Wolkowicz and Wolkowicz

[2007] FamCA 1507

FAMILY COURT OF AUSTRALIA

WOLKOWICZ & WOLKOWICZ [2007] FamCA 1507

FAMILY LAW – Property – Final orders

Family Law Act 1975  (Cth)

HUSBAND: Mr Wolkowicz

WIFE: Ms Wolkowicz

FILE NUMBER: MLF 2638 of 2006

DATE DELIVERED: 5 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 5 November 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr P.A. Marchetti

SOLICITOR FOR THE HUSBAND: Moores Legal

THE WIFE: No Appearance

Orders

1. That the real property known as and situate at …, P in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … folio … (“the [P] property”) be forthwith sold altogether out of court (called “the sale”) and the husband and wife forthwith do all acts and things and sign all necessary documents to effect the sale of the P property and by way of consequential arrangements that shall be made for the purpose of effecting a sale :

   (a)the husband shall have the conduct of the sale; and

   (b)the husband shall have sole responsibility for :

   (i)appointing the selling agent;

   (ii)determining the method of sale and the terms and conditions of sale;  and

   (iii)the decision as to whether to fix a reserve price for the property and, if a reserve price is fixed, that reserve price.

2. That on or before 30 November, 2007 the wife advise the solicitors for the husband, in writing, whether she elects to retain the real properties known as and situate at lots …1, …2 and …3 …, D, in the State of New South Wales, being the whole of the land more particularly described as lot …1, and lots …2 and …3, in D, county of Y, local government area of L (“the [D] properties”).

3. That if the wife elects to retain the D properties, the husband and wife forthwith do all acts and things and sign all necessary documents to transfer to the wife (at her expense) all of the husband’s interest in the D properties and the sum of $95,000 (representing one half of the found value of the D properties) shall be adjusted against the wife for the purpose of paragraph (12) hereof. 

4. That if the wife does not elect to retain the D properties, the D properties be forthwith sold altogether out of court (called “the sale”) and the husband and wife forthwith do all acts and things and sign all necessary documents to effect the sale of the D properties and by way of consequential arrangements that shall be made for the purpose of effecting a sale:

   (a)the husband shall have the conduct of the sale;  and

   (b)the husband shall have sole responsibility for :

   (i)appointing the selling agent;

   (ii)determining the method of sale and the terms and conditions of sale;  and

   (iii)the decision as to whether to fix a reserve price for the properties and, if a reserve price is fixed, that reserve price.

5. That on or before 23 November, 2007 the wife deliver to the husband’s solicitors the duplicate certificates of title in respect of the P property and D properties  PROVIDED THAT  :

   (a)if she fails to comply with this order;  or

   (b)asserts that any of the certificates of title are not within her possession or control;

   then no later than 26 November, 2007, the wife provide to the husband’s solicitors a statutory declaration declared by her, in proper form, detailing the wife’s knowledge of the whereabouts of such of the duplicate certificates of title to the P property and the D properties as have not been delivered to the husband’s solicitors.

6. That without derogating from her obligations pursuant to paragraph (5) hereof, if the wife fails or refuses to provide to the husband the duplicate certificates of title to the P property and the D properties (or any of them), the wife forthwith do all acts and things necessary to enable the issue of new duplicate certificates of title to replace those she has failed to produce, including but not limited to providing such information as is required to enable the issue of such new duplicate certificates of title, and the wife shall be responsible for the costs of the issue of such new duplicate certificates of title.

7. That until 7 January, 2008 the wife have the right to occupy the P property and during such right of occupation she pay all rates, taxes and like apportionable outgoings of the P property as they fall due.

8. That on 7 January, 2008 the wife deliver to the husband vacant possession of the P property and thereafter, and until completion of the sale pursuant to paragraph (1) hereof, the husband have the sole right to occupy the P property and during such right of occupation the husband pay all rates, taxes and like apportionable outgoings of the P property as they fall due, and such payments shall be reimbursed to the husband from the proceeds of sale of the P property.

