SALTON & MORAND

[2015] FamCA 94

FAMILY COURT OF AUSTRALIA

SALTON & MORAND [2015] FamCA 94

FAMILY LAW – PROPERTY SETTLEMENT – DE FACTO RELATIONSHIP – Where the parties were in a de facto relationship for approximately 11 years – Where there are two children of the de facto relationship – Where it is found that the parties jointly purchased the home even though it was in the respondent’s sole name – Where the respondent refused to allow the applicant to live with the children in the  home after separation –Where the respondent refinanced the mortgage over the home without notice to the applicant – Where the respondent sold the home without notice to the applicant – Where the applicant has the full time care of the children – Where the respondent resides in Country E for most of the year – Orders made that the net proceeds of sale from the  home be transferred to the applicant.

Family Law Act 1975 (Cth) ss 4AA, 90SB, 90SK, 90SF

APPLICANT: Ms Salton

RESPONDENT: Mr Morand

FILE NUMBER: SYC 5438 of 2014

DATE DELIVERED: 24 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 23 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Robertson Saxton Primrose Dunn

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. That the applicant is entitled, by way of property settlement, to the whole of the money held by B Lawyers consequent upon the sale of the property at C Street, Suburb D.

2. That a copy of these Orders and the Reasons for Judgement be served upon the respondent by electronic means by 10am on Wednesday 25 February 2015.

3. That after 10am on Wednesday 4 March 2015, B Lawyers pay to the applicant, or at her direction, the whole of the money referred to in Order 1.

4. That other than is provided in these Orders, each party shall be entitled to retain any property in her or her possession at the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5438 of 2014

Ms Salton

Applicant

And

Mr Morand

Respondent

REASONS FOR JUDGMENT

1. On 2 September 2014 Ms Salton (“the applicant”) filed an application seeking orders for property settlement arising out of a de facto relationship with Mr Morand (“the respondent”).

2. When the matter came before the Court on 23 February 2015, there was no appearance by the respondent. The respondent had been served on 29 September 2014 and an Affidavit of Service had been filed. Subsequent to service of the application, correspondence was directed by the solicitors for the applicant to the respondent.

3. The respondent did not attend at the Case Assessment conference on 2 October 2014, and the Registrar granted leave for the applicant’s solicitors to communicate with the respondent via email.

4. The respondent did not appear at the Conciliation Conference on 2 December 2014. At the conclusion of the Conciliation Conference the Registrar, noting that the respondent had not filed a Response or Financial Statement and had not participated in the preparation of the Balance Sheet or attended the conference, listed the matter for a possible undefended hearing on 23 February 2015.

5. When the matter came before the Court on that day, there was no appearance by the respondent and no documents had been filed by him. I am satisfied that the proceedings had been properly brought to the attention of the respondent and that he has chosen not to participate.

THE HEARING

1. The applicant relied upon an affidavit sworn by her on 9 February 2015, a Financial Statement sworn on 11 August 2014 and an affidavit of her solicitor (in relation to notification to the respondent of the proceedings) sworn 17 February 2015.

2. The applicant filed with the Court a Balance Sheet, a copy of which had been forwarded to the respondent but to which he had made no response. The Balance Sheet is set out below:

ASSETS
Ownership		Description				Wife/de facto partner's value ($AUD)	Husband/de facto partner's value ($AUD)
1	Joint	Net Sale Proceeds of Suburb D property held in the trust account of B Lawyers				129,000
2	Wife	Motor Vehicle 1 Registration Number …				E 7,500
3	Wife	Funds in Commonwealth Bank BSB … Account Number: …				4,431
4	Wife	Funds in Commonwealth Bank BSB … Account Number: …				35,835
5	Wife	Household contents				10,000
6	Husband	Cash funds (as at May 2013)				118,000
7	Husband	Shares (as at May 2013)				38,000
8	Husband	Household contents (as at May 2013)				18,000
9	Husband	Motor vehicle 2 (as at May 2013)				25,000
Total		$           385,766	$

ADDBACKS
Ownership		Description				Wife/de facto partner's value	Husband/de facto partner's value
10	Husband	Funds (equity) borrowed by husband from mortgage of Suburb D property in June 2013				260,000
11
Total		$           260,000	$                      0

LIABILITIES
Ownership		Description				Wife/de facto partner's value	Husband/de facto partner's value
12	Wife	HECS Debt				9,000
13	Wife	Personal Loan from family				10,000
14	Wife	Credit card debt				3,328
15	Husband	Personal loan (August 2014)				62,000
16	Husband	Credit card debt (July 2014)				30,000
Total		$           114,328	$                      0

SUPERANNUATION
Member		Name of Fund			Type of Interest		Wife/de facto partner's value	Husband/de facto partner's value
17	Wife	First State Superannuation			Accumulation interest		32,933
18	Husband	Superannuation			unknown		100,000
Total		$          132,933	$                      0

NETT TOTAL ASSETS (including Superannuation) $           404,371 $  

DID THE PARTIES LIVE IN A DE-FACTO RELATIONSHIP?

1. The Family Court of Australia has jurisdiction to make orders for property settlement arising out of de facto relationships where the Court is satisfied, pursuant to ss 4AA and 90SB of the Family Law Act 1975 (Cth) (“the Act”) that the parties lived in a de facto relationship, with the relevant geographical and temporal connections to Australia as required by s 90SK being satisfied, and that the relationship came to an end on or after 1 March 2009.

