OWEN & MERRIL
[2011] FMCAfam 947
•6 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OWEN & MERRIL | [2011] FMCAfam 947 |
| FAMILY LAW – Undefended property proceedings – wife is victim of scam by husband – wife made 100 per cent of contributions to property – husband left Australia taking more than $60,000 of the wife’s funds. |
| Family Law Act 1975, ss.79, 75 |
| Hickey and Hickey (2003) FLC 93-143 |
| Applicant: | MS OWEN |
| Respondent: | MR MERRIL |
| File Number: | MLC 9222 of 2010 |
| Judgment of: | Hughes FM |
| Hearing date: | 8 April 2011 |
| Date of Last Submission: | 8 April 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 6 September 2011 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | nil |
ORDERS of 8 April 2011
The applicant wife has leave to proceed in the absence of the respondent husband, he having failed to appear despite participating in the proceedings by telephone on 7 December 2010 when the matter was listed for hearing.
The applicant wife is declared to be the sole owner to the exclusion of the husband of all moneys held in the name of the husband or in the name of the husband trading as [M] in the following accounts:
(a)[1]
(b)[2]
(c)[3]
(d)[4]
The wife has liberty to transfer all funds in the accounts listed above to an account in her name for her sole use.
The wife is declared to be the sole owner to the exclusion of the husband of the 2007 [omitted] motor vehicle, registration number [omitted].
The wife has liberty to apply to the Victoria Registrar of Motor Vehicles to transfer the motor vehicle into her name without the consent of the husband who is the current registered owner, and the Registrar is requested to give effect to any such application.
The wife has liberty to apply for further property orders in the event the husband or property belonging to the husband is in Australia.
The husband shall within 30 days of the date of these orders return to the wife the guitar, keyboard and camera purchased by the wife and taken with him out of Australia on 21 September 2010.
The wife has liberty to use the reasons for decision in any other financial proceedings between the parties, including in Fiji.
Otherwise the application for property settlement filed on 1 October 2010 is dismissed.
AND THE COURT NOTES THAT:
A.These orders represent a partial property settlement in circumstances in which the Court is satisfied the husband left Australia without notice to the wife, taking funds of the wife in excess of $60,000.
B.Reasons for decision will be issued shortly.
IT IS NOTED that publication of this judgment under the pseudonym Owen & Merril is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 922 of 2010
| MS OWEN |
Applicant
And
| MR MERRIL |
Respondent
REASONS FOR JUDGMENT
These are undefended property proceedings after a very short marriage.
The wife is Australian and the husband Fijian. They met in Fiji in 2009. The wife sponsored the husband’s migration to Australia in November 2009. They married [in] 2010. A little over one month later, on 21 September 2010, the husband left Australia taking most of the wife’s life savings.
The husband was served with the proceedings and participated by telephone link from Fiji on 7 December 2010. On that day, the proceedings were listed for final hearing on 8 April 2011. The husband failed to attend the hearing and orders were made in his absence. Reasons were not delivered that day. These are the reasons for decision.
Background
The wife is aged 44 and the husband 38. They were introduced over the telephone in mid 2009 by the husband’s sister who lives in Australia.
The wife travelled to Fiji for several weeks in July 2009 and the parties commenced a relationship at that time. On a subsequent trip to Fiji in September 2009 the parties agreed to marry.
The husband migrated to Australia on 22 November 2009, sponsored by the wife. His visa remained valid until 20 August 2010 by which time it was necessary for him to marry if he wanted to stay in Australia.
When they met in July 2009 the husband told the wife he had no bank account as he had no money. The wife helped him open a Westpac bank account in Fiji.
When the husband arrived in Australia the wife helped him apply for numerous jobs. Between November 2009 and February 2010, the husband undertook two days work [omitted] and two days [omitted].
The wife worked 13 days each fortnight at two jobs with extra shifts in order to support them both and to save some money.
In February 2010, in order to provide the husband with some employment, the wife bought him a [omitted] business for $10,000 and a [vehicle] for $15,000, both of which were purchased in his name. The vendor of the business told the parties she earned between $3,500 and $7,500 per month working part time in the business. The plan was for the husband to work in the business full time.
In March 2010 the wife helped the husband open two Westpac bank accounts, one for the business and one for personal use. Later they opened an “e-saver” account for the husband. The wife also had an
e-saver account. The parties’ savings accounts were linked for the purpose of internet banking. The parties agreed the wife would use her savings account to save for a deposit on a home and the husband would use his savings account to save for their wedding. They agreed not to withdraw any money from either account except for those specific purposes.
The wife made regular deposits to her savings account from her wages. She also transferred to the account some previous savings and the proceeds of sale of some shares. By 3 May 2010, the wife had accumulated almost $94,000 in her savings account. In the same period the husband saved $160 which he subsequently withdrew. Some of the wife’s savings were used to pay for business expenses which the husband was unable to meet.
In April 2010 the parties argued about the fact that the [omitted] business was losing customers and was running at a loss. The husband left Australia, telling the wife he needed time to think about their relationship. He returned later that month, telling the wife he was committed to their relationship and wanted to marry.
In May 2010, the parties agreed to transfer the amount in the wife’s savings account to an account in her father’s name for safe-keeping. There was a limit of $1,500 that could be transferred by internet at any one time without special arrangements. The parties attended the bank together and were told a code would be sent to them in the mail which would allow the transfer of the balance of the account. As a sign of good faith the husband gave the wife his ATM cards and authorized her to operate all of his accounts.
As far as the wife knew, the code to authorise the transfer of her savings never arrived in the mail but it is apparent the husband took it. The wife pressed the husband to go with her again to the bank to arrange for the transfer. The husband kept postponing the trip to the bank, telling told the wife he felt overwhelmed by the financial issues and reassuring her she had nothing to worry about, given she had his cards and could operate his accounts.
On 10 June 2010, the husband secretly transferred the remaining funds in the wife’s account of over $76,000 to an account in his name. He reported the ATM cards stolen so that they were cancelled and fresh cards issued to him. He also removed the wife as an authorised person in relation to his accounts.
In July 2010, the wife noticed that her savings account no longer showed up on her internet banking page. She also noticed the paperwork in relation to the account was missing from her home. She suspected the husband might be trying to take her money. She said she became very distressed and the parties separated for a brief time. Incredibly, the wife allowed herself to be reassured by the husband again and they reconciled.
The parties married [in] 2010 in a simple ceremony at their home.
The wife paid for a [omitted] course for the husband to attend between 5 and 27 September 2010 and for him to undertake a series of weekly [omitted] courses which were to run until December 2010.
In September 2010 the wife insisted she would not wait any longer for the husband to accompany her to the bank to arrange the transfer of funds to her father. The husband agreed to go as soon as the [omitted] course ended on 27 September 2010.
On 21 September 2010, the husband left the former matrimonial home, taking with him various items of property belonging to the wife, including a camera, guitar and keyboard. The wife reported him missing and was informed by the police on 27 September that he had left Australia on 21 September 2010.
The wife subsequently discovered that the husband had transferred her money to his account and was steadily withdrawing funds from it.
The wife filed proceedings on 1 October 2010 and that day obtained urgent orders freezing all of the husband’s accounts. By then the husband had withdrawn funds in excess of $60,000.
The proceedings were adjourned to 7 December 2010. On that day the husband appeared by telephone link. The telephone line was poor but he provided an address for service. All of the documents were served on him but he did not participate any further in the proceedings.
Before the final hearing, the wife discovered that, throughout their relationship, the husband had maintained a relationship with a woman in Fiji who gave birth to his child in 2010.
The law in relation to property
Section 79 of the Family Law Act 1975 empowers the Court to make orders altering the property interests of the parties. In making a determination about the issue, the Court is required to undertake a four step process as follows[1]:
a)Firstly, the Court is required to identify the net assets or property available for distribution at the date of hearing.
b)Secondly, the Court must assess the contributions of the parties to the acquisition, conservation or improvement of the property as provided in subsections 79(4)(a),(b) and (c) of the Act. Contributions include financial and non-financial contributions, direct and indirect contributions and contributions made to the welfare of the family in the capacity of homemaker or parent.
c)Thirdly, the Court must consider the matters set out in the remaining subsections of section 79(4) which incorporate section 75(2) of the Act. These matters broadly require a consideration of the financial position and resources of the parties, their age and state of health, their necessary commitments in supporting themselves or any other person, the effect of the marriage on the earning capacity of either party and the effect of any proposed order on the earning capacity of either party.
d)Fourthly, the Court is required to determine, in light of the findings arising from the first three steps, what order is just and equitable in the particular circumstances of the matter.
[1] Hickey and Hickey (2003) FLC 93-143 at 78,386
In this case the property pool is hard to define as the wife does not know what the husband did with the funds withdrawn from her account. It seems likely however that all of the funds or anything purchased with them were taken by him to Fiji. The only property in the husband’s name is the business, the [vehicle] and any funds remaining in his accounts. The current pool is significantly less than it was in May 2010.
I am satisfied on the evidence of the wife that she made 100 per cent of the contributions to the joint property pool.
The section 75(2) factors cannot properly be assessed in the absence of any evidence from the husband. However subsection (o) allows the Court to take into account any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account. In this case the most significant factor is the carrying out by the husband of a cruel scam which resulted in him stealing more than $60,000 from the wife. It warrants the wife taking all of the remaining property.
Although the wife taking all of the remaining property is the only just and equitable result in the circumstances of this case, the wife will not, in fact, obtain a just result unless she is successful in any legal action against the husband in Fiji. That is an avenue the wife said she may pursue.
Orders were made on 8 April 2011 declaring the wife to be the owner of all property including bank accounts in the husband’s name in Australia. The orders also gave the wife liberty to bring further proceedings in the event the husband or any property owned by him is found to be in Australia.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Hughes FM
Date: 6 September 2011
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