Voss and Voss
[2012] FMCAfam 908
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VOSS & VOSS | [2012] FMCAfam 908 |
| FAMILY LAW – Property – undefended proceedings – husband in Greece – small asset pool in Australia – husband obtained funds and expended same in manner unknown to the wife. |
| Family Law Act 1975 (Cth), ss.75(2), 117 |
| Applicant: | MS VOSS |
| Respondent: | MR VOSS |
| File Number: | SYC 7657 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 24 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Snelling |
| Solicitors for the Applicant: | Jordan Antonopoulos & Co |
| The Respondent: | No appearance |
THE COURT ORDERS THAT:
The Applicant Wife is solely entitled to all the monies standing in the Trust Account of the solicitors firm Jordan Antonopoulos & Co Pty Ltd trading as Jordan Antonopoulos & Co.
Jordon Antonopoulos & Co Pty Ltd is hereby irrevocably authorised and irrevocably directed to pay the said monies in the Trust Account to the Applicant Wife absolutely as she shall direct Jordan Antonopoulos & Co Pty Ltd in writing.
Jordan Antonopoulos & Co Pty Ltd is hereby fully released from any obligation to hold onto the abovementioned monies in Trust and these Orders are a full and sufficient discharge of Jordan Antonopoulos & Co Pty Ltd’s obligations to the parties with respect to Jordan Antonopoulos & Co Pty Ltd’s Trust Account obligations and the Legal Profession Regulation 2005 (NSW) and the Legal Profession Act 2004 (NSW).
The Applicant Wife retain to the exclusion of the Respondent Husband all her right, title and interest in any property in her sole name or possession at the date hereof including but not limited to any real property, bank accounts, business, shares, motor vehicles, superannuation, jewellery, furniture and personal possessions and indemnify and keep indemnified the Respondent Husband in respect of any liabilities in her name at the date hereof.
The Respondent Husband pay the Applicant Wife’s costs in part of these proceedings fixed in the sum of $10,000.
There is liberty to the Applicant Wife to apply for further property distribution and the payment of costs to her in the event she is able to establish that the Respondent Husband has assets real and/or personal outside the jurisdiction of the Commonwealth of Australia in relation to which the Court declares this day that she has an entitlement.
IT IS NOTED that publication of this judgment under the pseudonym Voss & Voss is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7657 of 2011
| MS VOSS |
Applicant
And
| MR VOSS |
Respondent
REASONS FOR JUDGMENT
These proceedings commenced with the Wife filing an initiating application on 19 December 2011. The orders sought by the Wife are as contained in annexure A to that application. The Wife, in support of her application, relies upon affidavits sworn by her on 16 December 2011, 19 July 2012 and 22 August 2012. Further, the Wife relies upon a financial statement sworn by her on 16 December 2011.
The Husband was served with the Wife’s initiating application and supporting affidavit and financial statement, and had Solicitors acting on his behalf when the matter first came before the Court on 13 March 2012 before Sexton FM. The matter was adjourned on that day to 23 April 2012, where again the Husband was represented by his Solicitor. The Court noted on the first return date of the matter, being 13 March 2012, that an issue may arise as to whether the Husband owns a property in Greece. Orders made on that day provided for the Husband to file and serve his response, affidavit in support and financial statement within seven days. In the later proceeding of 23 April 2012, the matter was adjourned to 10 August 2012 for an undefended hearing, given that the Husband had failed to comply with the earlier orders of the Court. The Court noted, on 23 April 2012, that the Husband’s Solicitor would endeavour to obtain instructions to enable him to file responding documents. Subsequently, the Solicitors acting on behalf of the Husband filed a notice of withdrawal on 30 July 2012. No material has ever been filed in the proceedings by the Husband and the matter has proceeded undefended this day. When the matter was last listed before Sexton FM on 16 August 2012, there was no appearance by the Husband and the matter was adjourned to this day. Sexton FM made further orders for service upon the Husband both to an address in New South Wales, and an address in Greece. Further, that service order provided that the Husband be telephoned. The Wife was required to file an affidavit verifying compliance with the orders of the Court as to service, and she has done so in the affidavit sworn by her on 22 August 2012. I am satisfied that there has been due compliance with the orders of Sexton FM as to service. The Wife, in her affidavit sworn 22 August 2012 and in paragraph 7 therein, deposed to telephoning the Husband and having a conversation with him to the effect that when she advised him of the Court hearing this day, he said “you slut, go to hell” and hung up.
Asset pool
The current assets of the parties are:
(1)monies held in trust on behalf of the parties in the sum of $109,300.87, together with interest, and being the proceeds of sale of the parties’ real property, which was an investment property situate at Property G in the State of New South Wales;
(2)the Wife’s furniture and furnishings valued at $500; and
(3)a unit purchased by the Husband in Greece, as alleged by the Wife, with a value unknown, and no details provided in respect thereof by the Husband.
The parties have no liabilities.
History and contributions
The Wife was born [in] 1960 in Sydney. She is now aged 51 years. The Husband was born in Greece [in] 1958, and he is now aged 54 years. The parties married [in] 1990 and commenced their cohabitation at that time. Their first child [X] was born [in] 1993 and he is now aged 19 years. The parties’ daughter [Y] was born [in] 1994 and she is now aged 18 years. She remains a school student in the currency of this year. Both the children and the Wife reside in the home of the maternal grandmother, the maternal grandfather having now passed away.
