TAHEMA & TAHEMA

[2019] FCCA 3341

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAHEMA & TAHEMA [2019] FCCA 3341

Catchwords:
FAMILY LAW – Undefended property hearing – property orders made.

Legislation: Family Law Act 1975 (Cth), ss.79(2), 75(2)

Cases cited:

Lotta & Lotta [2017] FamCA 50

Applicant: MS TAHEMA

Respondent: MR TAHEMA

File Number: PAC 5860 of 2016

Judgment of: Judge Newbrun

Hearing date: 9 May 2019

Date of Last Submission: 10 May 2019

Delivered at: Parramatta

Delivered on: 10 May 2019

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondent: Mr Taylor

ORDERS

A Street, Suburb B Property

1. That within thirty (30) days of the date of these Orders the parties do all acts and sign all documents as are necessary to transfer to the Respondent Husband at the expense of the Husband all of the Wife’s right, title and interest in the property situate at A Street, Suburb B in the State of Queensland and more particularly described as Lot … Survey Plan …, Title Reference … (“the A Street, Suburb B property”).

Street C, Suburb B

1. That within thirty (30) days of the of the date of these Orders the parties do all acts and sign all documents as are necessary to transfer to the Respondent Husband at the expense of the Husband all of the Wife’s right, title and interest in the property situate at Street C, Suburb B in the State of Queensland and more particularly described as Lot … on SP …, Title Reference … (“the Street C, Suburb B property”).

2. Simultaneous with the transfers provided for in Orders 1 and 2 hereof:

   (a)The Husband do all acts and things necessary to refinance the mortgage registered over both the A Street, Suburb B property and the Street C, Suburb B property described as mortgage number … to the National Australia Bank into his sole name; and

   (b)The Husband forthwith assumes all liability for and indemnifies the Wife against all apportionable rates, taxes and outgoings of or with respect to both the A Street, Suburb B property and the Street C, Suburb B property of whatsoever nature and kind.

3. Pending the transfers provided for in Orders 1 and 2 hereof, the Husband shall have the sole right to exclusive use and occupancy of both the A Street, Suburb B property and the Street C, Suburb B property.

4. That within thirty (30) days from the date of these Orders (subject to Order 17 hereof) the Respondent husband pay to the Applicant Wife the sum of fifty nine thousand six hundred dollars ($59,600.00) by way of bank cheque made payable to the Applicant Wife or as otherwise directed by her in writing within twenty one days from the date hereof.

General

1. That unless otherwise specified in these Order except for the purposes of enforcing payment of any money due under these or any subsequent Orders:

   (a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles.

   (b)Monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held.

   (c)Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.

   (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 this Order.

   (e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

2. That the Registrar of the Brisbane Registry of this Court be appointed pursuant to Section 106A of the Family Law Act 1975 to sign any document or documents on behalf of the Applicant Wife and to do all acts and things to give validity to any of the Orders contained herein.

3. For the Registrar to act on the powers provided by Order 7 of these Orders it will be sufficient proof that the Respondent Husband provide to the Registrar an Affidavit deposing to the non-appearance of the Applicant Wife at the final hearing of the proceedings the subject of these Orders such affidavit not being required to be served upon the Applicant Wife her whereabouts unknown as at the date of these Orders.

4. That all pending Applications be dismissed.

5. The items of sentimental value referred to in paragraph 57 of the wife’s Affidavit filed 12 December 2016 shall be made available by the husband for the wife’s collection from Street C, Suburb B with the husband to forthwith take all necessary steps to contact the wife in relation to this Order.

NOTATION:

Pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001, the Court or a Registrar may vary or set aside a judgment or Order after it has been entered if it was made in the absence of a party. Any application by the wife to vary or set aside the above Orders shall be made within 14 days of being notified of today’s Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5860 of 2016

MS TAHEMA

Applicant

And

MR TAHEMA

Respondent

REASONS FOR JUDGMENT

1. So in this matter of Tahema & Tahema, these are reasons for judgment relating to an undefended property hearing held before the Court on 9 May 2019, relating to property proceedings.  The husband appeared, legally represented by his solicitor, Mr Taylor.  The wife failed to appear.  She had previously engaged with Mr Griffith, solicitor.  The Court is satisfied that the wife has had notice of these proceedings.

2. In relation to the property proceedings, the husband sought orders as set out in his Case Outline.  The wife’s property proposals were set out in her Case Outline, filed 4 November 2018.  The Court has had regard to all the wife’s Affidavits and Financial Statement filed in these proceedings in relation to her proposed property orders.  The Court has had regard to her Case Outline, filed 4 November 2018, and has not overlooked her proposed property orders set out in her Initiating Application, filed 12 December 2016.

3. In relation to the husband, the Court has had regard to his trial Affidavit and annexures, Financial Statement and case outline. 

Evidence

1. Unless otherwise indicated in these reasons, in circumstances where the wife has failed to attend the final hearing of these property proceedings and has thereby deprived the husband of cross-examining the wife in relation to her Affidavit and other material, where the husband’s evidence is in conflict with the wife’s evidence, the Court prefers the husband’s evidence.

2. The Court finds that the parties commenced cohabitation in about February 2010.

3. The parties married on … 2013.  The Court finds the parties separated on about 18 April 2014 and accepts the husband’s assertions and contentions in this regard.  They were divorced on 3 October 2016.

Legal Principles:  Property

1. The Court refers to the decision of Foster J in Lotta & Lotta (2017) FamCA 50 at paragraphs 281 to 290 inclusive in relation to relevant legal principle to be applied by the Court when determining property adjustment proceedings.

The Property Pool

1. At paragraph 19 of the husband’s trial Affidavit, he sets out his contentions and assertions in relation to the current property pool.

2. The Court adopts the husband’s values in relation to the various items of property, including assets, liabilities and superannuation as asserted by him in paragraph 19 but with the following amendments:

   a)the husband’s Motor Vehicle D should have a value of $12,200;

   b)in the parties’ joint balance sheet, filed 2 November 2018, this motor vehicle was stated to have a value of $12,200, and the Court notes that, in the husband’s Financial Statement, filed 2 February 2017, this vehicle was stated to have a value of $16,000.  No explanation is given by the husband as to how this vehicle has dropped in value to an alleged $2,015;

   c)the wife’s 2009 motor vehicle should have a value of $2,000;  this accords with the wife’s Financial Statement, filed 12 December 2016, being an admission against interest;

   d)the wife’s household contents should have a value of $3000, again being in accordance with the wife’s Financial Statement, filed 12 December 2016;

   e)in relation to liabilities asserted by the husband in paragraph 19 of his trial Affidavit, the husband’s contended ANZ Frequent Flyer debt of $10,971 should be removed from the parties’ liabilities as there is no apparent evidentiary basis for such contended liability;  in the notes to the joint balance sheet, filed 2 November 2018, item 37, it is stated that this ANZ Frequent Flyer debt was as at 15 October 2018, with the wife contending it was a post-separation debt.

3. The Court observes that the wife’s alleged addbacks contained in the joint Balance Sheet, filed 2 November 2018, appear to have no evidentiary support on the material before the Court.

4. The Court finds the parties’ assets and liabilities to be $794,672 for the parties’ net non-superannuation assets and the Court finds that the husband’s superannuation entitlement is $133,847.  The total asset pool is about $928,519.

Section 79(2) of the Family Law Act 1975 (Cth)

1. The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity. 

Contributions

1. The Court adopts a two-pool approach; there is a paucity of evidence relating to the history of the husband’s superannuation. 

Pool A:  Non-Superannuation Assets

1. The parties had a fairly short relationship over about four years.

2. Prior to the cohabitation, the husband had inherited about $1.5 million.  At cohabitation, the husband had a property at Town E, shares in a share portfolio received as part of the inheritance from his late father, a car, furniture, and a business which he had been operating since 1987.

3. In about mid-2010, quite shortly after the commencement of cohabitation, the wife inherited about $328,000.  She had earlier, in about 2008, received an inheritance of about $50,000 from a cousin.  It appears the wife purchased the property at Suburb F with these proceeds; she paid $250,000 for this property, utilising a deposit of $200,000 and borrowing $50,000 from a bank.

4. In about 2011, the wife started working for the husband a few days each week and for which she was paid a salary by the husband of about $500 per week.  The wife was permitted by the husband to use two spare rooms of his business for her business.  She operated this business from these two rooms between 2011 up until August 2014, rent free.

5. During the parties’ relationship, they maintained separate bank accounts.  The wife had complete access to the husband’s bank account and paid his bills through the husband’s business account.  The husband states that the wife may have contributed to some of these bills but he is unsure of the details.  The parties shared payment of the grocery bill.

6. At paragraph 24 of the wife’s Affidavit, filed 12 December 2016, she states that, from the net sale proceeds of her property at Suburb F, she utilised for the parties’ day to day living expenses.  It is not entirely clear from the material before the Court as to what were the precise net sale proceeds.  Paragraph 24 of the wife’s said Affidavit suggests that she may have been left with net proceeds of about $250,000, noting that she had previously borrowed $50,000 from the bank.  In this context, the husband, at paragraph 191 of his trial Affidavit, states that between March 2013 and June 2014, the wife redrew about $49,000 on her home loan and he did share in the benefits of these monies.

7. The husband states that, in August 2014, some four months after separation, the wife had $178,000 in her bank account; the difference between the wife’s apparent net $250,000 from her sale of her former property at Suburb F and the sum of $178,000 is the sum of $72,000.  The Court finds, on the balance of probabilities, that that sum of about $72,000 was probably used for the parties’ day to day living expenses.

8. The Court finds that the wife, as discussed above, through these contributions to the parties’ day to day living expenses, probably made indirect financial contributions towards maintenance of the husband’s assets in existence at the time that such expenses were paid.

