Maginn & Takara
[2024] FedCFamC2F 679
•20 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maginn & Takara [2024] FedCFamC2F 679
File number(s): MLC 13765 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 May 2024 Catchwords: FAMILY LAW – Property – Whether to proceed ex parte – Where de facto Wife ordered to appear and did not appear – Wife found to have been properly served with previous orders and filed documents – Where parties had agreed to sell their respective houses to purchase a house jointly – Husband sold his house to purchase new house – Wife did not sell her house or contribute to the new house – Where parties were not in a relationship for 2 years to satisfy s90SB – Jurisdiction satisfied by substantial contribution of Husband within section 90SB(c)(i) and (ii) Legislation: Family Law Act 1975 (Cth) ss 90SB, 90SM(4)(a)(b) Division: Division 2 Family Law Number of paragraphs: 14 Date of hearing: 20 May 2024 Place: Melbourne Counsel for the Applicant: Ms Renou Solicitor for the Applicant: DCM Lawyers Counsel for the Respondent: The Respondent did not appear ORDERS
MLC 13765 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MAGINN
Applicant
AND: MS TAKARA
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 MAY 2024
THE COURT DECLARES THAT:
1.The parties were in a de facto relationship from the time of late 2021 to June 2023.
THE COURT ORDERS THAT:
2.That within 30 days of the date of these orders, the Respondent do all acts and things and sign all such documents as may be required to transfer all of her interest in B Street, Suburb D to the Applicant and simultaneously with the transfer (the transfer):
(a)The Applicant discharge the mortgage encumbering the property to remove the Respondent from all liability;
(b)The Applicant indemnify the Respondent in respect of all liabilities relating to the property.
3.That if the Respondent refuses or neglects to sign any document necessary to implement these orders within 14 days of a request to do so, then a Registrar of the Federal Circuit and Family Court of Australia be and is hereby appointed to sign any such documents on behalf of the Respondent pursuant to section 106A of the Family Law Act 1975 (Cth) including but not limited to:
(a)PEXA client authorisation form;
(b)Hard copy State Revenue Office and/or Australian Taxation Office forms;
(c)Mortgage discharge authority forms.
4.For the purpose of implementing Order 3, an affidavit sworn by the solicitors acting for the Applicant shall be sufficient evidence of attempts made by the Applicant to have the Respondent execute the said documents.
5.Upon the Registrar signing the PEXA client authorisation form, the Applicant's solicitors are authorised to complete the transfer using PEXA on behalf of the parties, including but not limited to the execution of any necessary electronic declarations (including to the Australian.
6.That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders;
(b)monies standing to the credit of either party in any bank account are to become the property of that party;
(c)each party shall retain their respective superannuation funds;
(d)insurance policies remain the sole property for the owner named therein;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
Background
In the matter of Maginn and Takara, the Applicant, Mr Maginn, is 60 and his former de facto partner, the Respondent, Ms Takara, is 40. The parties commenced cohabitation in about late 2021, but they separated in June 2023.
No appearance by or for Ms Takara
The first issue in this case is whether I should proceed today in the absence of Ms Takara, and if I should, whether I should proceed on the basis of only having regard to Mr Maginn's evidence. In regard to the first question, I am satisfied that Mr Maginn's lawyer has gone to a lot of trouble to email, text, and arrange for special delivery by Australia Post of documents to Ms Takara, as well as attempting to personally serve her with trial documents. I refer to the affidavit of service filed 28 February as well as the affidavit of service filed on 3 April. I also refer to the affidavit of attempted service, tendered and exhibited as ‘H1’, where Mr Maginn sought to serve an Amended Initiating Application on Ms Takara.
On 7 February 2024, a Judicial Registrar had ordered that Ms Takara attend the adjourned hearing date, being 20 March 2024. Ms Takara did not appear. On 20 March 2024, Ms Takara was ordered to attend today. Both of those Orders were brought to the attention, or attempted to be brought to the attention, of Ms Takara by special delivery post. In regard to the sealed Orders of 20 March, they were sent by text message as well as express post prepaid, and the affidavit of service filed 3 April 2024 at page 7 demonstrates the Australia Post record, showing the course of that document as it reasonably quickly wandered, from 12.22 pm on 27 March to 1.57 pm on 28 March to the Suburb C facility, and from there it was delivered to Ms Takara’s home.
At my request, Mr Maginn's solicitor attempted to telephone Ms Takara this morning on the number known to Mr Maginn as her mobile phone number (being the number ending in …), and that there was no answer. There was no attendance at Court, nor was any expected.
In all those circumstances, I am satisfied that Ms Takara has had an opportunity to participate in the proceedings, and I am satisfied it is appropriate to proceed in her absence. Having been ordered to attend before the Court, not only given an opportunity to do so, it is quite clear Ms Takara has had an opportunity to participate in the proceedings and has chosen not to.
Whether to make orders sought
At the time their romantic relationship commenced in 2018, the parties lived opposite each other in E Street, Suburb D. Ms Takara owned her home and lived across the road from Mr Maginn. Before the parties had commenced to live in the same property, Mr Maginn says they agreed to each sell their E Street properties, and contribute the proceeds of sale to a bigger property known as the B Street property, also at Suburb D.
Mr Maginn says pursuant to that agreement, and whether or not such agreement existed, he sold his property, and he received approximately $730,000 net of selling expenses. He then borrowed further moneys to complete the purchase of the B Street property, which was in the names of himself and Ms Takara. The B Street property was purchased for $1.135 million, and he ultimately borrowed about $812,000 for that purchase.
Mr Maginn alleges that Ms Takara changed her mind about selling E Street, kept it, and rented out the property during their short relationship. Mr Maginn then made all of the mortgage payments in regard to the B Street property, as well as expenses relating to the family of Ms Takara and her three children from a previous relationship.
In his amended application for final orders filed on 8 April 2024, Mr Maginn sought the following:
2. That within 30 days of the date of these orders, the Respondent do all acts and things and sign all such documents as may be required to transfer all of her interest in the [B Street] property to the Applicant and simultaneously with the transfer (the transfer):
a. The Applicant discharge the mortgage encumbering the property to remove the Respondent from all liability;
b. The Applicant indemnify the Respondent in respect of all liabilities relating to the property.
3. That if the Respondent refuses or neglects to sign any document necessary to implement these orders within 14 days of a request to do so, then a Registrar of the Federal Circuit and Family Court of Australia be and is hereby appointed to sign any such documents on behalf of the Respondent pursuant to section 106A of the Family Law Act 1975 (Cth) including but not limited to:
a. PEXA client authorisation form;
b. Hard copy State Revenue Office and/or Australian Taxation Office forms;
c. Mortgage discharge authority forms.
4. For the purpose of implementing Order 3, an affidavit sworn by the solicitors acting for the Applicant shall be sufficient evidence of attempts made by the Applicant to have the Respondent execute the said documents.
5. Upon the Registrar signing the PEXA client authorisation form, the Applicant’s solicitors are authorised to complete the transfer using PEXA on behalf of the parties, including but not limited to the execution of any necessary electronic declarations (including to the Australian Taxation Office and/or State Revenue Office).
…
7. That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
a. each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders;
b. monies standing to the credit of either party in any bank account are to become the property of that party;
c. each party shall retain their respective superannuation funds;
d. insurance policies remain the sole property for the owner named therein;
e. each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
f.any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
The difference between the Amended Initiating Application and the original Initiating Application is that Mr Maginn no longer presses for a refund of the very substantial moneys he spent along the way and simply seeks that the property that was purchased with the proceeds of sale of his prior property is retained by him, so that Ms Takara can retain her property that she owned previously.
Apart from the mortgage payments, Mr Maginn paid all the utility expenses. Mr Maginn says that he spent a total of about $179,000 all up on mortgage payments, utilities, and family expenses of Ms Takara. The expenses go back to 2018, '19 and '20, which are before the de facto relationship, but those expenses could be regarded as a contribution prior to the start of the relationship.
The end result of all that is that the parties were not in a relationship for two years as required by section 90SB of the Family Law Act 1975 (Cth) (‘the Act’). This section provides:
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b)that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
However, it is uncontested that Mr Maginn put in the $480,000-odd of equity as well as the mortgage payments in regard to the B Street property. I am satisfied that such a contribution is a substantial contribution as contemplated pursuant to section 90SM(4)(a) and (b) and that a failure to make the orders sought by Mr Maginn would result in a serious injustice to him.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 13 June 2024
0
0
1