await a trial.  Correspondence on the Court file from the solicitors for the wife indicated that, notwithstanding the parenting orders made in June which required the husband to spend time with the children at a contact centre, the husband had ceased attending and indeed had left the country.  The solicitors for the husband appear then to have simply gone off the record. 

7. The evidence would suggest that the husband had gone to live in Croatia.  That prompted the Court to relist the matter before the senior registrar where it came back on for hearing on 19 November 2012.  The senior registrar was sufficiently satisfied to make orders, absent the husband, and he discharged the existing parenting orders and made a variety of new ones.  I note that those orders appear to be of an interim nature but perhaps that is somewhat academic.  Thus, by 19 November, the matter was ready for trial in respect of property matters and the senior registrar listed the matter again before Registrar Mestrovic on 11 January 2013 for directions to have the case listed as an undefended hearing.

8. When the matter came on for hearing before the registrar on 13 January 2013 the wife appeared on her own behalf and there was no appearance for the husband.  The registrar was sufficiently satisfied to make an order that the matter be listed today for an undefended hearing but as a matter of precaution ordered that a variety of documents be served upon the husband at an email address.  Looking at the order made it is quite clear that if the husband received those documents he would be aware of not only what the case was about but what was going on. 

9. One of the paragraphs of the order required service of a precise minute of orders sought;  that has now been provided to me today in an affidavit handed to me this morning which I have given leave to file.  The solicitor for the wife deposes to the fact that the various documents ordered by Registrar Mestrovic be served, and have been served, at the email address.  There is no evidence of any subsequent contact between the husband and the solicitors and/or the wife, and certainly nothing on the Court file that would indicate that the husband has been in touch with the Court.  I am satisfied that the husband is aware of these proceedings, not only because he was in fact the initial applicant, but also because of the orders made on 11 January which have been satisfied.  On that basis there is no reason for the Court to hold up the proceedings any longer.

10. Chapter 11 of the Family Law Rules provides that at any time a court considers it just to do so it may dismiss a proceeding and on the basis that the husband has not attended to prosecute his application. The first order I propose to make is a dismissal of his initiating application which I note was amended and filed on 8 February 2012.

11. I turn then to the substance of the case.  The wife relies upon, for jurisdictional purposes, the response that she filed on 10 November 2011, but in respect of the precise orders she is seeking I have been referred to the minute of orders sought which was served pursuant to the orders of 11 January 2013. 

12. The first step in the property process is to be satisfied that it is just and equitable to make an order.  In this case there may be seen to be three classes of assets. 

13. I find that the assets in this case are first:  $26,000 or thereabouts in a solicitor’s trust account;  secondly, an entitlement of the husband in an AMP superannuation fund of about $18,000;  and thirdly, two motor cars, the whereabouts of which appear to be unknown, but on the basis of an admission against interest at least one of those cars was nominated to be worth about $11,000 by the husband.

14. The first question is whether or not it is just and equitable to make an order.  It is clear that the money sitting in the solicitor’s trust account was put there by the parties as a result of an order of the Federal Magistrates Court.  Although it does not say so, it seems clear that the solicitors are holding the monies in the capacity as trustee for both parties.  Absent an order, the wife cannot access what is effectively an acknowledgement by the husband of it being her own money because it seems on the evidence that the $26,000 is part of 36 or $37,000 drawn by the husband from the home loan to which both parties were indeed the mortgagors.

15. It would not be just and equitable for the wife to be deprived of that entitlement, whatever it might be, that she has in that trust account.  Similarly, looking at the evidence, the money recorded as being that of the husband in the superannuation fund seems to have been accrued during the time that the parties were together.  I do not have any specific details but I have concluded that the husband would have, as a married person, on his death, entitled the wife to share in whatever the proceeds were of his superannuation fund.  So to that extent the wife might be seen to have some sort of equitable interest in his superannuation entitlements.

16. In relation to the third category of property, it would seem again on the evidence that they were cars that were purchased during the relationship and, as I have said in other cases, the registration of a motor vehicle is simply proof of registration, not proof of ownership, and presumably therefore if the parties bought the motor vehicles together then the parties own those properties jointly. In the circumstances absent an order of the Court under s 79 of the Act it would not be just and equitable in favour of the wife and therefore I should make an order.

