Reuters & Reuters

FAMILY COURT OF AUSTRALIA

REUTERS & REUTERS

[2008] FamCA 1096

FAMILY LAW – PROPERTY SETTLEMENT – where wife’s application undefended – standard of proof of value of assets

FAMILY LAW – PRACTICE AND PROCEDURE – service – where evidence that husband served with previous court documents by post to last known address in Qatar – order for three methods for service of final orders

Family Law Act 1975 (Cth), ss 79, 75

Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

APPLICANT:

Ms Reuters

RESPONDENT:

Mr Reuters

FILE NUMBER:

MLC

2369

2008

DATE DELIVERED:

15 December 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ

HEARING DATE:

15 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Steele

SOLICITOR FOR THE APPLICANT:

M K Steele & Giammario

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

No appearance

Orders

The wife retain as her sole property:
(i)the real property situate at and known as D property in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … ( “the [D] property”) ;
(ii)the Mitsubishi Lancer 2003 motor vehicle, registration number: …;
(iii)her share and interest in G Business Pty Ltd;
(iv)the contents of the D property.
The husband pay to the wife the sum of $235,000.00 ("the payment") on or before 2 February, 2009 ("the date").
Contemporaneously with the payment:
(i)the wife withdraw any caveat lodged by her over the property situate at and known as C property in the State of Victoria ("the [C] property") and the property situate at M property in the said State being the whole of the land described in Certificate of Title Volume: … Folio: … ("the [M] property").;
(ii)the husband indemnify the wife against all payments and liability pursuant to any encumbrance affecting the C property and the M property and all rates taxes and outgoings of or with respect to these properties of whatsoever nature and kind.
In the event that the whole payment has not been made by the date then the husband sign all documents and do all things necessary to transfer the C property and the M property to the wife to be held by the wife on trust for sale altogether out of court by public auction as soon as practicable ("the sales") and the proceeds of the sales be applied:
(i)firstly to pay all costs, commissions and expenses of the sales;
(ii)secondly to discharge the mortgages to Perpetual Trustee Company Ltd encumbering the said properties and any other encumbrance affecting the said properties;
(iii)thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 12.25 per centum per annum adjusted monthly from the date to the wife;
(iv)fourthly the balance to the husband.
That pending the completion of the sale:
(i)the husband pay all instalments pursuant to the mortgages encumbering the C property and the M property and all rates and taxes and like apportionable outgoings of the said properties as and when they fall due;
(ii)The parties hold their respective interests in the real property upon trust pursuant to these orders;
(iii)Neither party encumber the said properties without the consent in writing of the other party or order of this court first being had and obtained.
(iv)The husband do all acts and things necessary to facilitate the marketing of the properties for sale and the sales.
In default of the husband doing all acts and things and executing all such documents as are necessary pursuant to these orders, a Registrar of the Family Court of Australia at Melbourne be appointed pursuant to section 106A of the Family Law Act to execute all such documents in the name of the husband and do all such acts and things as are necessary pursuant to these orders;
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders
(i)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
(ii)each party forgo any claims they may have to any superannuation interests belonging to the other
(iii)insurance policies remain the sole property of the beneficiary named therein
(iv)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
(v)any joint tenancy of the parties in any real or personal estate is hereby expressly severed
The husband be served with a sealed copy of these orders:-
a.by posting a copy to the husband’s address on his letter to the Court dated 6 July 2008;
b.by attaching a copy of the orders or otherwise setting out in full the orders in an email to the husband; and
c.if possible, by personally serving the husband with a sealed copy of these orders during his anticipated visit to Australia.
Service pursuant to sub-paragraph (a) and (b) is to be effected by posting and emailing the order respectively no later than 18 December 2008.
The wife also serve the husband with a copy of the reasons for judgment given this day by the same methods set out in Order 8 no later than 23 December 2008.
The wife’s application filed 13 May 2008 be otherwise dismissed and the matter be removed from the list of matters awaiting finalisation.
The husband have leave to apply to set aside or vary these orders within one month of service of the last of the documents as provided in Orders 8 and 9 hereof.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2369 of 2007

MS REUTERS

Applicant

And

MR REUTERS

Respondent

REASONS FOR JUDGMENT

The proceedings before me are an application by the wife for orders for property settlement pursuant to section 79 of the Family Law Act1975 (Cth) (“the Act”). The proceedings were commenced by application made on 13 May 2008 in which the wife sought orders which would enable her to retain as her sole property the real property at D, Victoria, and that the husband pay to her a lump sum in an undetermined amount.
It appears that the Application was personally served on the husband and that shortly thereafter he left Australia and has been residing in Qatar, where he is working.
On 6 July 2008 the husband wrote to the Family Court, citing the reference number of the case and indicating that he had received "a set of documents regarding family court case No MLC 2369607 on Saturday 28 June 2008". He advised that he had been transferred to the Middle East for work commitments and that he had left on 30 June for approximately 18 months. He said that he would be returning over the course of the 18 months and apologised for his non‑appearance on the first return date of the matter which was 8 July 2008 at 9.15 am. He said:
…if a court date was made for around late December 2008, I would be able to apply for leave.
On 8 July 2008, there being no appearance by the husband, the matter was adjourned to 8 September 2008 and the husband was ordered to file and serve a Response to the wife's application, a financial statement and a notice providing an address for service in Australia. The order also provided that in the event the husband did not comply and did not personally appear or arrange for someone to appear on his behalf, then the wife would have liberty to have any application of the husband dismissed and to have her application proceed as undefended.
On 8 September 2008 the matter came back to the Court in the Registrar's List. Orders were made but the husband did not appear and in view of the letter to which I have referred, there was an order requiring the wife to file any amended application, a trial affidavit and any expert valuations that she sought to rely on before 13 October 2008. The wife was given liberty to issue any subpoenae within 14 days and there was a further order that service on the husband be effected by posting sealed copies to the husband's address noted on the husband's letter to the Court dated 6 July 2008. The proceedings were listed for hearing on 7 November 2008 at 10.00 am.
For reasons not immediately apparent, the matter was not listed on 7 November but on 6 November and came before me in the Duty List. At that stage the wife had not filed an amended application and I ordered that the time in which she had to file an amended application be extended to 13 November. I also ordered that she cause the husband to be served with copies of:
a)any amended application;
b)her affidavit of evidence;
c)expert valuations, if any;
d)a sealed copy of the order of 8 September, and
e)a sealed copy of the order of 6 November 2008,
and provided that service be effected by posting copies of the documents to the husband's address on his letter to the Court dated 6 July 2008.
Order 4 of my orders provided that the application be listed for final hearing on an undefended basis and that the husband have liberty to apply to the Court within 14 days of service upon him of the documents in the event that he wished to appear and oppose the orders sought by the wife.
The matter has come before me this morning. The wife appears and is represented by counsel. The husband was called but does not appear and no‑one appears on his behalf.
An affidavit of service was handed up this morning, indicating that the husband had been served with the following documents:
(1)a sealed copy of the order made on 8 September 2008;
(2)a copy of the wife's affidavit filed 6 November 2008;
(3)a copy of the order made 6 November 2008;
(4)a copy of the amended application for final orders filed 10 November 2008;
(5)a copy of a subpoena to Perpetual Trustee Co Ltd filed 10 November 2008;
(6)a copy of a Cbus superannuation form dated 13 November 2008 in relation to the superannuation interests of the wife, and
(7)a copy of a Cbus superannuation form dated 13 November 2008 in relation to the superannuation interest of the husband.
I am therefore satisfied that the documents ordered to be served upon the husband in accordance with the order of 6 November have been served at the address provided.
Concluding the question of notice to the husband, the wife gave some brief evidence this morning and indicated that although she has not been personally in touch with the husband, the parties' son speaks to the husband regularly on Skype and as recently as six weeks ago, spent a month with him in Qatar. The wife believes that the husband intends to come to Australia during the Christmas holiday period but does not know where he will be staying and believes that he will be wary of service upon him, noting that he left Australia for Qatar two days after having been served with her original application.
She understands from discussions with their son that he is still living in the same apartments, although he may have moved to a higher floor. If that is so, then I would infer that he would make arrangements for mail which went to his old address to be forwarded to any new address within the building. I am as satisfied as I can be that the documents have come to the attention of the husband.
In any event, he has not communicated with the Court after the first communication and if he wished to know what had occurred since his original letter, then one would have expected him to have made further inquiries of the Court. His behaviour, in my view, is consistent with somebody who is aware of the proceedings and wishes to take no part in them.
For those reasons, I intend to proceed with the matter on an undefended basis today.
The amended orders sought by the wife are set out in her amended application filed 10 November 2008 as follows:
(1)The wife retain as her sole property:
(a)the real property situate at and known as [D property] in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume […] Folio […] ( “the [D] property”) ;
(b)the Mitsubishi Lancer 2003 motor vehicle, registration number: […];
(c)her share and interest in [G] Business Pty Ltd;
(d)the contents of the [D] property.
(2)The husband pay to the wife the sum of $235,000.00 ("the payment") on or before 2 February, 2009 ("the date").
(3)Contemporaneously with the payment:
(a)the wife withdraw any caveat lodged by her over the property situate at and known as [C Property] in the State of Victoria ("the [C] property") and the property situate at [M] in the said State being the whole of the land described in Certificate of Title Volume: […] Folio: […] ("the [M] property").;
(b)the husband indemnify the wife against all payments and liability pursuant to any encumbrance affecting the [C] property and the [M] property and all rates taxes and outgoings of or with respect to these properties of whatsoever nature and kind.
(4)In the event that the whole payment has not been made by the date then the husband sign all documents and do all things necessary to transfer the [C] property and the [M] property to the wife to be held by the wife on trust for sale altogether out of court by public auction as soon as practicable ("the sales") and the proceeds of the sales be applied:
(a)firstly to pay all costs, commissions and expenses of the sales;
(b)secondly to discharge the mortgages to Perpetual Trustee Company Ltd encumbering the said properties and any other encumbrance affecting the said properties;
(c)thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 12.25 per centum per annum adjusted monthly from the date to the wife;
(d)fourthly the balance to the husband.
(5)That pending the completion of the sale:
(a)the husband pay all instalments pursuant to the mortgages encumbering the [C] property and the [M] property and all rates and taxes and like apportionable outgoings of the said properties as and when they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders;
(c)Neither party encumber the said properties without the consent in writing of the other party or order of this court first being had and obtained.
(d)The husband do all acts and things necessary to facilitate the marketing of the properties for sale and the sales.
(6)In default of the husband doing all acts and things and executing all such documents as are necessary pursuant to these orders, a Registrar of the Family Court of Australia at Melbourne be appointed pursuant to section 106A of the Family Law Act to execute all such documents in the name of the husband and do all such acts and things as are necessary pursuant to these orders;
(7)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)each party forgo any claims they may have to any superannuation interests belonging to the other
(c)insurance policies remain the sole property of the beneficiary named therein
(d)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
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed
(8) Such further or other orders as this court deems fit.

