Liatos and Liatos
[2009] FMCAfam 1138
•30 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIATOS & LIATOS | [2009] FMCAfam 1138 |
| FAMILY LAW – Property – undefended hearing – husband in Greece – wife seeking to retain former matrimonial home in Darwin. |
| Family Law Act 1975 (Cth), ss.75, 79 |
| Applicant: | MS LIATOS |
| Respondent: | MR LIATOS |
| File Number: | DNC 271 of 2008 |
| Judgment of: | Terry FM |
| Hearing date: | 28 October 2009 |
| Date of Last Submission: | 28 October 2009 |
| Delivered at: | Darwin |
| Delivered on: | 30 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Marris |
| solicitor for the Applicant: | Marris & Co |
| The Respondent: | No appearance |
ORDERS
That forthwith upon being requested by the wife’s solicitors to do so the husband sign all documents and do all acts and things required to transfer to the wife at the expense of the wife the whole of his right title and interest in Property W being Lot [omitted] Town of [omitted] from Plan [omitted] and being the whole of the land contained in Certificate of Title Volume [omitted] Folio [omitted].
That within 42 days of the date of these orders the wife refinance into her sole name the loan from Westpac Banking Corporation secured over the W property by mortgage No. [omitted] and the husband do all acts and things and sign all documents required to permit the existing mortgage to be discharged.
That the wife indemnify the husband and keep him indemnified from liability for the said loan and for all rates taxes and outgoings owing in respect of the W property.
That each party is otherwise declared the owner of the property and superannuation in their possession or under their control.
That in the event that either party refuses or neglects to comply with the provisions of these orders the Registrar of the Federal Magistrates Court of Australia at Darwin is hereby appointed to execute all deeds and documents in the name of the defaulting party.
IT IS NOTED that publication of this judgment under the pseudonym Liatos & Liatos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 271 of 2008
| MS LIATOS |
Applicant
And
| MR LIATOS |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Liatos filed an application for a property settlement on 27 February 2009.
The information sheet, application, affidavit and financial statement which she filed were served personally on the husband on [K], Greece on 2 June 2009 by the Judicial Steward of the Magistrates Court in Cos. The Judicial Steward said that the husband refused to take the documents and that he “pasted the legal documents on the fishing boat which [the husband] stated to me he is using as his residence”.[1]
[1] See Annexure A to the affidavit of Tracey Marris filed on 28 July 2009
The husband has never attended any court events or been represented in the proceedings nor has he filed any documents in response.
By an order made on 28 July 2009 the wife’s application was listed for final hearing on 28 October 2009. The wife was required to arrange for a copy of the order to be served personally on the husband. It was ordered that if the husband failed to file a response, financial statement and affidavit and failed to appear on 28 October 2009 the wife’s application would be heard on an undefended basis.
The 28 July 2009 order was served personally on the husband on
28 September 2009 on his fishing boat on [K], Greece.[2]
[2] See Annexure A wife’s affidavit filed on 28 October 2009.
The husband was called outside the court on 28 October 2009. He did not appear. I was satisfied that it was appropriate to hear and determine the wife’s application in the husband’s absence.
The evidence
I read the wife’s application and financial statement filed on
27 February 2009 and the information sheet filed on 19 March 2008.
I also read the wife’s affidavits filed on 27 February 2009 and
28 October 2009 and the affidavit of Mr G filed on 27 October 2009.
Neither the affidavit of Mr G nor the second affidavit of the wife were served on the husband.
Mr G is a licensed valuer who gave evidence about the value of the former matrimonial home. The home is a normal residential property. Mr G valued it at $430,000.00, which was more than the wife’s estimate of its value. I am not troubled by the fact that this affidavit was not served on the husband.
The wife’s second affidavit largely replicated her affidavit of
27 February 2009, which was served on the husband. The second affidavit did contain one new piece of information however, namely an allegation that the husband had purchased a property in Thailand.
I can place no weight on this allegation because the husband was given no notice of it and the wife’s evidence about the matter was vague.
The wife did not disclose the source of her knowledge and there was no evidence about the value of the property or even its exact location.
Background
The husband and wife were married on [K], Greece in 1978.[3] It was an arranged marriage.
[3] See marriage certificate filed on 27 June 2008 in the divorce proceedings cf wife’s affidavits filed on 27 February 2009 and 28 October 2009 in which she claimed that the parties were married on 10 May 1974.
Between the date of the marriage and 1993 the wife lived on [K], Greece and the husband commuted between [K], Greece and Darwin.
The parties’ four children were born on [K], Greece.
