SUDONO & SUDONO

[2010] FamCA 54

FAMILY COURT OF AUSTRALIA

SUDONO & SUDONO [2010] FamCA 54

FAMILY LAW – PROPERTY – interim property settlement – whether such an order under s79(2) is just and equitable and appropriate in the circumstances

Family Law Act 1975 (Cth)

Strahan & Strahan (2009) FamCAFC 166

APPLICANT: Ms Sudono

RESPONDENT: Mr Sudono

FILE NUMBER: DGC 4574 of 2007

DATE DELIVERED: 20 January 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 19 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Dickson

SOLICITOR FOR THE APPLICANT: Ballards, Solicitors

COUNSEL FOR THE RESPONDENT: Mr M A Belmar

SOLICITOR FOR THE RESPONDENT: Kabo Lawyers

Orders

1. That by way of interim property settlement the members of the firm of Randles Cooper & Co. disburse to the wife’s solicitors for payment to the wife the sum of $500,000.00 (“the amount”) from the funds held by the firm in trust for the parties referred to in Exhibit 1 upon the following terms and conditions on or before 5.00pm 29 January 2010:

   (a)The wife apply the amount solely for the purposes of the purchase of real estate (“the real estate”) in her sole name in Carnegie, Clayton, East Melbourne, Mount Waverley or in any other suburb of the metropolitan area of Melbourne.

   (b)The wife may apply part of the amount in meeting stamp duty and legal costs arising out of the purchase of the real estate.

2. That the wife cause the husband’s solicitors to be furnished as soon as possible with copies of the agreement for purchase of the real estate and the settlement sheet in relation to completion of such purchase.

3. That the wife is restrained from selling, transferring or encumbering the real estate other than with the written consent of the husband or by further order.

4. That the wife may occupy the real estate and is restrained from permitting any other person to occupy it as a residence other than with the written consent of the husband or by further order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGC4574 of 2007

MS SUDONO

Applicant

And

MR SUDONO

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings an order for interim property settlement has been sought by the wife pursuant to her Application in a Case filed 3 December 2009.  The amount sought is $500,000.00.

2. The husband has sought an order that the wife’s application be dismissed.

3. The parties cohabited for a period of approximately 21 years which commenced on their marriage which took place in 1986.  Cohabitation ceased upon their separation on 14 September 2007.

4. I am unaware as to whether or not the marriage has subsequently been dissolved by a divorce order.

5. There are no children of the marriage.

6. The wife resides in Victoria.

7. The husband resides in Indonesia.

8. On 11 August 2008, directions were made by consent on 16 November 2007 in the Federal Magistrates Court.  Interim injunctions were granted restraining the husband from selling, transferring or encumbering any real or personal property within the Commonwealth of Australia which is registered in his name, save with the written consent of the wife.

9. It is well established in property settlement cases that findings are required to be made in relation to the following:

   a)the property of the parties;

   b)their respective direct and indirect contributions including the contribution by way of home-maker and/or parent;

   c)relevant matters pursuant to s 75(2);  and

   d)consideration of orders that are just and equitable.

10. For the purpose of interim property settlement proceedings, the Full Court in Strahan by its judgment delivered on 14 September 2009[1] reviewed past authorities.  The guidelines provided by the Full Court were to emphasise the need to give reasons for judgment that reflect the power that is otherwise provided in s 79 and to consider such order, if any, that should be made on the basis of the orders not only being just and equitable, but also ‘appropriate’, with the implicit requirement provided in the earlier Full Court judgments for caution to be exercised.  The reason being that these are interim proceedings.  Consequently, the full range of property that falls for consideration will no doubt be the subject of the substantive final hearing, not to mention that the evidence is likely to be more extensive and subject to testing which, by the very nature of an interim hearing cannot take place.

    [1] Strahan & Strahan (2009) FamCAFC 166

11. The matter proceeded before me on the basis of the affidavit evidence of the wife reflected in her Affidavits sworn on 1 December 2009 and 18 January 2010 supplemented by her Financial Statement sworn 3 December 2009.  No evidence was given by the husband.  The only evidence sought to be relied upon by the husband’s counsel is an Affidavit of Confia Kabo sworn 12 January 2010.

12. I did refer the husband’s counsel to an earlier Financial Statement of the husband sworn 30 April 2008, which I have read.

13. I was not referred to any other affidavit or financial statement which brought the husband’s financial position up to date.

14. No application for adjournment was made on behalf of the husband.

15. Consequently, the matter proceeded in accordance with the conventional practice and procedure, namely by way of submissions without any party being called for cross-examination.

Issues

1. The property of the parties is set out in the document described as ‘balance sheet’ filed 10 August 2009, marked Exhibit 1.  There are controversial aspects of Exhibit 1 reflected in alleged ‘add-backs’, as well as certain matters claimed to be representative of liabilities of the husband set forth in items 19 and 20.