9. In about 2014, the husband sold his Town E property.  Inter alia, he utilised about $60,000 from the net sale proceeds for the parties’ day to day living expenses. 

10. In June 2015, the property at Street C, Suburb B was purchased in the parties’ joint names, however, the husband contributed the purchase costs.  The wife purchased a spa for this property in the sum of $8,000.

11. In July of 2015, the property at Street A, Suburb B was purchased in the parties’ joint names; however, the husband contributed the purchase costs.  The wife purchased an air-conditioning unit for this property in the sum of about $4,500. 

12. The husband has paid the outgoings for these two properties of the parties.

13. The Court finds the parties’ homemaker contributions to be about equal.

14. Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to non-superannuation assets as at trial date to be 10 per cent to the wife and 90 per cent to the husband.  This results in a disparity of about $715,205 in favour of the husband regarding non-superannuation assets. 

Pool A:  Section 75(2) of the Family Law Act 1975 (Cth)

1. The husband is aged almost 61 years and the wife is 42 years.

2. The husband has ulcerative colitis but there is no medical evidence that he has thereby suffered a decrease in his work capacity.  He usually works as a health care worker.

3. The wife is on a disability pension and receives about $502 per week.  There is no evidence before the Court as to why she is on such a pension.  The wife asserts she does not work.  She asserts that she has symptoms from her Crohn’s disease, which prevents her from working.  She asserts that she has chronic back pain from a 2005 back injury.  It appears that both these conditions of the wife pre-existed the parties’ relationship.  The Court observes that the wife did carry out part-time work for the husband’s business and did conduct her own business for a period.  Accordingly, it is not clear to the Court that the wife is incapable of carrying out any part-time work by reference to the very limited medical evidence that she has placed before the Court.  Nevertheless, the Court would assess the husband’s earning capacity as being greater than the wife’s earning capacity on the balance of probabilities.

4. Under section 75(2)(o), the Court takes into account, in favour of the husband, payments that he made to the wife (apart from wages paid to her) as referred to in paragraph 76 of his trial affidavit, amounting to about $59,000.

5. On the evidence before the Court, the wife’s Kennon argument is not made out.  She has not established that any relevant contributions she made were made more arduous by reason of such alleged family violence and, in any event, the Court is not satisfied that such alleged family violence has occurred.

6. The Court takes into account that the wife lived in the Street C, Suburb B property rent free post-separation until about September 2015. 

7. Taking into account the above matters, there should be an adjustment in favour of the husband of 2.5 per cent.  This results in an adjusted contributions finding for non-superannuation assets of 92.5 per cent in favour of the husband and 7.5 per cent in favour of the wife.

Pool B:  Superannuation Assets

1. There is a paucity of evidence relating to the history of the husband’s superannuation entitlement.

2. There is no evidence relating to the value of the husband’s superannuation entitlement as at commencement of cohabitation or separation.  There is no evidence of direct financial contributions made by the wife to the husband’s superannuation entitlement either during the relationship or post-separation to date.

3. There is no persuasive evidence of any significant, indirect contribution made by the wife to the husband’s superannuation entitlement either during the relationship or post-separation to date.  In any event, even if there could be found to exist some indirect contribution by the wife, it is unquantifiable by reason of the paucity of evidence before the Court.

4. The Court finds that the wife made no relevant contribution to the husband’s superannuation entitlement.

Pool B:  Section 75(2)

1. The wife has no superannuation.

2. The Court refers to its discussion above, relating to section 75(2) under pool A.

3. The wife is in her early 40s. Again, it is not clear to the Court that the wife has no income earning capacity. There is no call for an adjustment under section 75(2) by reason of the husband’s superannuation entitlement.

Justice and Equity

1. Pursuant to the Court’s contribution assessment, the husband should be left with assets representing, in value, 92.5 per cent of the net non-superannuation assets, being $735,071 (92.5 per cent of $794,672). He should retain his superannuation asset.

2. The wife will retain her car, minimal bank account balances, her household contents and assets representing 7.5 per cent of the net non-superannuation assets, $59,600 (7.5 per cent of $794,672).

3. The wife will be able to pay off personal debt (not found by the Court to be matrimonial debt) with the above cash sum of $59,600.  She will continue to receive her pension.  Again, the Court is not satisfied that she has no work capacity.

4. The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties. 

5. The Court is of the view that no costs order should be made in favour of the husband.

6. In all the circumstances, including the somewhat narrow scope of this one-day, undefended hearing, there should be no costs order made in the husband’s favour against the wife.

7. The Court is of the view, again, in all the circumstances, it would not be just to make such an order.

8. I make a notation as follows to the Court’s judgment: pursuant to rule 16.05 of this Court’s rules, the Court or a Registrar may vary or set aside a judgment or order after it has been entered if it was made in the absence of a party. Any application by the wife to vary or set aside the Court’s above orders shall be made within 14 days of being notified of today’s orders.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 2 December 2019