In 1993 the wife and children came to live in Darwin. The family (including the husband) initially lived in rented accommodation.
In 1998 the husband and wife purchased Property W in joint names. They borrowed money from Westpac Bank to assist them to purchase the home.
The parties thereafter lived at Property W until their final separation in 2002. From 1998 the wife conducted a child care business from the property and she continued to live there after the separation. The husband lived elsewhere.
The husband and wife were divorced on 28 November 2008. It was the wife’s evidence that the husband was last in Australia in December 2008.
The applicable law
Pursuant to s.79 of the Family Law Act 1975 (Cth), a court can make such orders as it considers appropriate altering the parties’ interests in property. s.79 (2) provides that the court shall not make an order under this section unless the court considers that it is just and equitable to do so.
The procedure usually adopted in resolving applications for property settlement is:
a)to identify and value the assets and liabilities of the parties;
b)to assess the contributions of the parties under s.79(4)(a), (b) and (c) and to express those contributions as a percentage;
c)to consider the matters set out in s.79(4)(d),(e),(f) and (g), which include the matters in s.75(2), so far as they are relevant, and to determine whether any adjustment should be made as a result to the contribution based entitlements;
d)to consider whether it is just and equitable to make the relevant orders.
To the extent to which it is possible to do so I intend to follow this procedure in this case.
The Assets and Liabilities
The known property pool consists of the following:
Description Ownership Value Property W Joint 430,000.00 Household contents Wife/Joint 5,000.00
I accept the evidence of Mr G, a licensed valuer, about the value of the former matrimonial home.
There was no admissible evidence of the value of the household contents. However the wife’s estimate of $5,000.00 is not inherently improbable and can be taken as an admission against interest. I intend to include the household contents in the pool at $5,000.00
The wife does not own a motor vehicle, nor does she have any superannuation.
The amount owing on the mortgage secured over the home is now $106,000.00. The net value of these assets is thus $329,000.00.
The wife said that the husband owned the following additional assets:
Description Ownership Value Fishing boat [omitted] and fishing licences Husband Not known Savings – as at October 2009 Husband 7,748.96 Colonial Superannuation Retirement Fund value as at 30 June 2006 Husband 17,410.83 [M] Employees Superannuation Fund as at 12 November 2008 Husband 22,243.00
The wife’s evidence in respect of the boat was that her father gave the husband a fishing boat with licences attached to it many years ago.
She said that this boat disintegrated and the husband built a new boat, but to the best of her knowledge he retained the fishing licences.
The husband was served with the wife’s documents on the fishing boat in June 2009 and again in September 2009.
There was no evidence of the value of the boat. The wife said that it was not practicable for her to attempt to have it valued and I accept that evidence.
The wife said that the husband had rejected an offer of $72,000.00 for the boat and was currently asking 100,000 euros for it. She did not give the source of her knowledge. The husband was on notice of these assertions by the wife. He has never filed any evidence in the proceedings seeking to refute them.
I cannot fix the value of the boat but it is reasonable on this evidence to suppose that it has a value of at least $72,000.00.
The wife provided documentary evidence about the current value of the husband’s interest in the [M] Employees Superannuation Fund and provided a member statement for the Colonial fund for the financial year ended 30 June 2006.
The wife’s evidence was that the husband had $80,000.00 in savings when the parties separated in 2002. There was no corroboration of this evidence but again the husband did not seek to refute it.
The wife obtained the husband’s Westpac bank statements for the last three years by issuing a subpoena. These statements showed that the husband had $20,230.35 in one Westpac account in 2006 but that this account was closed in January 2008. The husband has $7,748.96 in a second Westpac account.
It is impossible for me to ascertain the extent of the husband’s property, save to say that it consists at the very least of the fishing boat, the money in his Westpac account, and superannuation with Colonial and the [M] Employee Superannuation Fund.
Contributions
At the commencement of cohabitation neither party had any significant assets.
Between the date of the marriage and 1993 the wife lived on [K], Greece with the children. She was engaged in home duties and worked as a [omitted]. After moving to Australia in 1993 the wife was engaged in home duties until 1998 when she commenced working from home as a [omitted].
The husband is a [tradesman]. As far as I can tell he worked steadily at least until separation. The wife said that the husband provided little support for her financially while she lived in Greece.
The wife did not work in Australia between 1993 and 1998 and it is reasonable to assume that the husband financially supported the family during this period. The wife said that once they purchased the W property and she started doing [occupation omitted] she used all her income to pay the mortgage payments and meet other household expenses including the expenses associated with the children, while the husband paid the utility bills and bought the food. The wife said that the husband kept the balance of his income for his own purposes but without detailed evidence about the husband’s income it is difficult to assess this claim.
The wife said that she had always been the primary homemaker and parent and I accept that evidence.
The wife’s contributions as a parent were made more onerous by the fact that the parties’ youngest son [X] suffers from a disability and requires considerable assistance with his daily care including his bathing and dressing.
After separation in 2002 the wife remained in the former matrimonial home with [X] and she has paid the mortgage and outgoings and paid for the upkeep on the home ever since.
The wife has had sole occupancy of the jointly owned home however and payment by her of the mortgage and outgoings on the home in those circumstances would not normally result in an adjustment in her favour. In any event the documents subpoenaed from Westpac rather suggest that the mortgage has either not been substantially reduced since separation or has in fact increased since separation.
The wife has been solely responsible for [X]’s day to day care in the seven years since separation. [X] is in receipt of a disability pension, but I accept the wife’s evidence that [X]’s pension does not fully cover his expenses and that the wife is obliged to meet the shortfall.
The parties were married for twenty four years and have been separated for seven years. During the marriage the husband almost certainly worked hard doing physical work as a [tradesman] while the wife made different but equal contributions either as a result of being solely engaged in home duties and parenting or as a result of doing these things and also engaging in some paid employment.
The fact that the wife has been the sole carer for the parties disabled son [X] for the last seven years might well result in a finding that the wife’s contributions overall somewhat exceeded those of the husband. However it is impossible to make a proper assessment of contributions in the absence of evidence from the husband.
Section 75(2) Factors
I take into account pursuant to s.79(2)(d) that an order allowing the wife to retain the former matrimonial home will ensure that she is able to continue earning an income from conducting her [omitted] business.
Section 74(4) (f) and (g) have no relevance to these proceedings and as required by s.74(4) (e) of the Family Law Act 1975 (Cth), I now turn to consider the matters in s.75(2).
The wife is 50. She did not claim to have any health problems.
The wife works from the home as a [omitted] and earns $52,000.00 per annum. She does not speak English well and has no formal qualifications. Doing [occupation omitted] may be the only realistic means the wife has of earning a reasonable income, unless of course she returns to working as a [omitted].
The wife owes about $29,900.00 on four different credit cards.[4]
There was nothing in her affidavits to explain how she had incurred credit card of this magnitude.
[4] Unless the “!” in the wife’s financial statement is a “1” in which case the credit card debt is $39,900.00
[X], now 25, lives with the wife. [X] needs help daily with such things as dressing and bathing. [X] attends [omitted] Disability Services five days a week.
[X] is in receipt of a disability pension of $240.00 per week but it was the wife’s evidence which I accept that this does not meet his expenses and that the wife makes up the shortfall. The wife receives a carer’s pension of $95.00 per fortnight. She will be required to care for [X] for the rest of his life.
The wife has not re-partnered.
The husband is 58. He has a long history of employment as a [tradesman] but as he filed no documents I have no information about his current circumstances. The husband makes no contribution to the care of [X].
It is impossible to make a proper assessment of the competing s.75(2) factors because of the husband’s failure to take part in the proceedings. However it might well be that the wife’s responsibility to care for [X] in the future if nothing else would ultimately result in an adjustment being made in her favour for s.75(2) factors.
Whether it is just and equitable to make the orders sought by the wife
The wife proposed that by way of property settlement she receive Property W subject to the existing mortgage, together with the home contents. This would give the wife assets to the value of $329,000.00.
The wife said that she could refinance the mortgage.
In this scenario the husband would retain the fishing boat, the money in his Westpac account, the two superannuation funds and all other assets in his possession or under his control.
Because of the husband’s failure to take part in the proceedings and to make full and frank disclosure about financial matters, it is impossible for me to assess what this outcome means in percentage terms.
It is open to me to find however that it is highly likely that the husband has assets of considerable value in his possession that he does not wish the court to know about. It is open to me to find that even if the wife receives the home and contents, it is possible that she will be receiving less than her just entitlement.
The wife is however content to receive the home and contents.
If I make the orders sought by the wife, the wife will be assured of retaining a home for herself and [X] and will be able to continue earning a living doing [occupation omitted]. The husband will retain the assets in his possession and will be relieved of liability for the Westpac mortgage. On the evidence available to me I am satisfied that this is a just and equitable outcome.
For all of the above reasons the orders of the court shall be as set out at the beginning of this judgment.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Barbara Cameron
Date: 30 October 2009
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