That application is supported by an affidavit filed on 6 November 2008 and the wife's counsel this morning set out in oral submission relevant matters in relation to the asset pool and to the matters arising under s 79(4) and the matters under s 75(2) of the Act to which the Court should have regard. He handed up a spreadsheet, indicating the asset pool as far as it could be ascertained.
The function that the court must carry out in a property settlement is to ascertain the assets and liabilities of the parties and their value and to arrive at, as far as possible, a net asset pool. The court must then consider the contributions of the parties to the acquisition, conservation and improvement of the assets and then consider any matters that are relevant under s 75(2) of the Act. Finally, the court must be satisfied that in all circumstances, the orders are just and equitable. (Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143)
I find the asset pool as set out in the spreadsheet to which I have referred to be as follows:
WIFE
D property  $650,000
1^st mortgage Westpac  ($148,000)
2^nd mortgage Westpac  ($150,000)
(net equity in D property = $352,000)
50% G Business Pty Ltd   $ 75,000
Right of indemnity Mr P  $ 75,000
Lancer motor car  $ 10,000
Home contents  $   5,000
Cbus superannuation  $ 22,954
Debt to Ms T  ($10,000)
WIFE’S NET TOTAL  $529,954
HUSBAND
M property  $360,000
Perpetual mortgage  ($201,600)
(net equity in M property = $158,400)
C property   $800,000
Perpetual mortgage  ($437,500)
(net equity in C property = $362,500)
Business equipment  $300,000
Mobile home  $ 80,000
Holden Club sport car  $ 50,000
Subaru WRX  $ 10,000
Ducati road motor cycle  $ 10,000
Speedboat  $ 80,000
Cbus superannuation  $ 51,339
HUSBAND’S NET TOTAL  $1,102,239
PARTIES’ NET TOTAL  $1,632,193
There are some figures which require explanation. The property in which the wife is living in D is encumbered by two mortgages to the Westpac Banking Corporation. The second mortgage is a mortgage of $150,000 and relates to a business that the wife and her present partner are involved in. She has brought that asset into account as a liability but she then brings in as an offsetting asset her half-interest in the business and the right of indemnity from her partner in a similar amount because the mortgage is secured over her property. The effect of that is to offset the two amounts. The same result could be achieved in another way by ignoring the second mortgage and ignoring the business, the business having been acquired post-separation.
Apart from the property in D in which the wife and children are living and its encumbrances and the businesses that she and her present partner now operate, she has a Lancer motor vehicle, the contents of the home, some modest amount of Cbus super, and a debt to one Ms T. Her net assets therefore are $529,954.
The husband has two properties and some other chattels, including business equipment. He has a property in M which the wife has estimated at $360,000, having made recent inquiries as to value. However, in her affidavit served on the husband the M property was estimated at $400,000. The husband has chosen not to respond by denial. The property is secured by a mortgage to Perpetual Trustees in an amount of $201,600, that amount having been obtained by subpoenaed material. It is made up of two mortgages.
The husband's second property is in C and she values it at $800,000. I have noted the difficulties that the wife has had in obtaining a more formal valuation. Her valuer was denied access to the property. There is a mortgage to Perpetual for $437,500, again obtained by way of subpoenaed material. Through her counsel, the wife indicates that it is not entirely clear whether the entirety of the mortgage is still owing and she has not been able to ascertain whether that is so or not. However, the husband has in these calculations been given the benefit of the doubt, and the calculation was done on the basis that all the amounts as shown in the subpoenaed material are still outstanding. There were arrears outstanding to Perpetual, but these have recently been brought up to date.

The husband also has business equipment, a mobile home, two cars, a motorcycle, a speedboat and Cbus superannuation worth $51,399, that information having been obtained from Cbus. Of necessity and for the same reasons mentioned above, the figures for the value of the other assets may not be as accurate as they might be if the husband had participated in the proceedings. It may be of course that the assets are worth slightly less, but on the other hand, it may be that they are worth more. The exact ascertainment of their value has been denied as a result of the husband refusing to take part in the proceedings. Nevertheless, he has seen the wife’s affidavit where these assets and their value are discussed.
The assets total $1,632,193 net. The assets in possession of the wife, if she is paid the $235,000 sought by her, would give her 46.87 per cent of the assets and the husband would then be left with 53.13 per cent.
The parties were married in October 1988, having commenced cohabitation in 1986. They separated in November 2000 and at the time of separation, the husband left the matrimonial home in which the wife and children were living in R. A divorce was granted on 18 May 2007. There are two children, born in November 1990, and June 1993. Both children presently reside with the wife and have done so since separation. The husband was born in July 1964 and the wife in September 1964.
Since separation, the wife deposes to the fact that the husband spent time irregularly with the children and the time spent with each of the children varied from time to time and was ordinarily initiated by the husband. The older child saw the husband at his departure from Australia in June 2008, but had not spent any significant time with him for two years prior to that date. The younger child obviously has more contact with his father. He last spent time with his father from mid-September to mid-October this year and the husband paid for that child’s air fares from Melbourne Airport to Qatar and return.
In the period of approximately two years prior to his departure to Qatar, the husband generally spent time with the younger child on Wednesday evenings and alternate weekends. After separation, the husband initially provided the wife with the sum of $300 per week, together with some other expenses for the children, and in mid-2007, unilaterally reduced the financial support to $150 per week, apparently for the younger child, which the wife still receives.
Neither the husband nor wife had any assets of significance prior to the commencement of their cohabitation, save that the husband owned an MG motor vehicle. They initially purchased a home at H in their joint names, borrowing most of the costs and expenses and the husband sold the MG vehicle and applied the proceeds towards the purchase. The parties lived in H for approximately eight years before selling that property and purchasing the home in R in 1997. The proceeds of sale of the H property were applied to the purchase of the matrimonial home in R.
Following their separation, the wife wished to sell the matrimonial home as it was too large for her to maintain and she wanted to live closer to the boys' secondary school, near D. With the husband's consent, the former matrimonial home was sold. The net proceeds amounted to $474,000 after discharge of the existing mortgage. The husband agreed that the wife should apply the whole of the net proceeds to the sale of her current home at D. She acquired that property in 2002 in her sole name for approximately $604,000 and the children and she have resided there since. Apart from the proceeds of sale of the matrimonial home, she obtained a further sum of $150,000 by way of mortgage from Westpac to complete the purchase of the D property.
When the parties were first married, the husband was self-employed in the building industry run through a company, L Pty Ltd. Subsequently he commenced another business, and in 1993 incorporated J Pty Ltd and bought vacant land at C, on which a factory was subsequently constructed.
At the time of separation, the husband was running the business and as far as the wife is aware, continued to run the business following separation. At the time of separation, he was also conducting a business under an entity called Y Pty Ltd and was also in a business involving the construction of domestic equipment.
The wife deposes to the fact that the husband is still the owner of the factory premises in C and the other property referred to and that he also retains an amount of equipment. She believes that his work in the Middle East is one involving the hire and use of this equipment, although she is unaware of what company he is working for and the husband has not provided that information.
At the commencement of cohabitation the wife was employed as an office assistant and subsequently worked as a veterinary nurse. She stopped work shortly prior to the birth of the first child and performed casual employment prior to the birth of the second child. Following the birth of the second child, she worked as a casual house cleaner and then in pet care and continued in that employment up until separation. Since separation, she has continued to work casually in pet care.
During the marriage, apart from the paid employment that the wife had on a casual basis outside the home, her primary role was as homemaker and parent in relation to the household and the children. During the marriage, the husband's primary role was as breadwinner.
I am satisfied, having regard to the contributions of each of the parties to the acquisition, conservation and improvement of their property or the property of either of them up until the date of separation, the parties have made relatively equal contributions.
Since separation, the husband has continued to make financial contributions to the children and has cooperated with the wife in enabling her to sell the former matrimonial home and acquire a suitable property. The wife, for her part, has continued in the primary parenting role with the children living with her since separation and spending most of their time with her. I find that she has clearly been the primary caregiver for the children since separation.
In all the circumstances, I see no reason why the position of the quality of contribution that I have found to be appropriate at separation should change since separation. As at the time of the hearing today, I find that the contributions of the parties have been ostensibly equal.
The orders sought by the wife on the basis of the valuation of the properties provided to me do not seek any further adjustment under s 75(2) of the Act. I make no criticism of counsel for not seeking it, but had it been sought and argued, this may well be a case in which there would be potentially a further adjustment for the wife, primarily on the basis of the differentiation in earning capacities.
The wife commenced cohabiting in a domestic relationship this year with Mr P and it is with him that she has commenced business through a company called G Business Pty Ltd. However, the business is in its early stages and is not yet profitable.
The husband has conducted his businesses successfully over a number of years and is working now in the Middle East. I infer that he is doing so because it provides adequate financial remuneration to him. He still has business equipment and two properties, including the factory property, available to him in Australia.
It will be apparent from the matters that I have indicated that I am satisfied that the orders sought by the wife which provide for a close to equal division of the assets, although one which slightly favours the husband, to be just and equitable in all the circumstances and I am prepared to make the orders as sought by the wife.
The one remaining issue is the question of notification to the husband. The orders seek not only that the wife retain the property in D as her own property but that the husband pay to her the sum of $235,000 on or before 2 February 2009. The orders would provide that in the event that he does not do so, then there is to be a sale of the C and M properties in order to meet the amount due to the wife. Thus, the orders contemplated, if not met, will provide for the husband's property to be sold.
Given that he has not participated in the proceedings and that, for reasons that I have already outlined, personal service on him has not been possible, in my view he ought to be given liberty to apply to the Court to set aside the orders after he has been served with them. However, I propose to provide for three kinds of service and the effecting of service by any two means of them will be sufficient. The first will be that the documents should be sent by prepaid post to the address provided by him in Qatar in accordance with previous orders; secondly, the wife gave evidence that she had an email address for him and I propose to order that he be advised by email of the orders, and thirdly, there will be an order that, if possible, the husband be personally served.
I will make orders on an undefended basis in terms of the minute of proposed orders handed up to me today in accordance with those orders. Order 8 will be varied slightly to provide as follows:
(8)The husband be served with a sealed copy of these orders:
a)by posting a copy to the husband's address on his letter to the Court dated 6 July 2008;
b)by attaching a copy of the orders or otherwise setting out in full the orders in an email to the husband; and
c)if possible, by personally serving the husband with a sealed copy of this order during his anticipated visit to Australia.
Service pursuant to subparagraph (a) and (b) is to be effected by posting and emailing the order respectively no later than 18 December 2008.
I also propose to order that the husband be served with a copy of these reasons in the same manner as above and by 23 December 2008.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant

Associate:

Date: 16 December 2008

[2008] FamCA 1096

15 December 2008

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