WULAN & GEMA

FAMILY COURT OF AUSTRALIA

WULAN & GEMA

[2012] FamCA 262

FAMILY LAW - PROPERTY – undefended hearing – failure of husband to appear – complete non-disclosure by the husband - wife’s future needs greatly exceeds those of the husband

FAMILY LAW - SPOUSE MAINTENANCE – Wife established need – Husband’s capacity to pay

FAMILY LAW - COSTS – Indemnity costs

Family Law Act 1975 (Cth)

Weir & Weir (1993) FLC

APPLICANT:

Ms Wulan

RESPONDENT:

Mr Gema

FILE NUMBER:

SYC

2807

2010

DATE DELIVERED:

26 April 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

16 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Reynolds

SOLICITOR FOR THE APPLICANT:

Doolan Wagner & Callaghan

THE RESPONDENT:

No appearance

Orders

That the husband pay and continue to pay all amounts as and when they fall due in respect of registered mortgage … to Westpac Banking Corporation in respect of the property, … G Street, Suburb R, New South Wales (“the property”).
That within two (2) calendar months from the date of these Orders, the husband cause all amounts payable to Mr L, Ms L and Mr T pursuant to the mortgage dated 26 July 2011 to be paid in full, and to secure a Discharge of mortgage … registered against the title to the property.
That pending the Discharge of the registered first mortgage to Westpac Banking Corporation, or until 31 December 2014, whichever shall first occur, the husband shall pay as and when they fall due the following utilities and outgoings in respect of the property:
a.     Council Rates;
b.     Water Rates;
c.     Building insurance;
d.     Electricity and gas;
That upon repayment in full of the mortgage to Westpac Banking Corporation, or by 31 December 2014, whichever shall first occur, the husband shall do all acts and things and sign all necessary documents to transfer to the wife, unencumbered, the whole of his right title and interest in the property known as and situated at … G Street, Suburb R being the whole of the land contained in certificate of title folio identifier … .
That pending the husband's compliance with Order 4 hereof, the wife shall have exclusive occupation of the property.
That the husband be restrained from further encumbering the property and that the wife be entitled to secure her interest in the property by registering a caveat against the title.
That should the husband sell the property at any time for any reason whatsoever, the wife shall be entitled to the whole of the net proceeds of sale.
That the husband pay to the wife the sum of $250.00 per week by way of spousal maintenance.
That the husband pay the wife’s costs of and incidental to these proceeding, being an amount of $23,000.00, within three (3) months of the date of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wulan & Gema has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2807 of 2010