At the date of the parties’ marriage, neither of them had assets of any real value. During the marriage, the Husband worked and the Wife provided the day to day care of the children. The Wife had the major responsibility for homemaker duties, and the Husband controlled the finances of the family. Following the parties’ marriage, they lived in a unit at [M] for some two years, which was owned by the Wife’s parents. During that period, they paid no rent nor any of the outgoings.
After the parties left [M], they lived at [omitted] for a couple of months before returning to Sydney. They then travelled to Greece for five months and on their return took up residence in the Wife’s parents’ home for nearly two years. Subsequently, they resided in a property at Property B in the State of New South Wales which was a property owned by the Wife’s parents. They remained living there for the duration of their marriage and being a period between 1993 and April 2007. During this time, the parties paid only for the outgoings in respect of the home and no rental sum was paid to the Wife’s parents.
In January 1993, the Husband and Wife purchased the property at Property G in the State of New South Wales for a purchase price of approximately $141,000. The parties never resided in the property, and it was used as an investment property and tenanted. Assistance for the purchase had come from the Wife’s parents, in the sum of a $6,000 loan, of which the parties repaid $2,000 with the balance being forgiven. Otherwise the parties applied their savings of approximately $8,000 and borrowings obtained by them to the purchase.
In or about December 2003, or early January 2004, the parties approached the National Australia Bank for a loan. The Wife understood them to be borrowing approximately $10,000 for renovations to Property B. In fact, the parties’ borrowings were in the sum of $210,000 secured over their investment property. A net balance of $208,548.85 was deposited into a joint account of the parties’ on 9 February 2004, with subsequent withdrawals made from that account in the sums of $100,000 and $15,000, both withdrawals being made by the Husband. At around the same time, the Husband left for Greece and stayed there for many months. He went to [location omitted]. Whilst over there, the Husband withdrew further sums from the cash management account. The Wife was never told by the Husband as to his application of the funds withdrawn by him. The Wife believes the funds were utilised by the Husband to purchase a property in Greece in late 2004, or possibly early 2005.
During the course of the marriage the parties often had arguments and the Wife alleges the Husband would often threaten her. On 6 April 2007, the Wife was assaulted by the Husband and the police were called. On that day, the Wife left the home at Property B and moved in with her parents at [address omitted]. On the following day, the Husband assaulted the Wife’s parents and he was subsequently taken into custody by police. The Wife has, since 6 April 2007, continued to reside with her parents and now mother, at [address omitted], as have the two children of the marriage. Following their separation, the Husband continued to reside, until his departure to Greece, in the former matrimonial home, which was the property owned by the Wife’s parents, but occupied by the parties at Property B. Since separation, the Wife has been in receipt of Centrelink benefits, and she currently receives the sum of $263 each week. She pays her mother $150 board a fortnight, and her mother pays all outgoings with respect to the family’s occupation of the grandmother’s home.
Section 75(2) of the Family Law Act 1975 (Cth) matters
The Wife is not employed. She has no qualifications or experience sufficient to enable her to obtain employment. She has had the support of the parties’ two children since 2007, when the Husband departed the Commonwealth of Australia. He has not had any communication with his son since that time, and has had only occasional contact with the parties’ daughter. The Husband has fallen into arrears of child support payments being in excess of $7,000 and the Wife has not been assisted, to any real degree, by the Husband in the support of the children.
The Husband’s current financial circumstances are unknown to the Wife and to the Court. He is residing in Greece, and on 19 February 2004 he withdrew $115,000 of monies borrowed against the parties’ investment property and has failed to account for same to the Wife. The Wife has no income, no superannuation of any value and no earning capacity.
The Wife has been assisted financially by her parents both during the marriage and subsequent to the separation. The Husband has not filed any documents in the proceedings, and nor has he provided disclosure or discovery in respect of any property and/or money in his possession and control. The Wife alleges that he has purchased real property in Greece with matrimonial funds but she has been unable to secure the husband’s participation in the proceedings. They have been undefended.
The only significant asset available to the Wife is the money retained in the Wife’s Solicitor’s trust account and those monies shall be paid out to the Wife forthwith. The Wife sought, in her application, that the Husband pay to her an additional sum of $100,000. It is not possible to make an order in those terms given the evidence that is before the Court this day. Nevertheless, it is possible to make an order such that the Wife can return to this Court if she is able to establish that there is real property held by the Husband in Greece in relation to which the Court declares she has a certain interest, in that the application of a sum of $115,000 of the parties’ funds is unknown to the Wife and the Court.
It would not be just and equitable to make an order simply providing for the Wife to have the totality of the monies in the trust account, and otherwise conclude the proceedings without the Wife having an ability to approach the Court hereafter in the event that evidence of other assets held by the husband becomes available to her. The Court cannot be satisfied as to the extent of the property of the parties at the present time.
The Court was asked to make an order for costs in respect of some part of the proceedings. The Court was asked to fix an amount of $10,000 being a sum due for work done that would not have otherwise been required to be done, had the Husband participated in the proceedings. The Court looks to the matters contained in s.117 of the Family Law Act 1975 (Cth). Certainly, the orders made and work required to be done consequent to those orders made on 16 August 2012 have cost the Wife further funds. The need for a second duty date on 23 April 2012 was occasioned by the Husband’s failure to properly instruct his Solicitor and comply with earlier orders of the Court. The Husband’s conduct and lack of compliance, which has occasioned further costs to the Wife, should be addressed by means of this Court exercising its discretion and making a costs order as sought in favour of the Wife. The quantum claimed falls within the range provided for in this Court’s scale of costs and I propose to make the order that is sought.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 30 August 2012
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