Mineyev and Mineyev

[2018] FamCA 453

FAMILY COURT OF AUSTRALIA

MINEYEV & MINEYEV [2018] FamCA 453

FAMILY LAW – PROPERTY – Undefended – Where one party is not able to be contacted – Where one party has been out of contact for a number of years – Where  there are allegations that one party has run up gambling debts against the former matrimonial home – Whether to transfer to property to the applicant.

Family Law Act 1975 (Cth)

APPLICANT: Ms Mineyev

RESPONDENT: Mr Mineyev

FILE NUMBER: SYC 4155 of 2016

DATE DELIVERED: 29 March 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 26 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Morahan

SOLICITOR FOR THE APPLICANT: Chen Shan Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The Applicant do all such things, acts and deeds and sign any documents necessary to cause or be caused the mortgage with Westpac Banking Corporation to be discharged for the property located at and known as B Street, Suburb C in the state on New South Wales and better particularised as the whole of the land in folio … (“The Property”).

2. That simultaneously with compliance by the Applicant hereof, that the Respondent transfer to the Applicant, at the cost of the Applicant, all his right, title and interest in the Property.

3. Upon transfer of The Property to the wife she is to be responsible for all outstanding Strata Levies, Council and Water Rates and any other statutory charges.

4. Until the transfer of The Property to the wife is affected by her the husband is restrained from further encumbering The Property or from borrowing any funds which enable a charge of any nature to be made on The Property.

5. The wife is permitted to publish to the Westpac Banking Corporation Ltd, as mortgagee on The Property, a copy of the orders made herein.

6. Should any documents or deeds or any instrument need to be signed by the Respondent and the Respondent cannot be contacted or located or if the Respondent refuses or neglects to execute, an officer of the Court is hereby appointed pursuant to Section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument. The party in default is ordered to pay all reasonable solicitor/client costs incurred by the party not in default for the purpose of enforcing this order, to be taxed if not agreed

7. That unless otherwise specified in these orders, each party is to retain and be declared the sole legal and beneficial owner, except for the purposes of enforcing payment of any money due under these or any subsequent Orders, all other real and personal property of whatsoever nature and kind in their respective ownership, possession and control as at the date of these orders, and that for this purpose:

   (a)Bank accounts are deemed to be in the possession of the person whose name appears on the bank record;

   (b)Superannuation entitlements are deemed to be in the possession of the person who is named as the employee whose age or working future provides the conditions for payment of such entitlements.

8. That subject to the above orders, the parties are each solely liable for and indemnify the other from all liabilities standing in their sole name.

9. That the Applicant and Respondent do all acts, things, give all consent and execute all documents and writings necessary to give effect to the Orders made herein.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Ms Mineyev

Applicant

And

Mr Mineyev

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application for Final Orders filed by the wife which was amended on 9 March 2018. By that application the wife seeks property orders. The orders sought, if granted, would see the property at B Street, Suburb C NSW transferred to the wife subject to the mortgage which she would discharge with funds provided by her parents. There are other orders sought also in that application.

2. In support of her application the wife relies upon the following documents.

   ·Amended Initiating Application filed 9 March 2018.

   ·Wife’s affidavit affirmed 31 January 2017.

   ·Wife’s affidavit affirmed 17 August 2017.

   ·Wife’s Financial Statement filed 28 September 2017.

   ·Affidavit of Ms D affirmed 12 September 2017 attaching a valuation of the Suburb C property.

   ·Wife’s affidavit affirmed 27 September 2017.

   ·Affidavit of Ms D affirmed 20 March 2018 setting out attempted service.

Background

1. The parties commenced their cohabitation in July 2000. They were married in 2000. Separation occurred in April 2009.

2. The wife was born in 1972. The husband is an adult male, there being no acceptable evidence about his date of birth (In the Wife’s Initiating Application the husband’s year of birth is said to be 2016).

3. There are two children of the marriage: X, born in 2001 and Y, born in 2005. Both children reside with the wife and have done so since the separation. The wife informed the court, through her counsel at the hearing, that post separation the husband collected the children from the Suburb C home on approximately two to three occasions each week and delivered them to school. Apart from those occasions the husband did not spend time with the children.

4. In September 2016 the husband left his employment and has had no contact with the wife or the children since that time. The wife reported the husband as a missing person, however, the Police contacted her shortly after the report and informed her they had located the husband and confirmed he was well. They informed the wife that he did not wish his whereabouts to be provided to the wife.

5. The wife’s evidence is that during the cohabitation and since separation she was aware from conversations with the husband and other sources that the husband was gambling and had gambling debts. She sets out occasions when the husband had sought money from her to pay off his gambling debts. Those requests were made both before and after separation. The wife considers the husband left his employment in 2016 in order to escape enforcement of gambling debts.

6. The wife relied upon the following submissions.

7. The wife’s contributions made during the marriage were in the nature of home maker and parent contributions. She also had employment and contributed her income. She received gifts of cash from her parents which she used for support of herself and the family.

8. The wife says that during the marriage the husband was in full-time employment. In the tax year in which he left his employment with E Pty Ltd the husband received an income of $302,722. When he left that employment the evidence shows he received benefits totalling $48,463 after tax. The benefits included long service leave.

9. Post separation the wife relies upon the following contributions.

10. Her contribution as home maker and parent to the children, which was made almost to the exclusion of the husband. The husband’s contribution was made between 2009 and September 2016 when he drove the children to school two to three days each week.

11. The first Child Support Assessment was made in 2014. The wife’s case is that only one payment was made between the issue of the Child Support Assessment and the end of 2015. That payment was for $3,000. Between 9 April 2017 and 11 September 2017 there were some child support payments made. The total for that period was $17,176.74.

12. The wife has paid the rates and outgoings on the property at Suburb C post separation, however, there are outstanding strata levies of $10,954 which she has not been able to afford.

13. The wife is now in full-time employment. She has an income of $25,090 per annum. She does receive social security payments for the children.

14. In relation to s 75(2) the wife submits the husband has a vastly superior earning capacity to herself. In the financial year ended 30 June 2016 he had a taxable income of $302,722 as is evident on the latest Child Support Assessment.

15. There is a child support debt of $21,821 currently owing by the husband.

16. Records produced by the husband’s last known employer show he had superannuation entitlements of $108,325 in 2016.

Findings

1. The parties were married in 2000. They commenced their cohabitation in July 2000. The parties separated in 2009 when the husband vacated the marital residence.

2. The wife is 45 years of age. The wife was born in China and arrived in Australia in December 1999 on a student visa. The husband is an adult male probably of about the same age as the wife.

3. There are two children of the marriage, namely X born in 2001 and Y born in 2005. Both of those children reside with the wife in the former matrimonial home at unit B Street, Suburb C in the State of NSW.

4. At the time of the marriage the husband had some savings and the wife had no significant assets.

5. The wife did not hold an Australian bank account until 2012. Throughout the marriage the wife received cash payments from her parents on occasions. She also saved cash she received from work.

6. After the birth of X the wife did not work. The husband managed all the family finances and the wife occasionally spent some of her savings to meet household expenses.

7. Between 1997 and 2016 the husband was employed by E Pty Ltd. During that time the husband’s salary grew with the change of positions he held.

8. In 2002 the former matrimonial home was acquired. It was acquired in the husband’s name. The purchase price was $156,000 plus purchase costs. To enable the purchase $180,000 was borrowed from the husband’s brother. The parties moved into the unit after the purchase and the wife and children still reside there.

9. In April 2003 the husband’s brother Mr F purchased a property at G Street, Suburb H. As the title search shows the property was purchased in the husband’s sole name. The best evidence suggests the purchase price was $280,000 and both the Suburb H and the former matrimonial home were charged as security for the whole of the purchase price.

10. The evidence satisfies me that the husband was a gambler. I accept that he stole some of the wife’s cash savings in 2006.

11. In 2006 the wife became aware that there were arrears owing to Westpac Banking Corporation Ltd on mortgage on the former matrimonial home. She challenged the husband who said he had borrowed $140,000 to pay debts. The nature of the debts was not disclosed, however, I accept there is at least an available inference that the debts were for gambling. The wife attributes to the husband a statement that he needed money because “there’s a loan shark after me for my gambling debts.”

12. In February 2007 the wife borrowed money from friends and relatives to build a fund of $30,000 to pay the husband’s gambling debts. The wife accompanied the husband to a café’ and saw him hand a bank cheque for $30,000 to another male. The wife says the husband promised to stop gambling at that time.

13. In 2007 the wife received $10,000 from her mother which she applied to meet household expenses as the husband had told her he did not have the funds to meet the expenses. In 2007 the wife obtained a job working seven days a week from 9.00 a.m. to 4.00 p.m. She repaid loans from relatives which had been obtained to pay the husband’s gambling debts.

14. After the wife started working she commenced paying for food items for the house. She was also asked from time to time to provide funds to the husband so he could pay the mortgage.

15. In August 2009 the parties separated. The husband left the former matrimonial home.

16. After the separation the husband spent some weekends with the children if the wife was working. He would also collect the children from child care sometimes and drive them home.

17. From April 2009 the wife worked six days per week and had Sunday off. She cared for the house and the children. She financially supported the children.

18. Following the separation the husband continued to borrow money from the wife from time to time. On occasions he told her it was to pay the mortgage.

19. From 2010 the husband would collect Y from childcare on Mondays, Thursdays and Fridays and drive her home. This also occurred in 2011. In June 2011 the husband repaid $2,000 of the cash he had borrowed from the wife.

20. The practice of the husband borrowing money from the wife continued in 2012. In August 2012 the husband owed Westpac Banking Corporation Ltd $137,592 on the mortgage secured against the former matrimonial home. He owed $272,274 on the mortgage on the Suburb H property and $2,160 on a Visa card.

21. In 2013 the husband took the children to school on some days each week. Throughout that year from time to time the husband borrowed funds from the wife. On some occasions some money was repaid.

22. In order to work the wife had to pay after school care for the children.

23. In May 2014 the husband continued to request loans from the wife. She gave him sums of $800 and $250. In July 2014 she gave him further funds of $800. Between 1 February 2014 and 31 July 2014 the wife lent the husband $2,100. She also paid child minding fees of $449 for after school care.

24. In 2015 the wife commenced to receive some payments of child support. The husband continued to borrow money from her from time to time.

25. In March 2015 the husband requested that the wife advise the Child Support Agency that they no longer were to collect child support. The husband promised to pay $1,000 per month. The husband transferred $1,500 in March 2015 then asked for $600 back. The wife provided the money. In April the husband paid $1,000 in child support and repaid $1,000 as loan repayment.

26. Between 1 February 2015 and 9 July 2015 the wife lent the husband $3,700. The husband repaid $1,000. The husband paid child support of $2,000 between July 2015 and January 2016. The wife lent him $300 in that period.

27. In February 2016 the wife paid the rates for the property of $1,700. In August the wife paid $2,509 in council rates. In 2016 the wife lent the husband $500.

28. In September 2016 the husband disappeared. The wife was contacted by his brother asking if she knew where the husband was. The wife made enquiries and then reported the husband as a missing person with the police. On 9 September 2016 the wife was advised the husband had been located. They reported he was well. They would not provide any other details.

29. As the former matrimonial home stood in the husband’s sole name and he was the only party to the mortgage with the Westpac Banking Corporation Ltd registered against the property, the wife could not be provided with any detail about default on the mortgage.

30. On 22 May 2017 the Suburb H property was sold for $595,000. Bank records attached to the wife’s affidavit show that in July 2017 the balance on the mortgage on the former matrimonial home mortgage was $237,471. That was reduced by a payment of $165,950 on 9 August 2017. The balance then remaining was $71,520.

31. The wife has had no contact from the husband since September 2016. She has tried to contact him with no success. She sent emails to an address she obtained for him and has had no response. The husband did not answer the mobile number she had for him.

32. The wife seeks an order which will require the transfer of the former matrimonial home to her. She will need to discharge the current mortgage. She has received a promise from her mother that the family will advance her up to $200,000 to enable the transfer.

33. The wife is now in full time employment and earns $450 per week net of tax.

34. The wife obtained a valuation of the former matrimonial home. An affidavit filed on 12 September 2017 attaches a copy valuation for the property stating a value of $430,000.

35. On 28 September 2017 the wife signed a Financial Statement. Her assets consisted of two bank accounts with total credits of $10,500. She has superannuation entitlement of $2,029. She has no liabilities.

36. An affidavit sworn by the wife’s solicitor Ms D on 20 March 2018 attests to service of the documents which the wife relied upon in this hearing, upon the husband by way of substituted service. An order for substituted service was made by Registrar Chayna on 23 March 2017. That service was effected on the last know email address of the husband.

37. The wife tendered certain documents. I find those documents establish as follows:

38. Exhibit W4 is a payment history for child support which was provided to the wife by the Child Support Registrar. It shows current arrears of $21,821.22. The last payment was made in April 2017. The last payment must have been collected from the husband post September 2016 or from some fund belonging to the husband which the Child Support Registrar has been able to identify.

39. Exhibit W5 is a Child Support Assessment for the periods 1 September 2016 to 30 November 2017. The child support is to be paid by the husband at the rate of $2,315 per month. The child support is calculated on the husband’s taxable income for the 2016 year of $302,722. The last document in this exhibit is a letter dated 22 March 2017 from the General Manager, Child Support Smart Centres. The letter informs the wife that recovery of arrears of child support to 11 September 2016 is being pursued and it contains the following “We have asked [Mr Mineyev] to pay this amount ($3,625.37) directly to us.” The direct inference is that the recovery officers of the Child Support Agency have made contact with the husband. Other aspects of his financial circumstances are not revealed in the correspondence. The wife has not provided a Child Support Assessment which covers a period which includes this hearing date.

40. Exhibit W6 consists of documents setting out the costs incurred by the wife in this proceeding. The wife’s costs are $43,936 of which sum she has paid $18,144.16.

The balance sheet

1. The balance sheet is uncomplicated. The asset is the Suburb C property valued at $430,000. The wife does have some savings ($5,000), however, that is all post separation savings and I will not include it in the balance sheet. I will take it into account under s 75(2). The current balance on the mortgage is $73,480.25. The wife’s superannuation is valued at $2,029 and the husband’s superannuation is $130,331 as at September 2016.

2. The husband owes $21,821 in child support. There are arrears of the Strata Levies of $10,954.37.

Assessment of contribution

1. I find the parties contributions at the commencement of cohabitation were as follows:

   ·Each party seems to have possibly had some savings.

   ·The husband had employment and may have had some superannuation entitlements.

2. I find the wife’s contributions during the marriage are as follows:

   ·The wife made a substantial contribution as a home maker and parent.

   ·The wife contributed savings which were in the form of gifts from her parents.

   ·From 2007 the wife contributed her income to the support of the family.

3. I find the husband’s contributions during the cohabitation are as follows:

   ·The husband contributed a proportion of his income.

   ·The husband played a minor role in the care of the children. This role seems to have grown slightly when the wife commenced employment in 2007.

   ·The husband, through his brother, obtained an advance of $180,000 to purchase the former matrimonial home for $156,000 in 2002. The property was purchased in the husband’s sole name.

   ·In 2003 the husband provided the former matrimonial home as part security for the purchase of the Suburb H property in his name. The husband made those arrangements and the property was occupied by his brother, although the husband probably paid the mortgage instalments on the property until 2016.

1. I find the wife’s contributions post separation are:

   ·The wife has played a very significant role in the care of the children.

   ·The wife has financially supported the children. The wife did not receive any child support until 2014 or 2015. Since the child support has commenced the husband has been in arrears.

   ·The wife has paid rates on the property. She has not paid any mortgage instalments or strata levies.

   ·The wife has maintained the residence.

   ·The wife provided substantial funds to the husband from her income when he requested those funds and there is evidence only of some repayment being made.

2. I find the husband’s contributions post separation are:

   ·It is difficult to determine what contributions the husband made. He possibly did pay mortgage payments until 2016. Ultimately, though, the property which he owned at Suburb H was sold by the mortgagee bank.

   ·The balance of the sale proceeds from the Suburb H property were paid in reduction of the mortgage on the former matrimonial home. Those proceeds amounted to $165,950 on 9 August 2017. However, the husband had borrowed against the former matrimonial home the sum of $137,592. The evidence suggests that those borrowings, at least at some level, were wasted on gambling. The evidence is that when the mortgage on the former matrimonial home was paid down with the balance of proceeds from the sale of Suburb H ($165,950) there was $237,471 owing on the mortgage. The husband has filed no evidence to explain how the mortgage reached that level.

   ·The husband played a minor role in the care of the children post separation. This largely consisted of driving the children to school in the morning two to three days a week.

   ·The husband paid some child support from about 2014.

3. I find the parties contributions are assessed as follows:

4. To the point of separation I find the husband’s contributions probably were very marginally greater than the wife’s only because for about a year the parties had the use of the husband’s brother’s $180,000 to acquire the former matrimonial home and use as they please. However in 2003 when the Suburb H property was acquired in the husband’s name the whole of the cost of that property was borrowed and the former matrimonial home used as part security for that purchase. Thereafter the husband serviced the loan on the Suburb H property.

5. I find the relevant s 75(2) factors are as follows:

6. The wife has had occupation of the former matrimonial home past separation, a period of nine years.

7. The husband borrowed up to $237,000 against the title of the former matrimonial home for purposes unknown to the wife. The wife’s evidence is that the husband spoke to her about borrowings of $130,000 against the house at one time before separation. He said he needed the money to meet debts. The overriding inference is that he was paying gambling debts.

8. One of the matters to be considered under s 75(2)(o) of the Act is the implication of the husband now hiding himself from the wife and the children. The reason for such action can only be the subject of speculation. Some of that speculation would include that the husband has abandoned his responsibilities to his family. On the other hand it must be remembered the husband has a lengthy history of gambling (probably addiction) and it may be that he has distanced himself from the family to protect them from being used to recover his gambling debts.

9. The wife is 45 years of age. She is in employment earning about $450 per week after tax. The husband’s whereabouts are unknown. The wife has been informed he is alive and well. Otherwise his circumstances are unknown. He last had employment which earned him a taxable income of $302,000 per annum. There is no evidence to establish he could not continue to earn those funds.

10. The children are now aged 16 and 12. Their care is wholly reposed upon the wife. There is nothing to suggest that will change before they become self-supporting adults. The husband’s last child support payment was made on 9 April 2017 and there are now arrears of at least $22,000. The current Child Support Assessment is based upon the husband’s 2016 taxable income. That may change should the husband now be unemployed.

11. The husband has superannuation which is very significant when compared to the wife. If the husband has or obtains employment which remunerates him to the level he was receiving in the 2016 tax year then he has the opportunity to significantly grow his superannuation. It seems improbable that the wife will increase appreciably her capacity to earn income and contribute to superannuation.

12. The husband has failed to engage in the court process and thus the orders sought by the wife are unopposed.

13. The wife has the ability to borrow funds from her family sufficient to discharge the mortgage on the former matrimonial home.

14. The wife has incurred costs of $43,936 of which sum she has paid $18,144.16.

15. I find an appropriate adjustment under s 75(2) is as follows:

16. I conclude that it is appropriate for an adjustment to be made to enable the wife to have the former matrimonial home become her property.

Orders to be made

1. The orders sought by the wife will be made. In addition an order will be made making the wife responsible for outstanding strata fees for the property and other council rates, water rates and taxes. That is necessary as those outstanding amounts have been taken into consideration in the determination which sees the former matrimonial home being transferred to the wife subject to the mortgage and outstanding charges, levies and the like.

2. The mortgage on the former matrimonial home is said to be a home loan. The amount of the loan advanced was considerably greater than that which it now stands at. The property stands in the husband’s sole name. The husband has shown a history of gambling. It is important not to have a situation arise where the husband was to draw down funds against the property before the wife effected the transfer to her name. I propose to order the husband be restrained from further encumbering the property. The court orders will create for the wife a caveatable interest and if she was concerned she could lodge a caveat against the title. Further I will grant leave to the wife to provide a copy of the orders made today to the mortgagee so the Westpac Banking Corporation Ltd is on notice of the court orders.

Costs

1. The wife sought an order for her costs to be paid by the husband. I will not make such an order for the following reasons:

   ·I have taken into account the costs incurred and paid by the wife in assessing the adjustment to be made under s 75(2) above.

   ·I consider the costs incurred for an undefended property application to be far higher than I would normally have expected to see. I consider, looking at the affidavit evidence and the court file as a whole, that at least some of the cost incurred by the wife was unnecessary. The trial affidavit which she relied upon (filed 27 September 2017) contains many pages of unnecessary material. The affidavit is 88 pages in length, and has 136 pages of annexure. The affidavit, in my view, required no more than 30 paragraphs and 20 pages of annexures. In addition the court was provided with a “Trial Book”. This is a photocopy of all material relied upon by the wife in the hearing. The book consists of 412 pages and contained 13 documents which were not read. In my view the solicitor for the wife should review the cost charged to the wife for the preparation of her trial affidavit and she should not be charged for “The Trial Book”.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 29 March 2018.

Associate: 

Date:  29 March 2018