WONG & ROWLANDS

[2009] FamCA 1125

FAMILY COURT OF AUSTRALIA

WONG & ROWLANDS [2009] FamCA 1125

FAMILY LAW – PROPERTY – s 79 proceedings – No appearance by husband – husband overseas – Husband not responded to Court documents – Limited assets – Wife to retain term deposit – Husband to retain superannuation – Just and equitable orders

Family Law Act 1975 (Cth)

APPLICANT: MS WONG

RESPONDENT: MR ROWLANDS

FILE NUMBER: MLC 286 of 2009

DATE DELIVERED: 17 NOVEMBE 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 17 NOVEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS DORIAN

SOLICITOR FOR THE APPLICANT: SCHETZER CONSTANTINOU

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT the requirement for personal service upon the husband of the wife’s amended application and further affidavit filed 4 November 2009, together with the further affidavit of the wife’s solicitor filed 17 November 2009 be dispensed with.

2. THAT the solicitors formerly acting for the husband, Mirabelli D’Ortenzio & Co, forthwith do all acts and things and sign all necessary documents and give all proper instructions to authorise and facilitate the payment out to the wife’s solicitors, Schetzer Constantinou, of all monies and interest currently lodged for or on behalf of the husband and wife, or either of them, in the Commonwealth Bank Term Deposit Account.  (Such monies estimated in the sum of approximately $54,000).

3. THAT the husband retain absolutely all of his superannuation and work related entitlements or benefits.

4. THAT otherwise each of the husband and wife retain all personal assets and chattels now in their respective possession.

5. THAT each of the husband and wife be solely responsible for the payment of any personal debt or liability in their name or incurred by them and indemnify the other as to any such liability.

6. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

7. THAT as soon as practicable the wife’s solicitors serve a sealed copy of the orders made this day and the extempore reasons for judgment upon:

   (i)the former solicitors for the husband; and

   (ii)by e-mail upon the husband.

8. THAT otherwise the wife’s application for final orders filed 14 January 2009 and her further amended application for final orders filed 4 November 2009 be dismissed.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 286 of 2009

MS WONG

Applicant

And

MR ROWLANDS

Respondent

REASONS FOR JUDGMENT

1. This matter is before me on an undefended basis.  Ms Dorian, solicitor, appears for the wife.  There is no appearance by or on behalf of the husband.  He was called out of court, and did not appear.  This matter has been before me on 4 September 2009 and 17 September 2009.  I have perused the orders that I made on those occasions, and, in particular, observed that it was noted in the most recent order that the wife’s solicitors foreshadowed an application to the court to hear and determine matters on an undefended basis should the husband not appear or be represented on this occasion.  I have perused the earlier court documentation and the recent affidavit of the wife’s solicitors which satisfies me that all reasonable and proper efforts have been made to bring the wife’s application and her amended application and the orders sought this day to the attention of the husband.

2. In particular, I have read, and accept, the matters deposed to by the wife’s solicitor in her affidavit filed 17 November 2009, and, indeed, the earlier efforts to give notice to the husband and effect service in the prior affidavits filed with the court.  The wife’s amended application is filed 4 November 2009.  The primary order sought is that any and all moneys and interest held by or on behalf of the husband or wife by the husband’s solicitors, Mirabelli d’Ortenzio  & Co, solicitors, and lodged with a Commonwealth Bank term deposit, be forthwith paid out to the wife.  That approximate sum of money will be $54,000 or thereabouts, including interest.  There is an annexure to the affidavit of the wife, filed 4 November 2009, annexure “YW7” which identifies the moneys then held in February of this year, and it is in an interest bearing account. 

3. Having identified those moneys, I am advised by the wife’s solicitor that the particular details of the bank account or term deposit are not available, but as between the wife’s solicitors and the former solicitors for the husband, there is no dispute as to identification of those moneys.  The wife’s most recently filed affidavit sets out a detailed history of the facts of the marriage and of the financial and commercial aspects of both the marriage and each of the parties.  It is a detailed affidavit which I have carefully read and evaluated and it provides a very proper basis upon which to make final orders.  First, I am satisfied that the husband has been given every opportunity to file documents with the court, to appear at court, or to show a level of interest in this case.  I am advised from the bar table that he is presently out of Australia and working in China.

4. I am satisfied that, to the best of the wife’s solicitor’s knowledge and belief, she has forwarded documents to the husband’s most recent email address and, indeed, from the bar table, it is confirmed that that is the address that his former solicitor’s have also access to for contact with the husband.  Otherwise, efforts have been made to effect service on a past address in a Melbourne suburb and I conclude that all appropriate steps have been taken to discharge the obligations upon the wife.  I intend to otherwise dispense with personal service upon the husband of the court documents relied upon by the wife.  The wife is 40 years of age.  She is a childcare worker; her income is approximately $730 per week. 

