Maddiford and Maddiford

[2012] FamCA 1055

FAMILY COURT OF AUSTRALIA

MADDIFORD & MADDIFORD [2012] FamCA 1055

FAMILY LAW – PRACTICE AND PROCEDURE – undefended proceedings – where the husband’s solicitors have taken appropriate steps to locate the wife – where the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.

FAMILY LAW – PROPERTY SETTLEMENT – application by the husband seeking dismissal of the property settlement proceedings – where the proposed orders would allow both parties to retain the assets currently in their power, possession and control – where the Court took into consideration sections 79 and 75(2) – orders that the property settlement proceedings be dismissed.

FAMILY LAW – COSTS – consideration of the factors set out in section 117(2A) – where the wife has been wholly unsuccessful in her proceedings – orders that the wife pay the husband’s costs of the proceedings.

Family Law Act 1975 (Cth) ss 75(2), 79 & 117(2A)

APPLICANT: Mr Maddiford

RESPONDENT: Ms Maddiford

FILE NUMBER: ADC 4055 of 2010

DATE DELIVERED: 11 December 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roberts

SOLICITOR FOR THE APPLICANT: Paul Kirk Roberts and Co

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. The property settlement proceedings filed by the wife on 18 August 2011 are dismissed.

1. The wife pay the husband’s costs of the proceedings such costs to be agreed and failing agreement to be taxed.

1. All outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

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

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FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4055 of 2010

Mr Maddiford

Applicant

And

Ms Maddiford

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the application brought by the husband in these proceedings seeking the dismissal of the property settlement proceedings.  On the 26 October 2010 the Initiating Application was filed by the wife seeking orders that the net non-superannuation assets of the marriage be divided 45 per cent to the husband and 55 per cent to the wife, and the superannuation assets of the marriage be divided fifty-fifty. 

2. The application was supported by an affidavit filed on 26 October 2010 and the Financial Statement.  Subsequently there was a Response filed by the husband in which the husband sought orders providing for each of the parties to retain their property.  The husband seeks to retain the real estate at B Street, Suburb C and all other assets in his possession.  Since then further affidavit material has been filed.

3. The Court has made various orders in relation to the matter.  In particular, it has attempted to deal with the matter since the wife’s solicitors filed a Notice of Ceasing to Act.  There have thereafter been several occasions where there has been no appearance by the wife.  The matter came on before Registrar Paxton and was adjourned for hearing on an undefended basis to 29 October 2012.

4. On that date, I directed the husband’s solicitors to make further attempts to locate the wife.  This morning I have received an affidavit of the husband’s solicitors setting out the appropriate attempts made to locate the wife and warn her that the matters will be dealt with on a final basis today if she did not attend.

5. I am satisfied that it is appropriate, therefore, to deal with the matter on an undefended basis. 

6. Taking into account the affidavit material filed by the husband, the Court notes the short period of the relationship and, in particular, in the affidavit of the husband filed on 3 May 2011. He sets out the basis upon which the real estate property was purchased and his other assets. The Court takes into account, as is required by the provisions of section 79 and section 75(2), the significant contributions made by the husband to the acquisition of the assets and their ongoing maintenance, and the limited time in which the parties resided together.

7. The Court also takes into account the ownership of the assets that each party had prior to their relationship commencing and the assets which the wife has retained since the parties separated. 

8. On an undefended basis, it is not essential to set out in arithmetical detail, the assets and liabilities of the parties.  I rely upon the affidavits of the husband which have been filed in these proceedings which are now taken to be admitted on the basis that the matter is not now defended. 

9. The orders which the husband seeks are that the proceedings brought by the wife be dismissed.  That would be an appropriate order which would allow both parties to retain the assets currently in their power, possession, and control.

10. In relation to the question of costs, the most significant feature in relation to costs referring to section 117(2A) is that the wife has been wholly unsuccessful in her proceedings.  That would, therefore, be a significant basis upon which to make the order for costs.

11. In relation to the financial circumstances of the parties, the Court has before it, the Financial Statements filed in 2010 and 2011.  In the Financial Statement filed by the wife on 26 October 2010, she referred to an income of $769 a week and significant property owned by her.  It is of note, however, that the affidavit of the husband’s solicitor says that the employer named by the wife in that 2010 statement, D Pty Ltd, did not have any information which would assist the husband’s solicitor in effecting service upon her of the notice that the matters were going to be dealt with today.  What is significant, however, is that other assets described by the wife are referred to as property owned by her.  She refers to the B Street, Suburb C property as being 50 per cent owned by the wife, which is clearly not the case. 

12. There are, therefore, issues in relation to the financial circumstances of the wife which would need to be taken into account when considering the order for costs. 

13. However, the most significant feature in this matter is that it was the wife who commenced the proceedings and thus initiated the ongoing costs of both of the parties.  The wife’s failure to respond to the notices previously given to her in relation to hearings of the matter should also be taken into account.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 11 December 2012.

Associate: 

Date: