Milad and Ghabara

[2012] FamCA 496

FAMILY COURT OF AUSTRALIA

MILAD & GHABARA [2012 ] FamCA 496

FAMILY LAW – PROPERTY – ex parte property orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Milad

RESPONDENT: Ms Ghabara

FILE NUMBER: SYC 4522 of 2011

DATE DELIVERED: 26 June 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 June 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: no appearance

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

Orders

1. Pursuant to s 79 Family Law Act, within 7 days the parties do all acts and things necessary to instruct and authorise Etheringtons Solicitors to pay all monies held by that firm as a consequence of the sale of the property known as … E Street, Suburb M to the wife or her solicitor and upon the wife receiving such funds, she shall forthwith pay:

   1.1.To Mr G Ghabara the sum of $53,259;

   1.2.To the husband, an amount equivalent of 20% of the balance then remaining less the sum of $35,000;

   1.3.The balance to the wife.

2. If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

3. These orders be stayed for a period of 21 days after a copy of these orders are sent to the husband by certified mail by the solicitor for the wife at … E Street, Suburb M, 2… .

4. The husband in the period of 21 days from the date a letter is sent, has leave to seek a relisting of this matter and in those circumstances the stay referred to in order 3 will be extended until the date of that relisting.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Milad & Ghabara has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4522 of 2011

Mr Milad

Applicant

And

Ms Ghabara

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The wife by way of a Response filed 15 September 2011 sought final orders by way of alteration of property. She presses today for orders to be made in terms of paragraphs 3 and 4 of the Response.

2. The matter has proceeded before me today on an undefended basis. I am satisfied that there is evidence that every effort has been made to alert the husband to the fact that these proceedings are on today and that having been listed for an undefended hearing, would proceed in his absence. I note that the husband was represented by a very experienced family lawyer up until 30 March 2012.

3. The wife’s financial statement discloses that on an overall basis, she has negative equity in the assets that she has. Her primary interest in property is a 33.84 percent interest in a property at S Street, Suburb D, which she estimates has a value of $1.6 million. She has a minor amount in a bank account, some household contents and jewellery, all of negligible value. There is also a 50 percent interest in a fund held by Etherington Solicitors.  Exhibit 1 indicates that the current balance held by Etherington Solicitors is $341,484.21.

4. The wife has indicated in her financial statement that she has a liability to A Pty Limited in relation to development costs which was formerly a liability that she has with the husband. The amount of that liability is $2,341,163. On its face that is a joint and severable liability.

5. I am informed by the solicitor for the wife that so far as he knows, the husband does not have any net assets.

6. The overall pool of property held by the parties therefore is one that shows no net assets.

7. The wife relies upon an affidavit that she filed on 11 May 2012 together with affidavits from her father filed 10 May 2012 and 22 May 2012. I am satisfied, having read that evidence, that during the 18 years of the marriage, the wife received a number of extraordinary contributions from her family which she used for the benefit of her family. The wife’s family was a significant source of support for the parties during the marriage.

8. The wife also in her affidavit sets out some irregular patterns in relation to the husband’s work history and some liabilities that the husband incurred. The husband was in fact bankrupted during the period of time the parties were together.

9. The wife intends to re-engage in the workforce, although she is not currently working. She is being supported still by the generosity of her family. She is otherwise young and healthy and intends to pursue employment. I have no information from the husband about what he says is his contributions to the development of the current financial situation the parties have. I do not know anything about the matters that I would normally need to consider on his side pursuant to s 79(4)(d) – (g) Family Law Act.

10. Overall it seems to me what the wife is asking is clearly a just and equitable outcome. The order provides for the repayment of a debt to the wife’s father which is detailed in the affidavit of the wife’s father at page 3 of the annexures. In all the circumstances I find it is just and equitable to make the orders that the wife has sought.

REMARKS ADDED TO EX TEMPORE REASONS

1. Prior to the court engrossing and sealing orders, the court became aware of the fact that at 4.40pm on Monday 25 June 2012 a document dated 25 June 2012 was received which was purportedly signed by Dr W, C Street, Suburb F, indicating that the husband was suffering from an acute viral illness and is contagious and at risk of life threatening complications and that he was unable to attend court from 25 June 2012 until at least 29 June 2012. For reasons I cannot explain, that document has imprinted upon it, “25 June 2012 5.39pm [a law firm specialising in criminal matters] [a phone number]”. In the circumstances, I intend to add to the orders I engross the following orders:

   These orders be stayed for a period of 21 days after a copy of these orders are sent to the husband by certified mail by the solicitor for the wife at … E Street, Suburb M, 2… .

2. The husband in the period of 21 days from the date a letter is sent, has leave to seek a relisting of this matter and in those circumstances the stay referred to in order 3 will be extended until the date of that relisting.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 26 June 2012. 

Associate: 

Date:  28.6.2012