Lone and Lone

[2007] FamCA 1725

FAMILY COURT OF AUSTRALIA

LONE & LONE [2007] FamCA 1725

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Future needs – Domestic violence – Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: Ms Lone

RESPONDENT: Mr Lone

FILE NUMBER: MLF 1880 of 2004

DATE DELIVERED: 3 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 3 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stone

SOLICITOR FOR THE APPLICANT: Issac Brott & Company

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. That the husband and the wife forthwith do all things and sign all documents necessary to transfer to the wife at her expense all of their right, title and interest in the property known as and situated at …, B in the state of Victoria, being more particularly known as the whole of the land in certificate of title volume … folio … lodged in the Office of Titles.

2. That pursuant to the provisions of section 106A of the Family Law Act 1975, a registrar of the Melbourne registry of the court be and is hereby appointed to execute any deed or instrument in the name of the husband and do all acts and things necessary to give validity and operation to the provisions of this order, and particularly paragraph (1) thereof.

3. That as between the husband and wife, property and all items of personal property forthwith vests in the party presently having possession thereof. 

4. That all applications be otherwise dismissed and removed from the list of cases awaiting hearing. 

5. That the wife cause a sealed copy of these orders to be served on the husband by prepaid ordinary mail at the addresses provided in paragraph 4 of the order made on 17 January 2007.

6. General liberty be reserved to all parties to apply.

7. It is certified, pursuant to Rule 19.50 of the Family Law Rules 2004 that this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1880 of 2004

MS LONE  

Applicant

And

MR LONE  

Respondent

REASONS FOR JUDGMENT  

1. The principal proceedings seek an alteration of property interests.  The parties were previously married and separated in circumstances which I will shortly relate.  Proceedings commenced in June 2004 with an application for final orders by the wife to which the husband responded in September of that year.  The husband has sworn affidavit material, some of which I will refer to during these reasons for judgment, however in recent times he has not participated in the proceedings and it is clear that he has no intention of cooperating in the conduct of the proceedings.  He lives in Ireland and has done so for some time.

2. On 17 January 2007, Guest J adjourned the final applications to this list today “for a possible undefended hearing”.  His Honour ordered that the wife serve the husband by mail with specified documents pursuant to his Honour’s order.  Documents were served on the husband, in accordance with his Honour’s order, in Ireland.  I am satisfied by an affidavit of Mr S sworn on 2 April 2007 and filed today by my leave that his Honour’s order has been complied with.  I have read that affidavit together with the wife’s affidavit and financial statement, both annexed thereto. 

3. In my view the conduct of the husband, as deposed to by Mr S, resulted in the envelope in which the documents were forwarded to the husband pursuant to Guest J’s order, being returned endorsed “refused” with the date.  The husband will not cooperate and the Court will not be able to achieve anything further by adjourning these proceedings to obtain his cooperation.  Accordingly, I form the view that it is appropriate for the wife to be given leave to proceed on an undefended basis on the condition that the sealed copy order which I will make as a result of these proceedings be served on the husband in a like manner to that required by Guest J.  I proceed accordingly.

4. The affidavits to which I have referred persuade me of the following facts.  The wife was born in December 1960 and is 46 years of age.  The husband was born in February 1948 and is 59 years of age.  The parties did not cohabit prior to their marriage.  They married in Ireland in June 1980.  At the time of the marriage the wife had secretarial and administrative skills and the husband worked in the hospitality industry.  The parties have four children by their marriage: D, born in October 1981, L, born in September 1985, N, born in April 1987, and F, born in August 1991. 

5. Three of the four children live in Australia and one child, L, lives overseas.  F, who is the only child under 18 years, lives with the wife on a full‑time basis and is in year 10 at S Secondary College.  N also lives with the wife and is studying.  She earns minimal income on a part-time basis and is reliant on the wife for accommodation and food.  L is living in Ireland but is not reliant on either party.  D, the eldest child, works interstate and overseas but comes to visit and stays with the wife whenever he is able to.  He is also financially self-sufficient.

6. The parties first separated in September 2001 but recommenced cohabitation several months later.  They separated permanently in October 2003 and the marriage has undoubtedly broken down irretrievably.  At the time of that last separation, the husband travelled back to Ireland where their marriage commenced, to take care of various business interests which the parties have there.  At the time of his departure, the wife communicated with the husband, informing him that she viewed the marriage as being over.  She last saw him in February 2004 when she travelled to Europe, seeing him in both Ireland and Italy.

7. At the time of the marriage the wife had minimal assets.  The husband, who was 32 years old at that time, had an interest in a restaurant in Ireland together with an interest in a run-down property.  During the course of the marriage the parties built up significant assets and at the time of separation they owned a portfolio of assets situated in Ireland and Italy as well as the former matrimonial home at B and some savings of approximately $35,000. 

8. There does not appear to be anything unusual about the contributions made by the parties with one exception.  They appear to have worked hard.  There is a question mark about the husband’s attitude towards contributions but in the circumstances of the way in which I propose deciding this matter, the question is a moot point.  The one exception to which I have referred was the undisputed evidence of the wife that the husband physically and emotionally abused her on a frequent basis during the marriage.  The physical abuse commenced within a few days of their marriage and included hitting, punching and holding a shotgun to the wife’s head.  He made threats to her.  The treatment of the wife by the husband was certainly completely antisocial and unacceptable and also quite clearly very serious offences against the criminal law.

9. On the basis of the material, I infer that throughout the marriage the wife was at least the primary homemaker and parent and has certainly been the exclusive occupant of that role since the parties’ separation.  The attitude of the husband to the whole family is quite unacceptable.  The wife has sworn to the present assets of the parties in an unusual way.  She has taken the description and estimated valuations of various overseas assets contained in two affidavits of the husband filed in these proceedings, being on 27 August 2004 and 22 September 2005. 

10. The values of those assets as estimated by the husband in those affidavits was in Pounds Sterling and Euros.  The process which has been undertaken is to convert those figures to Australian dollars at present values and that would be at the time of the swearing of the affidavit which was 5 March 2007.  The only asset contained in that list which is in Australia is the former matrimonial home at B which is valued at an estimate of $680,000.  The total of the assets which are contained in paragraph 6 of the wife’s affidavit is $1,738,948.  I note that the savings referred to earlier by the wife in Australia of $35,000 are not in that list and I assume that the wife has retained that amount.  It matters not in the context of this matter.

11. In her final application and before me today, the wife simply seeks the transfer of the husband's interest in the B property.  It is unencumbered but on a mathematical calculation the value of that property of $680,000 represents 39.1 per cent of the total value of the assets listed in paragraph 26 of the wife’s affidavit.  Looking at matters of contribution, on any view, as a minimum finding, 50 per cent in respect of each party is appropriate. Given the husband’s conduct towards the wife, it seems to me that there is an argument for an increase in favour of the wife because of that violence but in the circumstances it is unnecessary to decide that.

12. On top of that, it would appear that the parties have a significant disparity in income.  The wife is earning $40,000 per annum and it is open to be inferred on the basis of the husband’s assets that he is earning substantially more than that.  In addition, the wife has had financial responsibilities towards the children which she has met exclusively, particularly to the exclusion of the husband, and accordingly there is another significant disparity there.  Therefore, in my view it would be appropriate for a further alteration of property interests in favour of the wife of between 5 and 10 per cent over and above that which is found for contribution.

13. Accordingly, as a minimum finding, an apportionment as between the wife and the husband would start at 55 per cent to the wife and may well be as high as 60 per cent but in the circumstances of the wife's claim it is unnecessary to make a decision on that.  In my view, in considering the question of justice and equity, there is a question mark as to whether an alteration of property interest in favour of the wife of only 39.1 per cent is appropriate but on the basis of all the facts I understand well why the wife has decided to take that course. 

14. In the circumstances it seems to me that justice and equity should not just be applied in a percentage and dollar term.  The wife is entitled to have finality and her emotional reaction this morning just underlines for me how important that is for her and I totally support that proposition.  Accordingly, there will be orders in accordance with the wife’s application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  18 December 2008