2. As was quite properly recognised by counsel for the parties, those are matters which cannot be explored on an interim hearing, but rather must be tested, if still relevant, at the final hearing.  Consequently, it appears on the basis of Exhibit 1 that the range of the net property of the parties is between approximately $1.3 million to $1.4 million, subject to the controversial items of add-backs and liabilities to which I have referred.

3. The evidence in relation to contributions of the parties was limited.  However, it appears, at least on an interim basis, that the substantive financial contributions were made by the husband.  The wife, for her part, made financial contributions as well, including the purchase in her name of real estate in the south-east suburbs which the wife alleges was subsequently sold without her consent, as well as some banking transactions.  In addition, evidence was also given by the wife, albeit limited, in relation to contributions as a homemaker.

4. With regard to relevant s 75(2) matters the husband continues to live in Indonesia.   The wife resides in Australia.  There was no evidence to suggest that either of the parties has anything other than good health.  The husband has access to significant property in Indonesia.  The husband’s lifestyle does not appear to have been affected by the separation of the parties.

5. The wife, for her part, has been living with her relatives.  The wife is unemployed and her income is negligible.  The wife does not have financial resources other than the indirect financial resource provided by the nature of her living with relatives.

6. The substantial property of the parties in Australia is represented by funds held in trust by Randles Cooper & Co.  The wife’s bank account, subsequently amended in the wife’s affidavit evidence due to typographical errors, reflects amounts as set forth in item 2.  On the assumption that such evidence given by the wife by way of amendment is accurate, then of course it follows that the net property of the parties is reduced, although not to a very large extent, given that the balance of the property is substantial on a relative basis.

Conclusion

1. I have determined that an interim property settlement order will be made in favour of the wife as sought by her upon terms and conditions for the following reasons.

2. The net property of the parties is described in Exhibit 1, subject to the qualification to which reference has been made.  It amounts to approximately $1.3 million, if not a greater sum, subject to the controversial issues of add-backs and liabilities.   Those are matters for determination on the final hearing.  That approach was accepted by counsel for the parties.

3. Each of the parties have made contributions, direct and indirect, to property.  The evidence is scant.  However, I am able to find that the husband made the major financial contributions.  The wife made a financial contribution by the purchase of real estate in her name in south-east Melbourne, Victoria, as well as in relation to banking transactions.  The evidence does not disclose the sources of funds for those purposes. The wife also made a contribution as a homemaker by carrying out domestic work.

4. I find that the husband’s contributions exceeded those of the wife.  However, I emphasise that the evidence is limited.  At the final hearing other findings may be made.

5. Relevant s 75(2) matters include the following.  The husband continues to live in Indonesia.  The husband has access to property of substance and financial resources in that country and his lifestyle does not appear to have been compromised post-separation of the parties.  By contrast, the wife’s financial position has significantly deteriorated.  The wife currently has limited funds.  The wife has been living with relatives as she is unable to afford independent accommodation.  The wife is not in employment.  The wife has aspirations to improve her financial position by undertaking and completing a beauty therapy course.  The wife has completed an English language course which should assist her in that regard.

6. The Full Court has emphasised that for the purpose of possible interim property settlement orders, caution should be exercised with consideration of such possible orders as being ‘appropriate’, rather than applying a standard of ‘compelling’.  In that regard I follow the guidelines in Strahan.[2]  The wife seeks $500,000.00 for the purchase by her of suitable real estate or alternatively investment to produce income.  The latter was not the subject of submissions.  No doubt, the terms and conditions of such possible investment would have been otherwise outlined by counsel.  I accept the evidence of potential real estate for purchase by the wife.  No evidence was given by the husband in relation to that matter or indeed any other relevant matter as earlier referred to by me.

   [2] Ibid.

7. I have also taken into account diminution of the property of the parties as a matter of prejudice to the husband.  Consequently, I will impose terms and conditions in relation to the purchase by the wife of real estate so as to preserve the property of the parties.  The funds will be derived from the funds held by the firm of Randles Cooper & Co., in trust, as referred to in Exhibit 1.  The purchase of real estate by the wife will therefore substitute a fixed asset for a liquid asset.  The wife will be restrained from purchasing it, other than in her sole name and otherwise from selling, transferring or encumbering it subject to the written consent of the husband or further order.  Occupancy as a residence will be restricted to the wife.  The real estate may have the potential for appreciation.  The wife will be able to expend part of such funds to meet necessary expenses of purchase.

1. Consequently, I include that such orders will not only be just and equitable, pursuant to s 79, but also appropriate.

2. Sealed copies of those orders will now be distributed and once the transcript of the judgment becomes available and is checked, and of course copies will be sent to parties’ legal representatives.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate: 

Date:  2 February 2010