Wilcher and Wilcher

[2007] FamCA 1733

FAMILY COURT OF AUSTRALIA

WILCHER & WILCHER [2007] FamCA 1733

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: Ms Wilcher

RESPONDENT: Mr Wilcher

FILE NUMBER: MLC 761 of 2007

DATE DELIVERED: 2 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 2 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.J. Isles

SOLICITOR FOR THE APPLICANT: Jennifer Feeney & Co Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the net proceeds of the sale of the parties' former matrimonial home, known as and situated at …, P in the state of Victoria, being the whole of the land more particularly described in certificate of title volume … folio … lodged in the Office of Titles, be distributed as follows:

   (a)       as to 60 per cent, to the wife; and

   (b)       as to the balance, in accordance with the order of the County Court of Victoria made pursuant to the Confiscation Act 1997 of that state on … July 2006.

2. It is declared that for the purpose of paragraph 5 of the said order of the County Court of Victoria and pursuant to s 78 of the Family Law Act 1975, the parties hold their interests in the said property in accordance with the disbursements ordered pursuant to paragraph 1 hereof.

3. That as between the husband and wife, property and all items of personal property, including any interest in any superannuation benefit, forthwith vest in the party presently having possession thereof.

4. That the engrossment of these orders be expedited.(?)

5. That the wife cause a sealed copy of this order to be served on the husband as soon as practicable by prepaid ordinary mail.

6. That all applications be otherwise dismissed and removed.

7. General liberty be reserved to all parties to apply .

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 761 of 2007

MS WILCHER

Applicant

And

MR WILCHER  

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for alteration of property interests arising out of the breakdown of the parties' marriage.  The wife seeks to conduct the proceedings on an undefended basis.  The husband is incarcerated in the N Prison at …, having been sentenced to prison for offences of embezzlement from a leading Australian bank of which at that time he was an employee.  He was not represented, nor did he appear, at a directions hearing before a registrar on 26 March of this year and he has not appeared today.

2. I am satisfied by an affidavit of service of Mr S that the husband has notice of the proceedings, having been served with the original application and accompanying documents.  I am also satisfied by an affidavit of Jennifer Feeney sworn on 28 March 2007, the wife's solicitor, that the husband wrote a letter to the clerk of the court on 16 March 2007 with regard to the proceedings on 26 March 2007 and stated:

   I advise that I am the respondent husband in the abovementioned proceedings and confirm that I have been served with documents relating to this matter and that I do not oppose the orders sought in the application by [the wife].

3. He has then signed the document.  Because of those facts and others which I will shortly relate, in my view it is in the interests of justice that these proceedings be determined at this point.  I have read the initiating application of the wife on form 1 filed on 23 January 2007 together with her affidavit and financial statement and the other two affidavits to which I have already referred. 

4. The facts as alleged by the wife are undisputed.  I did not find anything inherently improbable in them and in all the circumstances I accept them.  They satisfy me of the following matters:  the husband is aged 49 and the wife is aged 46; the parties married in April 1983 and separated in July 2005; they have two children, twins born in July 1990, presently aged nearly 17 years. 

5. The separation to which I have referred was a separation under the one roof and that became a physical separation in early May 2006 when the husband was incarcerated for obtaining property by deception.  He is due for release in May 2008.  He was charged with a series of defalcations in late 2004 while he was an employee of the Bank, and at that time the wife was also an employee of the same Bank. 

6. As a result of the husband's conviction and imprisonment, the Victorian Director of Public Prosecutions obtained an interim order in the County Court of Victoria pursuant to the Confiscation Act 1997 of that state, restraining any dealings with the family's home at P.  The order was made ex parte and the case was then listed in March 2006.  The husband pleaded guilty in April 2006 and the wife then made application to the County Court, seeking that her share of the home not be restrained pursuant to the order.

7. The Director of Public Prosecutions was advised that the wife intended to apply for a family law property settlement and as a result of negotiations with the Director of Public Prosecutions it was agreed that the director would not intervene in any application before this court in which the wife sought an interest in the home of no more than 60 per cent. 

8. On that basis, in July 2006 consent orders were made in the County Court providing that the wife's interests in the property be excluded from the operation of the restraining order.  The wife was permitted to sell the property, subject to certain consents.  The order also provided that the wife was to be paid up to 60 per cent of the total net proceeds of the sale if that were to be ordered by this court.  The property was sold in January for $370,000 and settlement is to take place mid April 2007.  I will return to the assets shortly.

9. I am satisfied that the wife was employed on a full‑time basis outside the home until the parties' children were born in 1990.  Her wages were used for the family's expenses, which were normal living expenses.  The wife resigned her employment after the birth of the children and received about $30,000 by way of superannuation and other resignation benefits.  Again those moneys were applied to the benefit of the family. 