9. That pending the sale or transfer of the D properties the husband have the sole right to occupy the D properties and during such right of occupation he be responsible for payment of all rates, taxes and like apportionable outgoings of the D properties as they fall due, and such payments shall be reimbursed to the husband from the proceeds of sale of the P property.

10. That the proceeds of sale of the P property be applied as follows:

    (a)first, to pay all costs, commissions and expenses of the sale;

    (b)second, to reimburse the husband for all payments made by the husband in respect of rates, taxes and like apportionable outgoings pursuant to paragraphs (8) and (9) hereof;

    (c)third, to reimburse the husband for one half of the expenses incurred by him for the purpose of obtaining valuations filed herein of :

    (i)the P property;

    (ii)the D properties;

    (iii)the husband’s interest in B Pty. Ltd.;

    (iv)the husband’s interest in the property at …, G;  and

    (d)fourth, the balance to be paid to the solicitors for the husband to be held on trust and disbursed pursuant to these orders.

11. That in the event the D properties are sold pursuant to paragraph (4) hereof, then the proceeds of sale of the D properties be applied as follows:

    (a)first, to pay all costs, commissions and expenses of the sales;

    (b)second, the balance to be paid to the solicitors for the husband to be held in trust and disbursed pursuant to these orders. 

12. That sums held in trust by the solicitors for the husband pursuant to paragraphs (10) and (11) hereof be divided between the husband and the wife, such that there is an equal division of the matrimonial assets (including the husband’s accrued superannuation benefits) between the parties and for the purpose of calculating that equal division :

    (a)the following assets shall be deemed to be in the husband’s possession and form part of his entitlement :

    (i)a one-half interest in B Pty. Ltd. valued at $287,858;

    (ii)a one-half interest in real property situate at and known as …, D valued at $327,500;

    (iii)savings of $5,825;

    (iv)superannuation of $111,180;

    (b)the following assets shall be deemed to be in the wife’s possession and form part of her entitlement :

    (i)motor vehicle in the possession of the wife valued at $10,000;

    (ii)household furniture and antiques retained by the wife valued at $27,700.

IT IS DECLARED

1. That the wife has no beneficial or equitable interest in :

   (a)B Pty. Ltd.;  and

   (b)real property situated at …, D.

IT IS FURTHER ORDERED

1. That unless otherwise specified in these orders and save for the purpose of enforcing any moneys due under these or any subsequent orders:

   (a)each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders;

   (b)money standing to the credit of the parties in any joint bank account is deemed to be the property of the wife;

   (c)each party foregoes any claims he or she may have to any superannuation benefits belonging to or earned by 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 these orders;  and

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

2. That pending completion of the sale of the P property and the sale (if the wife does not elect to retain the properties) of the D properties, each of the parties :

   (a)holds his or her respective interests in the P property and the D properties upon trust pursuant to these orders;

   (b)be and is hereby restrained from encumbering the P property or the D properties without the consent in writing of the other party;  and

   (c)be and is hereby restrained by him and herself and his and her servants and agents from damaging the P property or the D properties.

3. That in the event the wife fails or refuses to execute any document required to give effect to these orders, a registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to s.106A of the Family Law Act 1975 to execute all documents in the name of the wife and to do all acts and things to give validity and operation to these orders and :

   (a)the wife in default is ordered to pay any and all foreseeable damages to the husband caused by her default;  and

   (b)the wife in default is ordered to pay all reasonable costs incurred by the husband for the purpose of enforcing this order and proving his damages. 

4. That it shall be sufficient authority for a registrar to act pursuant to paragraph (16) hereof to have before him or her an affidavit sworn by the solicitor for the husband deposing :

   (a)that a specified document was sent to the wife for execution on a specified date;  and

   (b)that the document has not been returned, signed by the wife (and where necessary witnessed) within ten days of its posting.

5. That in the event the wife is ordered to pay damages or costs pursuant to paragraph (16) hereof, such costs shall be paid to the husband from the sum otherwise due to the wife pursuant to paragraph (12) hereof.

6. That the wife pay the following costs of the husband and such sums be deducted from the sum otherwise due to be paid to the wife pursuant to paragraph (12) hereof:

   (a)costs of 29 January, 2007, fixed at $600;  and

   (b)costs of 3 October, 2007, fixed at $600.

7. That all extant applications be otherwise dismissed.

8. That these proceedings be removed from the List of matters awaiting finalisation.

9. That a sealed copy of these orders be sent by ordinary pre-paid post addressed to the wife at the P property.

10. That the reasons for judgment this day be transcribed and that copies be made available to the parties, the wife’s copy to be sent to her at the P property.

11. That 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 Wolkowicz & Wolkowicz is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2638 of 2006

MR WOLKOWICZ

Husband

And

MS WOLKOWICZ

Wife

REASONS FOR JUDGMENT

1. Before the court is an application for final property orders. The original application was filed by the husband on 7 September 2006; an amended application was filed on 26 July 2007.  In broad terms he seeks that the assets of the parties, built up over the years of their marriage, be divided equally between them.

Short history

1. The parties married in December 1972, in Poland. They subsequently emigrated to Australia and lived in Sydney for a bit over a decade, after which they moved to Victoria. They have two children, both now independent adults. They separated in January 2002. Their divorce became absolute on 5 April 2004. I note that on 23 August 2007, Mushin J gave the husband leave pursuant to section 44(3) of the Family Law Act 1975, to proceed with the application for final property orders despite the passage of time between the divorce and the filing of the application.

Parties

1. The husband is 58.  He married Ms M in December 2004.  They live in rented premises in Inner Melbourne with her 15-year-old daughter from an earlier relationship.  He has deposed to being in generally good health.

2. The wife is 57.  To the husband’s knowledge she is in generally good health.  The court can say nothing else about the wife, as she has refused to engage with the proceedings and has failed to comply with numerous orders which would allow her to do so.  For that reason, I propose to briefly summarise the litigation history.

Litigation history

1. The wife was served with the original application on 18 September 2006.  A case assessment conference was fixed for 17 October. The wife attended that conference but filed no responding material.  At that time, the registrar ordered that the wife file a response and statement of her financial circumstances by 17 November and made orders for the valuation of property.  The registrar noted the wife's inability or refusal to negotiate and participate in the proceedings and directed that if she failed to file the material, the husband have leave to apply for orders on an undefended basis.  Also noted on those orders was advice from the husband's lawyers that he would be seeking costs if she failed to comply with the orders.

2. Some valuations were undertaken in January 2007, but the former matrimonial home, in which the wife lives, was not valued as she had refused admission to a valuer.  By the time the parties attended a conciliation conference on 29 January 2007, no material had been filed by the wife, although she attended the conciliation conference.  Orders made by the registrar that day make it clear that she was reminded of her obligation to file a form 1A response and a form 13 statement of financial circumstances, pursuant to the orders of 17 October 2006.

3. The husband was given leave to file a valuation of an adversarial witness as to the former matrimonial home, and further orders were made requiring the wife to provide access to that valuer.  Again, an order was made giving the husband leave to apply for an undefended haring.  His costs of the day were reserved and fixed at $600.

4. On 9 July 2007, the valuer appointed by the husband pursuant to that order attended the former matrimonial home.  The wife refused entry.

5. At a directions hearing on 2 April 2007, orders were made for the proceedings to be placed in the trial notice list.  Again, the husband was granted leave to bring an application for an undefended hearing.  The wife did not attend court.  That order is surprising.  The wife had not filed a response.  The application was undefended.  It might more usually have been referred to a judge at that time, for hearing.

6. On 26 July, the husband filed the amended application to which I have referred, together with a form 2 application, seeking leave to proceed pursuant to s.44(3) of the Act and leave to proceed on an undefended basis, if the wife did not file a response.

7. Those applications came before Mushin J on 23 August. The wife attended the court and a number of orders were made, by consent. Again, the wife was ordered to file and serve a response and financial statement, by 20 September. Again she was ordered to allow access to the former matrimonial home for the purposes of the valuation. Mushin J granted the husband leave pursuant to s.44(3) and reserved liberty to apply to proceed on an undefended basis in the event of noncompliance by the wife.

