STRAKOS & STRAKOS

[2013] FamCA 1072

FAMILY COURT OF AUSTRALIA

STRAKOS & STRAKOS [2013] FamCA 1072

FAMILY LAW – Property: undefended

Family Law Act 1975 (Cth)

APPLICANT: Mr Strakos

RESPONDENT: Ms Strakos

FILE NUMBER: HBC 525 of 2013

DATE DELIVERED: 21 October 2013

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Cronin J

HEARING DATE: 21 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Turnbull

SOLICITOR FOR THE APPLICANT: Ogilvie Jennings

THE RESPONDENT: No appearance

Orders

1. That the husband have leave to proceed with the final hearing in the absence of the wife on an undefended basis.

2. That the husband and the wife forthwith do all such acts and things as may be required to sell the property at B Street, Suburb C being the land described in Certificate of Title … Folio ...

3. That in default of agreement as to the selling agent and the method sale including the sale price by 4.00pm on 4 November 2013, the President of the Real Estate Institute of Tasmania or his/her nominee may determine the relevant agent, selling price and method of sale.

4. That upon the sale of the said property, the proceeds be applied as follows:

   (a)To pay the real estate agent’s commission and any advertising or auction expenses;

   (b)       To pay out and discharge any mortgage secured on the property;

   (c)       To pay the legal costs of acting upon the sale including disbursements;

   (d)To pay out all outstanding municipal rates and charges and other outgoings; and

   (e)The balance thereafter being divided as to 60 per cent to the husband and 40 per cent to the wife.

5. That each party otherwise retain, to the exclusion of the other, any interest in any monies at banks, savings, motor vehicles and/or real estate in the possession of that party as at the date of these orders.

6. That each party retain to the exclusion of the other, any interest in any superannuation policy as at the date of these orders.

7. That neither party incur in the name of the other, any liability affecting the interests pursuant to these orders and at all times, keep the other party indemnified from all claims, actions, costs and other expenses in relation to that property.

8. That the husband have liberty to apply in respect of paragraph 1 and 2 of these orders.

9. That the reasons this day be transcribed.

10. That the solicitor for the husband serve a copy of these orders as soon as practicable upon the wife by post to the last known address of the wife and in due course, serve a copy by post of the reasons for judgment this day.

11. That the application filed 24 July 2013 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Strakos & Strakos 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 HOBART

FILE NUMBER: HBC 525 of 2013

Mr Strakos

Applicant

And

Ms Strakos

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Mr Strakos, to whom I shall refer as the husband, on 24 July 2013 seeking orders against Ms Strakos who is, in these reasons, referred to as the wife.  The only orders sought relate to property division.

2. The proceedings were listed before the Registrar on 3 September 2013 at 11 o’clock in the morning for a case assessment conference and the Registrar’s bench sheet notes that there was no appearance by or on behalf of the wife.  The matter was then transferred to a further hearing on 25 September at 9.30 am and, on that day, the Registrar adjourned the matter to a date to be fixed for an undefended hearing.  To that point, the wife had not participated in the proceedings at all.

3. There is, on the file, an affidavit of service of the documents.  That affidavit was filed on 6 August 2013 so the Registrar must have been satisfied that the wife was privy to the information that the husband was going to lead in evidence in relation to the orders that he sought.  The Registrar then made an order for the matter to proceed on an undefended basis subject to any order that the Court might make and there is now an affidavit of the husband which his evidence-in-chief, filed on 10 October 2013.  One of the annexures to that affidavit sets out a letter to the wife indicating that the case was going to proceed and she should get some legal advice.

4. There is also a letter on the Court file from the Registry manager, dated 3 October 2013, addressed to Ms Strakos at the address shown in the proceedings as the matrimonial home, indicating that the matter was to be relisted before me on 21 October, which is today.  I have been told that the husband has had some correspondence with the wife and she has indicated that she is not coming.  In his affidavit, he also sets out the various text messages in September which indicate that he could do what he liked with the property.

