MILLENI & MILLENI

[2019] FCCA 1556

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLENI & MILLENI [2019] FCCA 1556

Catchwords:
FAMILY LAW – Property – defended hearing – leave given to the Applicant wife to proceed undefended – where the Respondent husband failed to appear at the final hearing and on two previous Court dates – just and equitable to make property orders – larger financial contributions and contribution to the welfare of the family made by the wife during the marriage – wife has care of two children – orders made in the wife’s favour.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79, 106A

Federal Circuit Court Rules 2001, r.16.05(2)(e)

Cases cited:

Bevan v Bevan (2013) 279 FLR 1

Stanford v Stanford (2012) 247 CLR 108

Applicant: MS MILLENI

Respondent: MR MILLENI

File Number: MLC 961 of 2019

Judgment of: Judge Blake

Hearing date: 27 May 2019

Date of Last Submission: 27 May 2019

Delivered at: Melbourne

Delivered on: 7 June 2019

REPRESENTATION

Counsel for the Applicant: Mr Serra

Solicitors for the Applicant: Garden & Green

Counsel for the Respondent: None

Solicitors for the Respondent: None

ORDERS

1. Within 30 days of the date of these Orders each party do all things and execute all documents necessary to cause the properties situated at and known as Property A more particularly described in Certificates of Title Volume … Folio …, Property B, more particularly described in Certificates of Title Volume … Folio 673 and Property C, more particularly described in Certificates of Title Volume …, Folio … (‘the properties’) to be sold at the earliest possible date and that the proceeds of sale be disbursed as follows and in that priority:

   (a)In payment of agents’ commission, advertising expenses, conveyancing adjustments and legal expenses of the sale;

   (b)secondly to discharge any mortgage and any other encumbrance affecting the properties;

   (c)The net balance then to be disbursed to the wife.

2. That, for the purposes of Order 1 above, the Wife have the sole conduct of the sale of the properties.

3. In the event the Husband refuses or neglects to comply with any provision of these Orders:

   (a)The Registrar or Deputy Registrar of the Federal Circuit Court of Australia at Melbourne or the wife’s solicitor is hereby appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these Orders; and

   (b)the Husband is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this Order; and

   for the purpose of this Order, an affidavit setting out the Husband’s failure to comply with the Orders shall be sufficient evidence of neglect and default.

4. Within 7 days of the date of these Orders, the Husband return to the Wife the keys to the sheds on the properties and in the event the Husband refuses to do so, the Wife be at liberty to force entry to same.

5. The Wife retain all contents, furniture, motor vehicles, caravan, bank accounts, investments and superannuation in her possession and name.

6. The Wife retain the Time Share and any liabilities associated with it, or alternatively be at liberty to sell same and retain any sale proceeds.

7. Each party retain their respective superannuation funds exclusive to the other.

8. Unless otherwise specified in these Orders and except for the purpose of enforcing the payment of money under these or subsequent Orders:

   (a)Each party be solely entitled to the exclusion of the other party to all property, including choses in action, in the possession of each party as at the date of these Orders;

   (b)Any money standing to the credit of the parties in a bank account be retained by the party in whose name the account appears and any money standing in any joint account be divided equally between the parties;

   (c)All insurance policies are to become the sole property of the named owner; and

   (d)Each party be solely liable for and indemnify the other against any liability in their respective name/s or in relation to any property which that party is entitled pursuant to these Orders.

9. The wife’s solicitor serve a copy of these Orders on the husband by ordinary mail care of Ms D at Street E, Town F.

10. The wife’s solicitor notify the husband via text message to the husband’s mobile telephone that the above mentioned documents have been served.

11. The wife’s costs be reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 961 of 2019

MS MILLENI

Applicant

And

MR MILLENI

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for the division of property filed by the Applicant wife.  The application was filed on 30 January 2019 (‘Application’).

2. The Respondent husband has taken no part in these proceedings.

3. The procedural history leading to the hearing before me today is as follows.

4. The Application was filed on 30 January 2019.  The wife also filed an affidavit in support of the Application sworn on 30 January 2019, and a Financial Statement.

5. On 1 March 2019, a law clerk sent a copy of the Application, the wife’s affidavit, the Financial Statement, a brochure entitled “Marriage, Families and Separation” and acknowledgement of service details on the husband by posting them in a prepaid post envelope addressed to him at Street E, Town F, Victoria. The husband is believed to be residing at this address with his mother.

6. On 8 March 2019, the wife filed an Application in a Case seeking an order for substituted service.

7. In support of the application for substituted service, on 8 March 2019 an affidavit was filed with the Court by the wife’s solicitor.   In his affidavit, the solicitor deposed to the following:

   a)sending the Application, the Financial Statement, the wife’s affidavit, brochure and a cover letter by DX on 11 February 2019 to Network Process Service (‘NPS’) and requesting NPS to effect service of the Court documents on the husband;

   b)NPS informed him that multiple attempts were made to serve the documents on the husband. These attempts were either ignored when NPS knocked on the door, or the husband’s mother who lives on the property, Ms D, stated that the husband did not live there;

   c)that he was instructed that the husband lives at Street E, Town F and resides in a caravan on the rear of that property. Further, that the  youngest child of the marriage, currently aged 12, had visited the husband on 31 January 2019 and 4 February 2019;

   d)on 19 February 2019,  an employee of NPS contacted the wife’s law firm and advised that service on the husband had been unsuccessful, and that his mother had requested that the agent not return to the property at Street E, Town F;

   e)on 20 February 2019, NPS attempted service of the Court documents at Street E, Town F again without success;

   f)the agent of NPS advised him that they had also attempted service on the Husband at Street G, Town F. The wife alleged that this was an address the husband may be residing at as it was his friend’s house; and

   g)following the attempts above, the documents were sent via express post to Street E, Town F on 4 March 2019.

8. On 8 March 2019, the wife filed an affidavit in which she deposed, among other things:

   a)the husband was evading service of the proceedings;

   b)the husband had been visited regularly by the youngest child of the marriage at Street E, Town F; and

   c)the husband had told her he wants nothing to do with the matter.

9. On 12 March 2019, the Court made Orders that the proceeding may be properly served on the husband by forwarding the Application, supporting affidavit, Financial Statement and a copy of the Orders to the husband by ordinary mail care of Ms D at Street E, Town F Victoria.  The Court also made Orders that:

   a)the solicitors for the Applicant notify the Respondent by text message that the above documents had been served; 

   b)the Respondent file and serve a Response, affidavit and financial statement by no later than 4pm on 2 April 2019;

   c)the matter be adjourned to 10 May 2019 at 10am for Directions; and

   d)the Respondent be required to attend the adjourned hearing.

10. On 12 March 2019, the Court also made an Order that the wife have liberty to apply for final orders on an undefended basis should the husband fail to file responding material or failed to attend Court. The Order to proceed undefended was not noted in the Court Orders that were subsequently served on the husband.

11. On 17 April 2019, a further affidavit of service was filed by a law clerk.  In that affidavit, the law clerk deposed that the Application filed on 30 January 2019, the wife’s affidavit sworn on 30 January 2019, the wife’s financial statement, the “Marriage, Families and Separation” brochure, the Application in a Case dated 8 March 2019, the affidavit of the wife sworn on 8 March 2019,  the affidavit of the solicitor sworn on 8 March 2019, and the Orders of the Court made on 12 March 2019, were served on the husband by posting them in a prepaid envelope addressed to him care of Ms D at Street E, Town F Victoria.

12. An affidavit was filed by the wife’s solicitor on 17 April 2019. In that affidavit, the solicitor deposed to a further attempt to serve the husband directly at Street E, Town F on Wednesday 17 April 2019.  In that affidavit, the solicitor deposes that the front gate to the street was chained and padlocked and it was not possible to access the property. A photo of the locked gate at the property was annexed as KMB2 to the solicitor’s affidavit.

13. On 10 May 2019, the Court made Orders for the matter to be adjourned to 27 May 2019 at 9.30am for final hearing on an undefended basis. The Court also amended, pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (‘the slip rule’), its Order of 12 March 2019 to include the order that, if the Respondent failed to file responding  material or did not attend on the adjourned date, the Applicant have liberty to apply for the hearing to proceed on an undefended basis.  The Court ordered that a copy of the Orders be served on the Respondent.

14. On 21 May 2019, a law clerk of the wife’s solicitor affirmed and filed a further affidavit of service in which it was deposed that a copy of the Court’s Orders dated 12 March 2019, amended pursuant to the slip rule, and 10 May 2019 were served on the husband by prepaid post.

15. The matter came on for final hearing on 27 May 2019. The husband was not in attendance.  He was formally called outside Court shortly after the matter commenced.  There was no response to the call.

16. When the matter commenced, Mr Serra, counsel for the wife, informed the Court that he had received a phone call from the husband on the preceding Friday asking what was going on. Mr Serra indicated to the husband that the matter was on in Court today at 9.30am. The husband apparently told Mr Serra he knew about that and had been to see a lawyer. Mr Serra said his instructor had then received a phone call from that solicitor in Town F, and ‘obviously they are not acting, but another Town F solicitor did see him at 4.30pm on Friday’.

17. It is clear from the above that the husband has had ample opportunity to participate in these proceedings. There have been many attempts at service.  There have been 2 preceding occasions in this Court, not including today, where the husband has failed to attend.  Despite this, some 4 months after filing, the husband has not taken a single step in the proceeding.  It is noted that the husband has failed to take this step despite the Hearing being listed to proceed on an undefended basis.

18. This Court is a busy court and its lists are full.  I have had regard to that and also to the concerted attempts by the wife to engage the husband, not just in respect of this proceeding, but in relation to other matters involving the properties to which I refer below. I draw the inference, notwithstanding the apparently contradictory indication received from the husband on Friday, that he has no intention of meaningfully participating in the proceedings.

19. In light of the above, I gave leave to Mr Serra to proceed with the Application on an undefended basis.

Background Facts

1. The background facts in this matter are set out in the affidavit of the wife filed on 30 January 2019.  There is no contest in relation to these facts and I adopt them as my findings of fact as set out below.

2. The parties were married on … 1999.  The parties separated on 1 November 2006.  There were periods of reconciliation and separation.  The parties have, however, lived separately since 2015. 

3. There are four children of the marriage, two of whom remain under 18 years of age. Both of the younger children reside with the wife.

4. The wife has maintained employment as a customer service officer with the Employer for 24 years. The husband is unemployed.  He lives with his mother in Town F in a caravan located at the rear of the Street E, Town F property where she resides.  He has an alcohol problem.

5. The first child of the parties was born in 1996.  The second was born in 1998.

6. In 1997, the parties purchased a home in Property A, located approximately 15km south of Town F, for $35,000.  There are three properties being Property A and Property B & Property C.  The deposit was paid for by the wife’s aunt which the wife subsequently reimbursed to her.  The balance was by way of bank loan which the wife has been repaying ever since.

7. At the commencement of the marriage, the wife, as stated above, was working at the Employer.  The husband worked at the local Employer.

8. In 1998, the husband lost his driver’s license. He resigned from his work at the Employer and has only worked occasionally since. To the best of the wife’s knowledge, he is presently unemployed.

9. The wife went back to work after the birth of the second child when the husband lost his driver’s license in 1998.

10. The wife was responsible for the raising their four children. She says, and I accept, that she was the sole breadwinner to the family and the sole financial support of the family for 24 years.  The husband contributed almost nothing in these years. The wife will be left to clean up and ready the properties for sale.

11. There was a period when the wife had to work two jobs to support the family.  Her second job involved working for the Employer in the evenings.

12. The husband has been living with his mother in Town F since 2015.

13. The properties at Town F are in a mess.  There are bottles, cans, car wrecks and rubbish that will need to be removed from the properties before they can be put up for sale.  The wife has asked the husband to open the sheds on the property and get his belongings out, but he refuses.  He also refuses to give her the keys.

14. The house on the Property A property is dilapidated.  The wife says, and I accept that she cannot afford to repair it and that the house and the 2 adjoining blocks will need to be sold so she can pay out the mortgage.

15. The wife has recently moved out of the house at Property A and she is living with the two younger children in Town F where they are renting. 

16. The wife tendered a market appraisal for the value of the three properties at Town F.  This appraisal is from Valuer Pty Ltd and is dated 16 January 2019.  The market appraisal indicates that if the properties are made available for sale, a sale price in the vicinity of $65,000 for all three properties may be attainable.

The Law

1. Section 79(1) of the Family Law Act 1975 (‘Act’) empowers the Court to make such orders as it considers appropriate in altering the interests of the parties to a marriage. The power under section 79(1) of the Act is a power to be exercised having regard to the subsections referred to therein. Of primary importance is subsection 79(2) of the Act which provides that ‘the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order’.

2. Section 79 of the Act, and the matters to which it refers, have been the subject of extensive judicial consideration by the High Court of Australia and also by the Family Court of Australia. I have had regard in particular to the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108 and the decision of the Full Court of the Family Court in Bevan v Bevan (2013) 279 FLR 1 in relation to the approach I should take in this matter.

3. I am satisfied that in this matter, it is just and equitable to embark upon an exercise determining how the assets between the parties are to be split.  The parties have been separated since 2015.  The wife has applied for a divorce.  The husband has disengaged completely from the wife to the extent that he has not even sought to participate in these proceedings.  It is self-evident that the parties are not in any relationship and that there will not be any common property available for their shared use.

The Property Pool

1. The principal assets of the parties, based on the material before me, and their liabilities, are as follows:

Assets	Owned by	Value
Properties at Property A and Property B and Property C	Joint	$65,000
Shares	Wife	$2,350
Bank account ending in …	Wife	$605
Motor Vehicle	Wife	$4,000
Time Share	Joint	$10,000
Household contents	Joint	$20,000
Superannuation: ·        Super Fund H ·        Super Fund J	·       Wife ·       Wife	·    $100,000 ·    $200
Total assets	$202,155
Liabilities	Owed by	Value
Mortgage on the properties	Joint	$18,070
Timeshare Licence/Personal loan	Joint	$5,070
Credit Card	Wife	$500
Total liabilities	$23,640
Total net assets	$178,515

1. The above represents, on the material before me, the net assets of the parties that are available for distribution.

Contributions by the Parties

1. As I have found above, the evidence is that the wife has made long-standing and sustained financial contributions to the property of the parties.  The evidence is that the husband, apart from a short initial period of employment that ended before the marriage, has not made any contribution to the property of the parties. I am satisfied the wife has made the majority, if not all, of the financial contributions to property.

2. I have no evidence before me in relation to non-financial contributions made directly or indirectly by on behalf of a party to the acquisition, conservation or improvement of any of the property of the parties.  I do have evidence, as noted above, that the husband has left the properties in a mess and has not, despite requests from the wife, made any attempts at clean up the site or remove his belongings.  It would appear that this is a matter that will fall to the wife. I am prepared to draw an inference from the evidence that the husband has not played any part in looking after the properties since 2015 when he left to live with his mother. I am prepared to draw an inference that whatever has been done since that time has been completed exclusively by the wife.

3. I am satisfied that the wife has made all, or almost all, of the contributions to the welfare of the family and to the welfare of the children.  She was, on the material before me, the home maker and parent with responsibility for the children.  She has raised them herself.  She has also financially supported them, without any contribution from the husband. These contribution factors favour her exclusively.

4. I am satisfied on the basis of the wife’s Financial Statement that the husband is paying child support of $25 per week for the benefit of the two younger children.

The section 75(2) factors

1. I have had regard to the factors as set out in section 75(2) of the Act.

2. I have no evidence before me in relation to the husband’s age or state of health, other than the wife’s belief that the husband remains a person with a serious drinking problem.

1. The wife has had care of the children of the marriage.  She continues to have care of two children under the age of 18 years.  The husband does not contribute to any of that. This factor favours the wife.

2. It is apparent that the wife is having some difficulty. In her affidavit, she refers to the state of the house on the properties and the need to pay out the mortgage.  She has had to leave the family home and take up rental lodgings in Town F, while also paying the mortgage. These are burdens she is carrying without the assistance of the husband, other than the nominal amount of child support as noted above.

3. The husband currently lives on a property with his mother. The circumstances of this arrangement are unknown.

4. The section 75(2) factors in this case weigh exclusively in favour of the wife.

Decision and Final Orders

1. In view of the findings above, I will make orders in the following terms:

   a)the properties be sold and the net proceeds after sale costs and the discharge of the mortgage be retained by the wife;

   b)the wife retain the Time Share and all liabilities associated with it, and be at liberty to sell it if she wishes;

   c)the wife retain all contents, furniture, motor vehicles, caravans, bank accounts and superannuation in her name;

   d)in light of the husband’s non engagement in the proceedings, I will make orders under section 106A of the Act that in the event the husband refuses or fails to sign any document, a Registrar of the Court, or alternatively the wife’s solicitor, be appointed to execute documents to give effect to these orders;

   e)the husband return to the wife in 7 days the keys to the sheds on the property and in the event that he does not do so the wife be at liberty to force entry;

   f)the wife’s cost of the hearing be otherwise reserved;

   g)the wife’s solicitor forthwith serve a copy of these orders on the husband by mail care of his mother and also by text message to the husband’s mobile telephone number.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Blake

Date: 7 June 2019