2. The applicant and the respondent met in Country E in 1999 and started living together in Country E in 2001. They did not ever marry.

3. There are two children of the relationship namely F born in 2006 (“F”) and G born in 2008 (“G”).

4. Between 2001, when the parties commenced a de facto relationship, and July 2005, when the applicant became pregnant with their first child, they lived variously in Country E or in Australia. From about 1 February 2005, the respondent resided with the applicant in Australia, until after F’s birth.

5. Thereafter the pattern of the relationship was that the parties lived variously in Country E, where the respondent’s work was based, or in Australia. On occasions the respondent travelled to Country E for periods of two to three months at a time to work and he would then return to Australia for two to three months to be with the family.

6. In 2007, the applicant sponsored the respondent’s application for a visa on the basis that he was her partner. That application was supported by a letter from her setting out the circumstances of their co-habitation and relationship. The application was successful and the respondent was granted a partner visa.

7. The applicant received an inheritance which was used by her for living expenses for the family. Throughout the relationship the respondent was the major financial contributor to the day to day support of the family.

8. The parties purchased a property at C Street, Suburb D (“Suburb D property”). Although the Suburb D property was purchased only in the name of the respondent, the parties received a first home owner’s grant because the applicant was an Australian citizen and had not previously owned property. Representations must have been made to the effect that the Suburb D property was being purchased jointly by them.

9. In all of those circumstances I am satisfied that a de facto relationship existed between the applicant and the respondent.

10. The parties separated in August 2012, but continued to reside for a period of time under the same roof at the Suburb D property.

CONTRIBUTIONS

1. At the commencement of the relationship, the applicant had a motor vehicle valued at about $6,000 and savings of $10,000. In January 2011, she received an inheritance from her grandmother’s estate in the amount of $33,000 that was contributed to the expenses of the family.

2. The applicant does not know what assets the respondent had at the commencement of the relationship. He was a film and television producer who owned his own company.

3. During the course of the relationship, the applicant was primarily responsible for the care of the children. During the periods of approximately two to three months when the respondent returned to Country E to work, she was solely responsible for the care of the children.

4. In about April 2011, the parties purchased the Suburb D property. The property was purchased only in the name of the respondent at his insistence although the applicant contributed through the first home owners’ grant. The applicant attended with the respondent to find the house, and attended at open house inspections when the respondent was overseas. She selected the conveyancing solicitors and liaised with them in respect of the purchase, and conducted the negotiations with the vendor to arrive at the agreed purchase price.

5. The Suburb D property was bought for $607,000. The respondent had funds to apply to the purchase and borrowed $250,000 from Westpac Bank to complete the purchase.

6. On 14 May 2013, the applicant moved with the children to reside in rented accommodation. She asked the respondent if she could stay in the Suburb D property and pay the mortgage repayments so the children could remain living in their home, but the respondent refused to allow her to do that. The respondent leased out the Suburb D property for two years and he retained all of the rents.

7. In May 2013, the respondent, without notice to the applicant, refinanced the mortgage over the Suburb D property and borrowed a further $261,000 which he has retained entirely for his own benefit.

8. In the loan application lodged by the respondent with the Westpac Bank, he represented to the Westpac Bank that he owned assets, including the Suburb D property, worth $929,407.

9. In October 2013, the applicant became aware that the respondent had sold the Suburb D property and she lodged a caveat on the title.

10. The sale was settled in December 2013 and, at that time, the balance of the proceeds of sale of $129,026.36 were held by the conveyancing solicitors in a controlled money account pending the finalisation of these proceedings.

MATTERS TO BE TAKEN INTO ACCOUNT PURSUANT TO SECTION 90SF(3)

1. The applicant is 39 years of age and in good health. The respondent is 50 years of age and as far as the applicant is aware, is in good health.

2. The applicant is employed full time as a primary school teacher and earns approximately $1,300 per week. She receives no financial support from the respondent for the children.

3. As far as the applicant is aware and relying primarily on information provided by the applicant to Westpac Bank, he earns approximately $92,000 per annum.

4. The applicant pays rent for accommodation for herself and the children.

5. The applicant has the full-time care of the two children of the relationship who are now aged nine and six years old.

6. The respondent travels to Australia several times per year for a few weeks at a time, usually during the children’s school holiday periods, and spends a week or so with them by agreement with the applicant. For the rest of the year the respondent resides in Country E and the applicant is solely responsible for the care of the children, including all of their financial needs.

CONCLUSION

1. The applicant seeks an order that the net proceeds of the sale of the Suburb D property of approximately $129,000, which are held in trust by the conveyancing solicitors, be paid to her. The loan application completed by the respondent indicates that, in addition to the sum of $261,000 which he borrowed against the Suburb D property he had, at least at May 2013, $118,000 in cash, $38,000 in shares and $100,000 in superannuation.

2. The amount which the applicant seeks to retain is modest compared to the assets which the respondent retains and it is just and equitable to make the orders which she seeks.

3. Because the respondent did not participate in the proceedings, it is appropriate that he be notified of the Orders and that the operation of the orders be stayed for seven days. The Orders will provide that the funds in the controlled monies account be released to the applicant seven days after the service, by email, of this Judgment and the Orders upon the respondent.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 24 February 2015.

Associate:

Date:  24/02/2015