5. I am satisfied, in this case, that it is appropriate to proceed in the absence of the wife.  It is clear that if a party does not want to participate in the proceedings, two things will follow.  First, the Court can presume that they have understood what the Court’s function is and what the evidence is that the Court will rely upon and they are not particularly perplexed about it and quite happy for the Court to proceed.  The other is that they cannot complain later if they had an opportunity to be heard.  Every opportunity in this case has been given to the wife.

6. Turning, then, to the substance of the proceedings, the application by the husband seeks order on a final basis that the home at B Street, Suburb C, be sold and after payment out of commissions and expenses, the mortgage and various municipal authority charges, the balance be divided as to 60 per cent to the husband and 40 per cent to the wife.

7. There are other orders sought that each party retain the assets in their respective possessions.

8. As the wife has been served with a copy of the affidavit of the husband filed on 10 October 2013 which purports to support those orders, I can presume that she does not dispute any of the evidence.  On that basis, the evidence that the husband relies upon is as now set out.

9. The parties commenced their relationship in 1999 and were married in 2000 and they separated on 11 September 2007. 

10. There are three children:  D, who is now almost eight;  E, who has just turned nine;  F, who is now coming up to 13.  All of those children live with the husband and spend three nights after school with their mother and on an afternoon on the weekend.  There is no child support provided by the wife for them.  That arrangement seems to have been a consensual arrangement in September 2012 and on the evidence that I have, it would appear that the wife was not coping terribly well with the care of the children and consequently they now live with their father.

11. The marriage was only a period of about seven years and it would appear to have been relatively uneventful.  Both parties started out the relationship with very little, both were working and each was contributing in the best way they could.  It is noticeable that the first child was born in 2001 and thereafter it seems that the wife was predominantly involved in homemaker and parent duties.  The husband was working 80 to 90 hours per week in a supermarket, between 2006 and 2011.  I conclude that the wife was caring for the children in a substantial way during that period of time.

12. During that period of time, the parties managed to buy the property at B Street, Suburb C which is in joint names.  I am told that its current value is $340,000.  It was acquired with the benefit of a National Australia Bank mortgage and the debt on that is now $141,000 so there is therefore approximately $200,000 in equity.  The parties have obviously also acquired things such as motor cars along the way and various small amounts of savings.  I do not propose to take any of those latter things into account on the basis that the parties have been separated for six years and it is hardly a real indication of what they contributed during their relationship.

13. Subsequent to the separation, the wife remained in the B Street, Suburb C home and of late there has been a problem about payment of the various expenses.  In any event, as the husband has now triggered the application to ultimately determine all financial relationships between the parties, it does not seem to me to matter terribly much about what has happened in the last 12 months.

14. Subsequent to the separation in 2007, the husband purchased a property at G Street, Suburb H.  The evidence I have is that it is currently worth $295,000 but there is a National Australia Bank mortgage of $277,000 on it.  The husband says in his evidence that that property was purchased by him and the legal title to the property is in his name but he had made a declaration of trust that the property belongs to the three children.  I proposed to also ignore that property on the basis that the evidence, undefended as it is, shows that the property actually belongs to the children of the marriage.

15. The reality, therefore, is that I am being asked today to divide up about $200,000 in equity in the B Street property. 

16. Before turning to that, it is often helpful to look at the future.  The husband’s income, on any view, is modest.  He has a job as a project officer and, combined with a small amount of money that he seems to collect each week from the rental property, he otherwise earns a very modest income.  That income is sufficiently modest to justify the Centrelink benefits being paid to him.

17. I do not know what the wife’s current financial position is because she has not deigned to give the Court any details and, on that basis, I can only do the best I can. 

18. According to the husband’s evidence, the wife holds a Bachelor of Arts degree but I am not entirely sure what roles she could obtain in the community from that tertiary qualification.  In any event, it seems that she was caring for the children on a full-time basis up until 2012, so the reality is the last 12 months or so would have been the only period of time that she could have had paid employment.  As to the future, she has again not provided the Court with any information to give me any assistance.

19. There is indication, in the affidavit material of the husband – which again, is unchallenged – that the wife has re-partnered.  No details, even the surname of the man with whom she may be living, are provided so, again, I do not know whether or not that relationship is such that there is any financial connection between the wife and that particular man.

20. The significant factor in this case, therefore, for the purposes of section 79(4)(e) is that there is no child support being paid by the wife other than the nominal amount of about $7 per week which seems to reflect the fact that the wife is in receipt of Centrelink benefits and the fact that the husband’s income is modest.

21. I turn, then, back to the issues in dispute.  What the husband here seeks is the sale of the Suburb C property and a division of the net proceeds as to 60 per cent to him and 40 per cent to the wife.  A division between 40 per cent and 60 per cent is very significant in percentage terms but, in reality, in an equity of $200,000, the difference is $40,000.  In circumstances where someone does not pay child support and the recipient’s income is modest, the disparity between 60 per cent and 40 per cent is only marginal.

22. The first step in the process, then, is to consider whether or not it is just and equitable to make an order at all.  In this case, it is important to make an order, let alone just and equitable, because this property is in the joint names of the parties.  Sooner or later, somebody has to do something about that.  It would appear on the evidence that the husband wants to resolve the matters finally and, at the same time, the wife does not seem to be able to manage to pay the commitments to keep the house in any event.  In those circumstances, I am satisfied it is just and equitable to make an order.

23. The process, then, requires the Court to consider the matters set out in section 79(4) of the Act, all of those matters directed towards the questions of contribution and, in this case, the husband’s evidence is that he contributed significantly through his income and the wife contributed significantly through her role as a homemaker and parent.  I do not know much about the period between 2007 and 2012 but I have concluded that as the wife has not challenged any of the husband’s evidence, she would not disagree with what he was going to say anyway.  I find that on any view, at least up until the time of separation, the parties’ contributions were equal.  Subsequent to 2007, up until about 2012, the husband seemed to be providing support for the children and the wife, and the wife had the benefit of the home.  Subsequent to 2012, the husband has been financially responsible solely for the support of the children.

24. It would appear that, on that basis, that picture will continue, particularly having regard to the absence of the wife today and I can conclude that it is likely that she will not contribute towards the financial support of the children into the future.  On that basis, the husband is entitled to an adjustment in his favour.  The disparity between the proposed outcomes is looking at a pool of about $200,000 and a division on that basis of the net proceeds of the sale is just and equitable in the circumstances.  I propose, in those circumstances, to make the orders set out in paragraph 1 and 2 of the orders sought by the husband.

25. The husband also deposes to the fact that he has about $89,000 in superannuation and the wife has about $20,000.  That is a huge gap in monetary terms as well as in percentage terms but, again, the wife is not here to argue about whether that should be divided.  The husband simply seeks an order that each party retain what they have and therefore there would be a significant gulf between the parties in that regard.  It would seem, on any view, that the superannuation came about as a result of the husband having worked during the period of time that the parties were together and since that time, I am therefore not entirely sure what the equity in the superannuation membership entitlement was at the time of separation but again, it does not seem to matter in this particular case.  The parties are still a long way from retirement age and on that basis the reality is that the superannuation is of little benefit to them as they currently stand.  The wife has tertiary qualifications and therefore with a base of about $20,000 in her current superannuation she presumably has sufficient years ahead of her to enable that fund to grow.  I see no reason in the circumstances to make any order in relation to the superannuation other than the parties and the wife retaining the superannuation interests that they have.

26. As I also indicated, there were other assets in the list of assets and liabilities of the parties.  Each of them seems to have a small amount of savings and a motor car, and for the reasons I have earlier mentioned, I do not intend to take those into account but, even if I did, they would have very little impact on the outcome.  In my view, it is just and equitable to make the orders set out in paragraph 3 and 4.

27. There will be liberty to apply in respect of paragraph 1 of the orders.  I will otherwise dismiss the application filed 24 July 2013 and I will direct the solicitor for the husband to serve a copy of the order on the wife as soon as practicable and the reasons for judgment in due course.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 October 2013.

Associate:

Date:  6 February 2014