10. Between approximately 1992 and 1998 the wife was employed in paid employment outside the home on a part‑time basis and after that period she returned to such employment on a full‑time basis.  The wife was offered a redundancy package by the employer Bank in February 2005 and received a superannuation payment of $30,000 together with a further cash payment of $38,000.  That cash has been used to pay expenses in relation to the children and the home, and at the time of swearing the affidavit there was a sum of approximately $11,000 remaining.

11. As I have also noted, the husband was in paid employment outside the home until the investigations commenced and he resigned in September 2003.  It would appear that he has not received any wages or salary since that time.  I am satisfied that both parties contributed all of their income and resources to the benefit of the family at all relevant times.  There is nothing unusual in their non-financial contributions and I am satisfied that the wife has been the primary homemaker and parent throughout the parties' relationship.  She has been the sole carer since May 2006 when she ceased full‑time employment to care for the children while they were young, and on that basis I make the finding which I have already done.

12. The wife has paid all the expenses in relation to the children and the home since mid-2005, and of course the children have suffered very significant emotional and psychological trauma as a result of their father's criminal activities and subsequent imprisonment.  As I have said, the husband remains in prison and will be so for a little more than a year from now.  The wife is employed outside the home on a full‑time basis and intends continuing in that work as long as she is required and able to do so.

13. When she was suspended, when the husband was first investigated in October 2003, she was not working at the Bank for approximately three weeks and upon her resumption was demoted.  As a consequence her salary was reduced by approximately $4000 per annum.  She had to continue working at the Bank as all the husband's accounts were frozen and the family needed her salary. 

14. The children who, as I have said, are aged 16 years have another two years of secondary school to complete.  The husband obviously pays no child support.  The parties' daughter is expected to go on to tertiary education and the son has a significant sporting interest and obvious ability and intends to apply for a sports scholarship in the United States.  The wife will obviously need to continue to support the children financially and in all other ways for at least the foreseeable future.  The wife's financial statement shows a total average weekly income as an administrative officer of $807 with personal expenditure of about $640 per week. 

15. The relevant property for the purpose of these applications is first constituted by the home, in respect of which, as I have said, there has already been a sale.  The value of the home is constituted by the sale price of $370,000, in respect of which there is a mortgage of $145,000.  Further non-superannuation assets include the wife's motor vehicle, $18,000; the husband's motor vehicle, $3000; bank accounts, $14,000; shares, $16,800; and furnishings, $5000.  That yields a gross asset pool of $426,800.  Together with the mortgage to which I have already referred, there is a personal loan of $10,000, credit cards of $8500 and costs of sale, $10,000, bringing liabilities to $173,500 and a net non‑superannuation asset pool of $253,300.

16. In addition, both parties have significant superannuation.  The husband has a superannuation policy presently valued at $316,329.  The wife's policy is presently valued at $226,673.  That totals $543,002.  If the superannuation assets are treated as assets, the total net pool amounts, with those superannuation resources, to $796,302.  Neither party had any significant asset at the time of the marriage, and save for what I have referred to, there has been no unusual contribution to the parties' financial situations.

17. Looking at matters of contribution with regard to the first three paragraphs of section 79(4), on any view the wife would have to be held to have contributed at least equally to the parties' asset pool.  In addition to that, the future factors under section 75(2) by virtue of section 79(4)(e) would warrant a further adjustment in favour of the wife of at least 10 per cent, yielding to the wife a result of 60 per cent of the net assets. 

18. However, that is not what is proposed on behalf of the wife.  The wife seeks an order for the following assets:  60 per cent of the net proceeds of sale of the home, $129,000; motor vehicle, $18,000; cash in accounts, $14,000; shares, $16,800; chattels, $2500, together with her superannuation of $226,673, less liabilities of $18,500, making a total net pool for her of $388,473 which amounts to approximately 49 per cent of the total asset pool, including superannuation.

19. The wife is represented by experienced counsel and a solicitor.  During submissions I raised with counsel the proposition that 49 per cent of the total net asset pool, including superannuation, appeared to be very significantly under what the wife might expect from these applications.  In particular, I was informed by counsel that the wife does not seek any portion of the husband's superannuation, albeit that it may well have been possible for her to achieve that. 

20. Section 79(2) requires me to do justice and equity to both parties, and it seems to me that there is a significant argument for the proposition that 49 per cent of the net assets to the wife does not do her that justice and equity, particularly in light of the husband's position, his incarceration and the effect on the whole family.  However, on the basis that the wife assures me through her counsel that she fully understands that she may have received more than that which is sought and that in full knowledge of that she seeks that which is sought, I am prepared to accept the proposition that justice and equity is not only to be seen in a case such as this one as purely financial.

21. In those circumstances I have decided to accede to the orders as sought.  Having specified the caveat as to my views of justice and equity pursuant to section 79(2), there will be orders accordingly.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  May 2009