17. In the second step the Court is required to look at the provisions of s 79 of the Act. Here the evidence is set out in the affidavit of the wife, filed on 7 February. The wife deposes in some detail to meeting the husband in Croatia in 2001 and in 2006 she moved to live in Australia and they were married back in Croatia in October 2007. They did not live together prior to that time and they ultimately separated in September 2011.

18. The wife deposes to the fact that when she arrived in Australia she worked part-time with a government agency;  two children were born to the relationship.  The children are aged four years and one and a half years of age respectively.  The wife says, and it does not obviously seem to be controversial, that when she and the husband married they had no assets of any great substance.  That seems to be borne out by the three categories to which I have referred.  In addition, I am told, that pursuant to an order of the Court, and that certainly seems to be what happened, in 2011 or 2012 the home that they owned was sold and there was no money left over after the mortgagee was paid out. 

19. Subsequent to separation a child support assessment was made but since July 2012 the husband has not made any payments.  There are currently assessed arrears of $2575 and on the basis of that one could presume that there is little prospect that the husband will make any payments in the future.  In addition there is the obvious problem of the fact that he seems to be in Croatia.

20. The wife then refers to the fact that in the future she has some problems about obtaining employment.  She has deep vein thrombosis and her health, whilst not good, would certainly prevent her from having a sedentary job in an office in any event.  She is currently studying full-time for a Diploma in an education field and that involves both study and work placement.  At the moment she is working in the education field and she does not expect that she will have full-time work until February 2014 when she completes not only the diploma but the youngest child will commence school.

21. On any view there would seem to have been no significant disparity between the parties’ contributions during the period of time that they were together.  There has been a significant contribution by the wife subsequent to separation.  On that basis, to the extent that it is necessary to say so, I would certainly say that the wife’s contribution far outweighs that of the husband, bearing in mind he has not provided any physical support, let alone any financial support since the parties separated.

22. Section 79(4)(e) requires the Court to look at matters set out in s 75 subsection (2) to the extent they are relevant. Here I have the wife looking after very young children; her income is restricted; she is dependent upon the taxpayers’ purse; she is currently studying with the prospect that once the children are all in school she will have some income stream for the future. I can take judicial notice of the fact that it is commonly said in the daily press in Australia that people who work in the wife’s industry are amongst the lowest paid people around. I can conclude therefore that the prospect of the wife having a comfortable lifestyle in the future is rather slim.

23. Because of the fact that I do not have any information from the husband, he having not decided to participate in these proceedings, I have no idea what he is doing in Croatia nor do I have any understanding of what his health position is.  What I do know is that the wife asserts, and it does not seem to be disputed by the material I have read from the husband, that there were two motor cars and he has either the cash from them, or the possession of them, or at least they are under his control.  On the basis that the wife points to the husband’s admission against interest that one of them is worth $11,000 I can presume that the other one is or was worth something either less or around that figure, so any view of the facts the husband at least has some assets out of what is a very small pool. 

24. The evidence also points to the fact that the husband worked during the relationship and the wife was the primary carer of these children. The working of the husband enabled him to accrue the superannuation entitlements. If I was to make an assessment based upon s 79(4)(e) requirements I would again find, without any hesitation, that the wife has a significant need in the future and some further adjustment should be made in her favour.

25. Once that exercise is undertaken the Court is obliged to look at whether or not an order should be made, and if it is to be so made then it must be just and equitable to both parties.  Here I have a very small amount of money to play with because the reality is there is only just over $26,000.  The superannuation is clearly a form of property but it cannot be treated in the same way as the cash can be in the trust account.  The wife has many years ahead of her before she could get any real benefit out of that superannuation. 

26. I am informed at this stage that the trustee of the superannuation fund has not been served with notice but, subject to the trustee being given liberty to apply to set aside the orders on the basis that they are not fair to them, I propose to make an order that the splitting order occur as I will set out.  There is little point in me making any order in relation to the motor cars because they would undoubtedly be difficult to implement. 

27. On any view therefore the just and equitable outcome in this case is for the wife to have all of the money in the trust account and all of what is known to be the husband’s superannuation.  Based on the facts that I have outlined and the findings I have made I propose to make orders in those terms.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 March 2013.

Associate: 

Date:  22 April 2013