8. On 1 October the valuer attempted another valuation of the former matrimonial home.  Again, the wife refused access to the property.

9. When the matter came to a pre-trial conference on 3 October, the wife had still not filed any material.  She did not attend that conference.  Yet again, orders were made giving her an opportunity to provide a response and financial statement by 26 October 2007.  The matter was otherwise listed before a judge today, for final hearing, and the husband was ordered to serve the wife with the sealed copy of those orders.  I have before me proof that occurred.

10. It is hard to imagine a more blatant failure to engage with the litigation.  This is a court of private law.  It determines disputes between parties according to law; in this case, according to the provisions of the Family Law Act 1975 which relate to the division of property after the breakdown of a marriage. 

11. The court cannot compel a respondent to engage with litigation.  It can do its best, by orders, to ensure that someone in the position of the respondent has an opportunity to put evidence before the court, an opportunity to contest the evidence put before the court by the applicant and an opportunity to tell the court what orders he or she seeks. 

12. The wife has turned her back, at least four times, on such opportunities.  In my view, the husband and his lawyers have been remarkably patient.  I have no hesitation in finding that it is appropriate to proceed today in the absence of the wife.  I reiterate that the application is undefended.  The wife was called at 10:10 am. in the callover and again when I commenced the hearing.  She has failed to appear.  She cannot, whether by intransigence or disinterest, succeed in denying a just resolution to the husband.

Assets

1. The parties were married for 29 years.  The husband and a partner conduct a business through the company B Pty Ltd.  That company owns factory premises at D, in which the husband has (effectively) a half interest.  That half interest was valued by Mr C at $327,500.  His half interest in the company has been valued by Mr F at $287, 858.

2. In addition, the parties are the joint proprietors of several pieces of real estate.  The former matrimonial home is at P.  The wife has been in occupation of that property since separation.  It is that property which she has, at least twice, refused to allow valuers entry.  It is valued by Mr. R at $1.73 million and is unencumbered.

3. The parties are also the registered proprietors of three pieces of land in D, in the State of New South Wales, being lots …1, …2 and …3.  The wife was in possession of that property for a period after separation.  The three properties have been valued together, by Mr S, at a figure of $190, 000.

4. The other assets of the parties are relatively modest.  The husband has savings of some $5,825.  I can say nothing about the wife’s financial position, save that the husband deposed to the wife having a motor vehicle, which he valued at $10,000.  She has had myriad opportunities to contest that valuation and in the absence of any such contest I proceed on the basis that is a reasonable estimation. 

5. The husband deposed to furniture and antiques retained by the wife in the former matrimonial home, the value of which he estimated at $27,700.  His bona fides in relation to that valuation can be gauged by the fact that he is prepared to have them included on his side of the ledger at that figure, have the wife retain them on her side of ledger or, indeed, have them sold by public auction. 

6. The husband has superannuation of $111,180.  I can say nothing about the wife's superannuation interests but they are likely to be modest. 

7. The husband has a credit card debt of just under $8,000, some part of which relates to money he has had to expend on the various valuations ordered, to which I have referred.

8. Counsel has alerted the court to a problem relating to the duplicate certificates of title in respect of some of these properties;  it is believed (on reasonable grounds) that they are in the possession of the wife.  She has failed to make them available and there is concern that she may continue to do so, notwithstanding orders for the sale of properties.

Contributions

1. The husband submitted that this was a marriage of 29 years and that each of the parties pulled their weight in the course of it.  They brought up two children.  He was involved in running a business. The wife was engaged in some paid employment, albeit modestly paid.  They had no assets of significance when they married.  What they have at the end of the day is the result of their partnership and work together.  He does not seek any finding other than a finding that they contributed equally, taking account contributions of all sorts, including, obviously, non-financial contributions.  I am satisfied on the evidence before me that that is a reasonable conclusion.  The parties are found to have contributed equally.

Section 79(4)(d) to (g)

1. It is unlikely that any proposed order will affect the earning capacity of either of the parties.  Whatever the division of property, the husband will be able to retain his business interests, which are supporting him, as they supported the family for so many years.

2. I have earlier described the parties’ ages and health.  They are in very similar situations.  The husband has the business interest to which I have referred, which has provided a source of income to him and continues to do so.  I can say nothing about the wife's financial position. 

3. Neither party has the care or control of a child of the marriage under 18.  Both their children are adults and leading independent lives. The husband has a commitment, as a matter of law, to support his current wife to the extent he is able to do so and the extent she is unable to do so.  He does not have a legal commitment to support her daughter but, like many people in his situation, he is financially and, no doubt in other ways, supporting that stepchild.

4. I take into account the superannuation interests of which I have spoken. 

5. The court has to consider the standard of living of the parties.  The wife has been living in the former matrimonial home, valued at $1.7 million.  She has had the use of the chattels and antiques.  The husband is in rented premises.  Whilst it is not unusual for the standard of living of families to drop after separation, it is important that that drop is not borne disproportionately by one party.

6. There is no evidence that the payment of funds to either party would enable them to engage in any education or training that would be relevant to additional income earning in the future.

7. I do take account that, on the evidence, the wife played the primary role in home‑making while the husband played the primary role in the income-earning sphere.  That is reflected in the contributions found.  I take into account the fact that this was a lengthy marriage and that it may have had an impact on the wife's earning capacity.  I can say no more than that, as she has refused to put any material before the court.

8. I take into account the husband's remarriage, his support of his current wife and stepdaughter and the income of his new wife, which is some $80 per week, from casual employment.

Conclusion

1. Having regard to those factors, I am not satisfied that any further adjustment is necessary.  There is a reasonably large asset pool.  It is sufficient to ensure that each of the parties can support themselves into the future.  I am satisfied that it should be divided equally and that orders to effect that are just and equitable.

2. I do propose to order that the property at P be sold. The amended application which the husband filed on 26 July provided for its sale, on such conditions as recommended by the selling agents.  Such changes as I make to the wording of the order will not render it unfair to the wife;  they are machinery provisions only.

3. The order will provide that the husband have the conduct of the sale, that he appoint the selling agent, the mode of sale and the reserve price.  The order will provide for the property to be forthwith placed on the market.

4. The wife may occupy that home for the next two months, until 7 January 2008.  She is to pay all outgoings during that period.  If the sale of the property has not settled by then, the husband will go into possession, pending settlement.  I am satisfied, having regard to her refusal to allow valuers into the property, that this is a pragmatic solution, aimed at ensuring that a purchaser is able to obtain vacant possession.

5. In relation to the D properties, the wife will be given the balance of this month, until 30 November, to advise the husband's solicitor whether she wishes to retain the D properties.  If she does, the sum of $95,000, being the husband’s half interest in the property, will be adjusted against the wife, and he will do all things necessary to transfer his interest in it to her.  If she does not so advise by 30 November, those properties will be sold forthwith.

6. There will be orders aimed at ensuring the production of the certificates of title or documents necessary to obtain new certificates of title.  The husband will have the right to occupy the D property unless and until the wife exercises that option.

7. I propose to make an order pursuant to s.106A. It will be sufficient authority to the registrar to act pursuant to this order to have before him or her an affidavit, sworn by the husband’s solicitor, deposing to a document having been sent to the wife for signature and it not having returned, signed, within ten days. Each of the parties will hold their interest in the properties upon trust, pursuant to these orders, from this day forth. Each will be restrained from encumbering the properties without the consent in writing of the other, and each will be restrained from damaging the properties.

8. The husband's application will be otherwise dismissed. 

9. As I said earlier, the husband and his legal advisers have been extraordinarily patient in not pushing for more draconian orders, earlier.  It is much to their credit that they have adopted that approach.  Significant additional expense has been incurred as a result of the wife's attempts to stonewall, and her refusal to comply with directions.  Orders will provide for the payment by the wife of one half of the costs of the various expert valuations, and the costs orders already made.

I certify that the preceding 42 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM

Associate

5 November 2007