Ms Wulan

Applicant

And

Mr Gema

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

On 12 August 2011 the wife, Ms Wulan, filed an application for alteration of property interests; spouse maintenance and costs. The husband, Mr Gema, has taken no part in the proceedings despite having been served with the wife’s application on 18 August 2011. He has filed no response, financial statement nor affidavits and has attended no court event.
The husband filed an application for divorce on 7 May 2010 and appeared in person on 1 July 2010, when those proceedings were adjourned to 29 July 2010. On that date the husband again appeared in person and a Registrar pronounced decree nisi of dissolution of the marriage.
The wife’s application was listed before me for ex parte hearing on 19 March 2012. I declined to proceed with the hearing on that date, as the wife had filed an amended application on 6 March 2012. This application sought the following orders:
1.     That the husband pay and continue to pay all amounts as and when they fall due in respect of registered mortgage […] to Westpac Banking Corporation in respect of the property, [… G Street, Suburb R], NSW (“the property”).
2.     That within two (2) calendar months from the date of these Orders, the husband cause all amounts payable to [Mr L], [Ms L] and [Mr T] pursuant to the mortgage dated 26 July 2011 to be paid in full, and to secure a Discharge of mortgage […] registered against the title to the property.
3.     That pending the Discharge of the registered first mortgage to Westpac Banking Corporation, or until 31 December 2014, whichever shall first occur, the husband shall pay as and when they fall due the following utilities and outgoings in respect of the property:
a.Council Rates;
b.Water Rates;
c.Building insurance;
d.Electricity and gas;
4.     That upon repayment in full of the mortgage to Westpac Banking Corporation, or by 31 December 2014, whichever shall first occur, the husband shall do all acts and things and sign all necessary documents to transfer to the wife, unencumbered, the whole of his right title and interest in the property known as and situated at [… G Street, Suburb R] being the whole of the land contained in certificate of title folio identifier […].
5.     That pending the husband's compliance with Order 4 hereof, the wife shall have exclusive occupation of the property.
6.     That the husband be restrained from further encumbering the property and that the wife be entitled to secure her interest in the property by registering a caveat against the title.
7.     That should the property be sold at any time for any reason whatsoever, the wife shall be entitled to the whole of the net proceeds of sale.
8.     That the husband pay to the wife the sum of $250 per week by way of spousal maintenance.
9.     That the husband pay the wife’s costs of and incidental to these proceedings on an indemnity basis.
I was concerned that the husband may not have received the wife’s amended application prior to 19 March 2012. The affidavit sworn by the wife’s solicitor on 27 March 2012 indicated that she forwarded a number of documents, including the amended application, to the husband under cover of letter dated 8 March 2012. There were substantive differences between the orders sought in the two applications. It may have been the case that the husband was prepared to allow the initial application to proceed on an undefended basis but took a different view in respect of the wife’s amended proposal.
In these circumstances I adjourned the hearing of the wife’s application to 16 April 2012 and made the following directions:
1.     I adjourn proceedings to 9.30am on Monday 16 April 2012.
2.     I direct that the solicitor for the applicant wife forward to the respondent husband at his last known mailing address written advice to the effect that she intends to press the Court for orders in accordance with her amended application filed on 6 March 2012 on the next occasion.
3.     The respondent husband attend in person with or without legal representation on 16 April 2012 if he wishes to oppose any or all of the orders sought in the wife’s amended application.
4.     The solicitor for the applicant wife file an affidavit to establish that such written advice has been rendered to the husband.
The wife complied with all of these directions, as was evidenced in affidavits sworn by her solicitor on 27 March 2012 and 11 April 2012. The wife’s solicitor deposed that she served a sealed copy of the orders of 19 March 2012 upon the husband by post and email. I was thus satisfied that the husband was aware of the adjourned hearing date. Further confirmation of his knowledge of the proceedings and the adjourned hearing date emerged in oral evidence given by the wife, to which I refer below in these reasons.

BACKGROUND

Of necessity this background material is extracted from the wife’s affidavit. The husband elected to take no issue with her evidence.
The husband was born in Indonesia in 1962 and is 49 years of age. The wife was born in Indonesia in 1965 and is currently 46 years old. The parties married in October 1985 and separated in August 2005, according to the husband’s application for divorce. In her affidavit the wife agreed that separation occurred in 2005.
There are four children of the marriage: V born in August 1989 (22), C born in February 1991 (21), B born in June 1993 (18) and D born in August 2005 (6). All four children live with the wife in the former matrimonial home at Suburb R. D spends time with the husband each Saturday from 1.00pm until 8.00pm and from 1.00pm to 7.00pm every Sunday. D was diagnosed with Autism at the age of one and a half years.
The husband’s mother purchased the property, G Street, Suburb R (“the Suburb R property”) for $102,000.00 in 1984. In 2005 she transferred this property to the husband.
When the parties married the wife moved into the Suburb R property which then was occupied by the husband, his mother and sister. The parties continued to live in that home until about September 1988 when they returned to Indonesia for a second wedding ceremony with their families. The cost of this trip was borne equally by their respective families.
The husband’s mother and sister moved out of the Suburb R property in about 1987 and returned to Indonesia. The parties resumed occupation of this home when they returned from their trip to Indonesia.
At the date of marriage the wife’s only asset was a Honda motor vehicle. She received an insurance payout of $16,000.00 when this car was written off after an accident at the end of 1986. According to the wife, the husband had no substantial assets at the commencement of cohabitation.
From the date of the marriage, the wife received $1,000.00 per month from her mother. She used these funds to meet day-to-day living expenses for the family. The husband’s mother paid the rates and insurance in respect of the Suburb R property.
The wife returned to Indonesia each year from 1989, taking the children with her, and stayed with her mother for several months. During these periods the wife and children were financially supported by her mother.
After some of these visits the wife’s mother gave her cash which she brought back to Australia. In 1989 the wife received $50,000.00 from her mother, which she used to meet day-to-day living expenses of the family.
In 1991 and 1992 the husband, the wife, V and C lived in Indonesia with the maternal family. The husband received rental income in respect of the Suburb R home, which he used to meet outgoings in respect of the property. The wife’s parents met the living expenses of the parties and their children during this period.
The husband’s father died in about 1992, leaving him an inheritance in an amount unknown to the wife. The husband purchased two businesses, both of which failed. He incurred a substantial credit card debt and other business liabilities.
The income from the husband’s businesses was insufficient to meet the expenses of the family, hence the wife regularly asked her parents for financial assistance. She estimated that they provided “approximately $10,000.00 to $15,000.00 per annum for the majority of the marriage”. The wife used some of these funds to pay the husband’s debts arising from his failed businesses.
The wife deposed to a conversation between the parties, in these terms, concerning these advances from her parents:
30. I estimate that my parents gave us approximately $400,000.00 over the whole of the marriage. The husband acknowledged this. Every time we used their money, the husband said to me words to the effect: ‘I know we will have to pay this back’. When we separated, we had a conversation in or to the following effect: ‘He said, we have to pay your parents back. They have given us so much money. He said let’s agree on an amount. He said it’s at least $400,000. I said I will agree that we owe him $400,000.’
This discussion took place at the time of the parties’ separation.
Shortly before the birth of D in August 2005 the family moved into rented accommodation at Suburb M. In July or August 2010 the wife and children moved back into the Suburb R property, on the invitation of the husband. The wife deposed that he said: “[G Street] is yours. You should move back in. I will pay off the mortgage and give you the house. You and the children need it”.
In 2006 the husband obtained a loan of $350,000.00 from the Westpac Bank, apparently for the stated purpose of renovations to the Suburb R property. No such renovations were carried out and the wife does not know of the fate of these funds. In March 2011 the husband refinanced this liability, taking out a new loan facility of $375,000.00 with the Westpac Bank.
Since separation the husband has paid the mortgage, rates, insurance and utilities in respect of the Suburb R property. He has met most of D’s expenses and purchased some groceries for the family. He pays no periodic child support but the wife receives a lump sum each year from his income tax refund.
On 16 April 2012 the wife gave oral evidence as to conversations between herself and the husband on 24 March 2012, 31 March 2012, 7 April 2012, 14 April 2012 and 15 April 2012. She said:
I see him every Saturday. I saw him on 24 March 2012 and he said ‘why do you need to go to court? I told you I would give you everything.’
On 31 March 2012 I got a paper ready for him to sign because he said he would. He signed the paper in front of a witness. This is his signature, I saw him sign. I saw the other two signing. On 31 March 2012 he said ‘I just want to get out of this bloody marriage, I want to move on.’
On 7 April 2012 he said ‘I will come to court with my mother and my solicitor’.
On 14 April 2012 he said ‘I am not coming’.
On 15 April 2012 he came to collect my daughter from church. He said ‘I am not going to come, you can do whatever you want’.
The wife produced “the paper” signed by the husband, which was a copy of most of the orders sought in her amended application. This document, Exhibit 1, read as follows:
1.     That the husband pay and continue to pay all amounts as and when they fall due in respect of registered mortgage […] to Westpac Banking Corporation in respect of the property, [… G Street, Suburb R], NSW (“the property”).
2.     That within two (2) calendar months from the date of these Orders, the husband cause all amounts payable to [Mr L], [Ms L] and [Mr T] pursuant to the mortgage dated 26 July 2011 to be paid in full, and to secure a Discharge of mortgage […] registered against the title to the property.
3.     That pending the Discharge of the registered first mortgage to Westpac Banking Corporation, or until 31 December 2014, whichever shall first occur, the husband shall pay as and when they fall due the following utilities and outgoings in respect of the property:
a.Council Rates;
b.Water Rates;
c.Building insurance;
d.Electricity and gas;

4.     That upon repayment in full of the mortgage to Westpac Banking Corporation, or by 31 December 2014, whichever shall first occur, the husband shall do all acts and things and sign all necessary documents to transfer to the wife, unencumbered, the whole of his right title and interest in the property known as and situated at [… G Street, Suburb R] being the whole of the land contained in certificate of title folio identifier […].
5.     That pending the husband's compliance with Order 4 hereof, the wife shall have exclusive occupation of the property.
6.     That the husband be restrained from further encumbering the property and that the wife be entitled to secure her interest in the property by registering a caveat against the title.
7.     That should the property be sold at any time for any reason whatsoever, the wife shall be entitled to the whole of the net proceeds of sale.
8.     That the husband pay to the wife the sum of $250 per week by way of spousal maintenance.

It should be noted that this document did not include paragraph 9, by which the wife sought an order that the husband pay her costs of and incidental to these proceedings on an indemnity basis.

CONSIDERATION – PROPERTY SETTLEMENT

On 6 March 2012 the wife’s solicitor filed a draft balance sheet, which read:
Assets
[… G Street, Suburb R]              Husband        $815,000.00
St George bank account             Wife  800.00
[…] Kia Motor Vehicle             Wife  4,500.00
House contents  Wife  2,500.00
Shares  Husband  n/k
Bank accounts  Husband  n/k
Total  $822,300.00
Liabilities
American Express and
Mastercard credit cards             Wife                   $3,000.00
Westpac mortgage  Husband        $375,000.00
Loan from [L and T]                  Husband          $20,000.00
Total  $398,000.00
Superannuation
AON Super  Husband  n/k
Documents annexed to the wife’s affidavit sworn on 5 March 2012 would suggest that the husband may hold shares but the available evidence did not enable a finding as to their identity or value. Statements from AON and MLC annexed to the wife’s affidavit indicated that the husband held a life insurance policy in December 2011 and superannuation benefits in June 2011. There was no evidence as to the value of the husband’s superannuation.
Annexure G to the wife’s affidavit consisted of statements from Colonial First State Industry Investment Fund. The most recent statement was dated 31 December 2009. These documents were thus of no assistance in identifying the present pool of property.
Documents produced on subpoena and tendered in evidence provided some indication that the husband has savings and the capacity to service a mortgage of $375,000.00. This evidence is insufficient to ground findings as to any assets currently held by the husband but the following salient points emerge from these documents:
·       The payout figure in respect of the mortgage on the Suburb R property as at 28 February 2012 was $387,000.00;
·       In a home loan application to the Commonwealth Bank dated 5 February 2009 the husband represented that he received a gross income of $71,552.00 per annum and that he held the following assets:
othe Suburb R property     $650,000.00
omotor vehicle  $20,000.00
oSavings  $63,000.00
oManaged funds                  $60,000.00
oHousehold contents          $10,000.00
oSuperannuation                 $70,000.00
·       In a loan application to the Westpac Bank dated 28 April 2011 the husband represented that he received a gross annual income of $82,386.00 and that his assets consisted of the Suburb R property, valued at $750,000.00, and a cheque account with a balance of $3,000.00 - $4,000.00;
·       The Westpac Bank made an offer of a loan of $375,000.00 to the husband on 15 February 2011;
·       Commonwealth Bank statements showed payment of “salary” of $3,545.00 per month to the husband in January and February 2012;
·       A Westpac Bank valuation report dated 22 February 2011 assessed the Suburb R property at $750,000.00;
·       A Westpac Bank statement dated 17 March 2011 showed a credit balance of $28,499.00;
·       The husband operates a Commonwealth Bank account jointly with “[A. AA].”
In circumstances of complete non-disclosure by the husband, I am unable to determine the extent of his assets, liabilities and financial resources. I can draw no conclusion other than that the husband’s non-disclosure was a deliberate decision on his part. That being so, authorities such as Weir & Weir (1993) FLC 92-228 indicate that I am entitled to make orders which “go beyond the identified property” and that I “should not be unduly cautious about making findings in favour of the innocent party.”
I would observe that the wife in her affidavit deposed that the husband “has mostly been very good in paying for the family since separation” and it is abundantly clear that he did not abandon his responsibilities to her and the children. He did not resist the orders sought by the wife at any stage and, in fact, there was some evidence that he was prepared to allow her to achieve her desired outcome by default.

The wife gave unchallenged evidence that she and her family made the following contributions:
·       She received $16,000.00 cash as an insurance payout when her car was written off in 1986;
·       She was the major homemaker and carer for the children;
·       Cash from her parents in an agreed amount of approximately $400,000.00;
·       Her parents provided accommodation and met the living expenses of the family in Indonesia;
·       She has been the sole carer for D since she was one and a half years of age.
The wife conceded that the husband or his family made the following contributions:
·       His mother purchased the Suburb R property;
·       He received an inheritance in an unknown amount in 1993;
·       He paid the mortgage and outgoings in respect of the Suburb R property, school fees and some living expenses after separation;
·       He worked sporadically and earned income from employment.
Her unchallenged evidence was that the husband’s two business ventures failed, leaving debts which she paid for from funds provided by her parents.
The wife is 46 years old and has been out of the paid workforce for approximately 25 years. She is currently undertaking study for a certificate at TAFE, which she is due to complete in June 2012. If she is able to finish this course, the wife hopes to work in retail during school hours. Her unchallenged evidence, however, was that D is not coping with being collected from school by her brother V, rather than the wife. In these circumstances she expressed a concern that she may have to abandon her studies.
As noted, subpoenaed documents tendered in evidence indicated that the husband earns a salary of approximately $80,000.00 per annum. The wife believes that he is re-partnered and that contention appears to be supported by the fact that he operates a joint bank account with “[A. AA].”
As noted, D was diagnosed with autism when she was one and a half years old. Her prognosis is presently unknown to the wife, but she will require a high level of care for several years at least into the future.
These considerations indicate strongly that the wife’s future needs greatly exceed those of the husband. In my view she would be entitled to a reasonably substantial adjustment pursuant to section 75(2).
In all of the circumstances known to me, I conclude that the orders for settlement of property as sought by the wife could be regarded as a just and equitable outcome to the proceedings. The wife will have the security of an unencumbered home for herself and D and the husband will be afforded some 20 months to arrange for the discharge of the Westpac Bank mortgage. Obviously the husband is in employment and had been extended credit by banks. I will make orders for alteration of property interests as sought by the wife.

CONSIDERATION – SPOUSE MAINTENANCE

The wife’s only income is a Centrelink benefit, which must be disregarded for present purposes, and child support which she receives only from the husband’s annual income tax refund. It is clear that she established a need, thus the issue is whether the husband has the capacity to pay spouse maintenance of $250.00 per week.
It seems to me that I am entitled to find that the husband has the capacity to pay the sum of $250.00 per week to the wife, in circumstances where he elected to make no disclosure whatever as to his financial circumstances. Further, the wife’s unchallenged evidence was that he signed a copy of her application in the presence of two witnesses on 31 March 2012, so as to indicate his agreement to these proposals. One such proposed order was that he pay spouse maintenance of $250.00 per week. For these reasons, I will make an order for spouse maintenance as sought by the wife.

CONSIDERATION – COSTS

As noted, the wife’s application that the husband pay her costs on an indemnity basis was not included in the document which the husband signed on 31 March 2012. The wife has no funds from which she could meet her legal costs, which I was informed amount to some $23,000.00.
The husband could have finalised the proceedings by way of consent orders at any time after he was served with the wife’s application in August 2011. Instead, he elected to put her to the expense of preparation for and conduct of an undefended hearing. In these circumstances, I consider it appropriate that the husband pay the wife’s costs of an incidental to the proceedings.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 26 April 2012.

Associate:

Date: 26 April 2012

[2012] FamCA 262

26 April 2012

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Costs

Remedies

Injunction