5. She lives in rented premises in a Melbourne suburb; she has some Family Allowance benefit, but otherwise she alone is solely responsible for the care, welfare, and upbringing of the child.  That child was born in February 1999 and his name is D.  The husband and wife in this case met and thereafter commenced a relationship in China, and then commenced cohabitation in April 2004, married in August 2004, and finally separated on 26 January 2008.  The husband is 53 years of age, and a citizen and permanent resident of this country, although now living and working overseas.  The history of the relationship is provided in much detail between paragraphs 10 and 22 of the wife’s affidavit, and I have read and evaluated that background.

6. The wife provided assistance to the business.  Her affidavit is extensive in that detail between paragraphs 23 and 33.  The real property acquisition and dealing of the parties in their various properties is, again, described in some detail between paragraphs 34 and 51 of the affidavits.  I have read and ascertained those property dealings and the moneys arising there from.  I am also advised, in paragraph 52, that the husband received moneys from a prior divorce settlement, and had sold that block of land in Europe.  That does seem to be somewhat of an educated guess on the part of the wife.  The husband’s superannuation is detailed in paragraph 53 and thereafter and in exhibit 8 to the affidavit, and it does seem that as at 1 July 2007 he had an entitlement of $169,000 or thereabouts.

7. No notice has been given to the R Superannuation Fund.  Indeed, Ms Dorian knows little or nothing of that fund, although there is an address for service on the exhibit.  The wife has made no claim to those moneys in superannuation and no splitting order is sought against the husband’s moneys therein deposited to his benefit.  I proceed upon the basis that the husband has superannuation moneys and will receive and retain those moneys when appropriate.  In contrast, the wife’s superannuation is nominal.  I have read the material as to the motor vehicle and the husband’s financial benefit there from, and the allegations of misappropriation of Centrelink moneys to the financial detriment of the wife and her child.

8. I have also read the substantial material in the affidavit dealing with the husband’s refusal to negotiate, and, thus, the substantial moneys and costs incurred by the wife in pursuing this order.  The procedural history that is set out from paragraph 79–89 inclusive certainly highlights every real and sustained effort made by the wife, both to contact the husband and to fairly and properly put material before the court.  Finally, her current situation and the miniscule property assets by way of furniture that she took on separation are highlighted in the material.  As an overview, and on the basis of the material before me, I am comfortable in any finding that the husband with his superannuation and other assets taken has more than adequately provided for himself, particular so when the wife seeks no claim against those assets to be retained by him.

9. The focus of the amended application of the wife is purely upon the moneys held in the Commonwealth Bank and, as I earlier indicated, estimated to be approximately $54,000 or thereabouts.  Pursuant to the Family Law Act, the court is empowered to alter property interests.  An order shall not be made unless the court is satisfied that, in all of the circumstances, it is just and equitable to make the order.  I have particular regard to the section 79(4) provisions which relate to contribution both financial and otherwise made to the acquisition, conversation, or improvement of property.  Likewise, as a contribution factor, the facts that support the contribution made by a party to the marriage to the welfare of the family, including a capacity in homemaker and parent, is a matter upon which I rely.

10. Otherwise, I have regard to subparagraphs (d), (e) thereof. In determining what is a just and equitable order, there are further matters to be taken into account and these are identified in section 75(2). I have evidence before me and I have regard to the age and state of health of the parties, their income, property, and financial resources, the wife’s obligations for her son (though he is not a natural child of the marriage), and I further have regard to subparagraphs (f), (k) and (o). My priority in this case is to do justice between the parties. I commenced by examining the assets and I am satisfied that the husband did make significant contributions, certainly in respect of his superannuation, and in respect of some of the other property assets dealt with in detail by the wife in her affidavit.

11. On the other hand, there has been a very real contribution made by the wife, and she has particular financial needs for herself and her son. I have, therefore, in this ex tempore judgment identified the assets before the court, though I have an inclination that there are other assets of or known to the husband or related to his income or overseas employment or past businesses, but they are not matters upon which I speculate and which will no doubt remain with the husband in any event. I have regard to both the contributions of both parties and to the section 75(2) factors as prescribed in the Family Law Act 1975.  Finally, I do stand back and reflect upon the overall justice that can best be afforded the husband and wife on this property issue. 

12. I will make an order requiring the former solicitors for the husband to do all acts and things to facilitate the payment out to the wife’s present solicitors all moneys held in an interest bearing account by or on behalf of the parties or either of them, including all interest; such moneys to be paid forthwith on account of the wife to her solicitors. Otherwise, it is understood by these orders that the husband’s superannuation is retained to himself and each party otherwise will retain all assets now in their possession.  I intend these orders to be final.  It will be necessary to effect service upon the husband, or at least endeavour to effect service, of a sealed copy of these orders. 

13. In the particular context of this case, I will not reserve liberty to apply as I do not understand the husband has been in any way disadvantaged by the making of the orders and I have the very strong conviction that these amended orders as sought by the wife are known to him and most probably the subject of his acquiescence.  I will require the orders to be served both by registered post upon his former solicitors and by email to each of those email addresses identified in paragraph 2(c) of the wife’s amended application.  I will have these brief ex tempore reasons transcribed and placed upon the court file.  The reasons for judgment can cease. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: