Young and Young and Ors
[2009] FMCAfam 965
•11 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YOUNG & YOUNG & ORS | [2009] FMCAfam 965 |
| FAMILY LAW – Parenting – undefended proceedings – sole parental responsibility. FAMILY LAW – Property – undefended proceedings – non-disclosure – assessment of contribution – s.75(2) factors – just and equitable order. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| A & Z [2006] FamCA 179 Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Norbis v Norbis (1986) 161 CLR 513 Pierce v Pierce (1998) FLC 92-844 Weir (1993) FLC 92-338 Williams & Williams [2007] FamCA 313 |
| Applicant: | MS YOUNG |
| First Respondent: | MR G. YOUNG |
| Second Respondent: | MR I. YOUNG |
| Third Respondent: | MR A. YOUNG |
| File Number: | SYC 7813 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 6 July 2009 |
| Date of Last Submission: | 6 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batey |
| Solicitors for the Applicant: | York Family Law |
| Counsel for the first Respondent: | No appearance |
| Solicitors for the first Respondent: | No appearance |
| Counsel for the second Respondent: | by consent |
| Solicitors for the second Respondent: | Oxford legal |
| Counsel for the third Respondent: | by consent |
| Solicitors for the third Respondent: | Oxford legal |
ORDERS
The children of the marriage:
(a)[W] born in 1998;
(b)[X] born in 2000;
(c)[Y] born in 2002; and
(d)[Z] born in 2004
live with the wife.
The wife have parental responsibility for the day to day care, welfare and development of the children.
The wife have sole parental responsibility for the long term welfare and development of the children.
There be no Orders in relation to spend time with between the children and the father.
Forthwith a Registrar of the Federal Magistrates Court or the Family Court be appointed on behalf of the husband and sign all necessary documents to transfer to the wife all of the Husband’s right title and interest in the property known as and situated at Property G in the State of New South Wales being the whole of the land in folio identifier 176/234436 subject to the mortgage thereon.
Within 30 days from the date of these Orders, the wife be responsible for and refinance the mortgage secured over the Property G home.
Within 30 days from the date of these orders, the husband pay to the wife the sum of $205,000 being:
(a)The $175,000 owing to the wife’s parents for the failed business; and
(b)$30,000 the husband withdrew from the Mortgage account by forging the wife’s signature and increasing the mortgage facility.
Contemporaneously with the Husband’s compliance with Order 7 hereof, the wife indemnify and keep the Husband indemnified in relation to the debt owing by the Parties jointly to the wife’s parents.
The wife be declared the sole legal and beneficial owner of all other property in her possession, custody or control or in her personal name including but not limited to bank accounts, superannuation, bank accounts, motor vehicles and any property.
IT IS NOTED that publication of this judgment under the pseudonym Young & Young is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7813 of 2007
| MS YOUNG |
Applicant
And
| MR G. YOUNG |
First Respondent
| MR I. YOUNG |
Second Respondent
| MR A. YOUNG |
Third Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for both parenting and property orders. The applicant wife is 32 years old. The respondent husband is 39 years old. The husband and the wife were married in 1997. They separated at some time in 2004 but remained living under the same roof in the matrimonial home. Physical separation took place during 2005. There are four children of the marriage: [W] aged 11, [X] aged 9, [Y] aged 6 and [Z] aged 4.
In about November 1999 the parties purchased the former matrimonial home at Property G. Throughout the marriage the husband and wife were involved in a number of businesses which they owned and operated. In 2003 the husband purchased a business with his brother Mr I. Young, “[P]”, which has become the subject business of these proceedings. In 2005 the husband left to Lebanon for a number of holidays. Since 2005 the husband’s exact whereabouts have been unknown though it appears that he is residing in Lebanon. The hearing proceeded on an undefended basis.
The second and third respondents are the first respondent’s brothers. For reasons that will be explained below they were joined to these proceedings in respect of the property application although final consent orders have now been entered into between the applicant and the second and third respondents.
Procedural history
I set out below the rather extensive procedural history of this matter. The matter first came before me on 22 November 2007 and I made orders for substituted service, an airport watchlist order and a restraint on the husband approaching the matrimonial home. I reproduce the order for substituted service below.
1. That personal service of the Initiating Application, Financial Statement and substantive Affidavit of the wife filed herewith be dispensed with.
2. That substituted service order be made of the Initiating Application, Financial Statement and Affidavit to be served on the husband’s brother Mr I. Young or by delivering the documents referred to in Order 1 above addressed to the Husband care of the business known as [P] at [address omitted], within seven days.
The matter was mentioned on 1 February 2008 and on 29 February 2008 the second respondent was joined to the proceedings. The matter was mentioned on 25 March 2008, 6 May 2008, 23 July 2008 and on 14 August 2008 the third Respondent was joined to proceedings. Over the course of these dates parties were granted leave to view various subpoena, documents were provided to the applicant by the second and third Respondents and a single expert, Mr P, was appointed to value the business that had been owned by the first, second and third respondents.
The matter returned before me for mention on 27 January 2009,
16 February 2009 and on 3 April 2009 the matter was set down for final hearing for 6 July 2009. On 27 May 2009 the matter was further mentioned and consent orders were made for various injunctions on the second and third respondents.
On 6 July 2009 I made final consent orders between the applicant and the second and third respondents. These orders provided for a payment of $78,355 to the wife, representing the Husband’s share of the business, and also the making of various restraints on the second and third respondent pending the making of the payment including restraints on overseas travel and dealing with the property of the business.
The respondent husband has failed to participate in these proceedings. He has never appeared before me nor has anyone appeared on his behalf. He has not filed any documents. Various attempts at service have been made and at all times up until I made these orders it was open to the first respondent to produce evidence to the Court and respond to the application. For whatever reason he has chosen to not do so. I am satisfied that he is aware of these proceedings. With respect to proceedings between the applicant and the respondent the matter proceeded on an undefended basis on 6 July 2009. I heard submissions from Mr Batey, counsel for the applicant wife, and made the orders sought on 6 July 2009. I now provide these reasons.
Issues
The following issues arose in this matter:
a)Should the wife have sole parental responsibility for the children?
b)What time, if any, should the husband spend with the children?
c)What is the pool of assets and liabilities and what is the effect of the husband’s non-disclosure?
d)How should contribution be assessed, as at the date of marriage, at separation and at the date of final hearing?
e)Should there be an adjustment under s.75(2) in favour of the wife, and if so, for how much?
f)What is the just and equitable order to make in the circumstances of this case?
Applicable law
This matter proceeded to an undefended hearing. The Full Court’s decision in A & Z [2006] FamCA 179 at paragraphs 54-73 contains a comprehensive discussion about the procedure to be adopted at an undefended hearing.
Parenting
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Property
The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
One of the legal issues that arises is whether I should adopt a global or asset-by-asset approach to contribution. The authority in this regard is, the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to me, in part or in whole. My discretion in this regard should be exercised having regard to the facts of this case.
Another issue in this case is how, precisely, I should weigh and assess the initial contribution of the parties in bringing property into the marriage. In this regard, I need to consider the decision of the Full Court in Pierce v Pierce (1998) FLC 92-844. A useful recent decision of the Full Court examines its earlier decision in Pierce v Pierce together with a later case. In Williams & Williams [2007] FamCA 313 the Full Court states as follows at paragraphs 26, 27, 28, 29 and 32:
26. We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
27. In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:
…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
28. The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:
In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
29. Pierce v Pierce was a case in which the husband brought in $200,000 cash into the relationship. He applied that money towards the purchase of a matrimonial home. He was employed throughout the marriage and supported the wife who, whilst in some paid employment primarily attended to domestic tasks and taking care of the children. The Full Court assessed the parties’ respective contributions to a pool of $320,000 as 70 per cent in favour of the husband and 30 per cent in favour of the wife at the end of a 10 year relationship.
32. In Hunt v Zuryn (2005) FLC 93-226; (2005) 34 Fam LR 169 the Full Court (Kay, May and Boland JJ) allowed an appeal in a property case where a pool of assets of $1.12million had been assessed for contribution purposes as 75 per cent in favour of the husband and 25 per cent in favour of the wife. The Court in allowing the appeal indicated that an assessment of 75:25 fell outside the realms of an acceptable range saying at 79,730; 170:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.
Accordingly, I must not only identify the contributions of each party, but also assess the weight to be attributed to these contributions having regard to many factors including what has occurred afterwards.
A significant issue in this matter was the alleged non-disclosure of the First Respondent. Attempting to deal with non-disclosure often puts the other spouse to considerable difficulty with regards to investigating their financial affairs. The Full Court in Weir (1993) FLC 92-338 at 79,593–4 made the following statement regarding the duty to disclose and the Court’s powers where non-disclosure has been found:
This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti (1986) FLC 91-759, and Mezzacappa and Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature…
We appreciate that this is something of a broad brush approach, but, as we have said, where there is clear evidence of non-disclosure as there was here, the Court should not be unduly cautious about making findings in favour of the other party. It has been said by one commentator (O'Ryan and Broadfoot, 5th National Family Law Conference Handbook, p 249) the failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties, to properly assess contribution, or to properly assess s 75(2) factors.
Parenting
Evidence
The evidence of the wife consists of her own affidavit and financial statement filed 30 June 2009, affidavit of Mr V filed 30 June 2009 and an affidavit of Mr G filed 30 June 2009. The evidence of the wife indicates that the husband left Australia for Lebanon at some time in February 2005. Initially this was for a holiday but it appears that throughout 2005 the husband spent very little time in Australia. There has been very little contact between the husband and the wife since this time. The wife is presently unaware of the whereabouts of the husband but is aware of two apartments owned by him in Lebanon. There has been an airport watchlist in place for the husband at all points of arrival and departure in Australia since 22 November 2007 and there is no evidence before the court to suggest that the husband has tried to enter or leave Australia since that time.
In respect to the parenting side of the matter the wife’s evidence is somewhat vague. It is clear that all four children reside with the wife and have done so since separation. It is unclear what arrangements were in place for the husband to spend time with children following the physical separation of the parties in 2005. It seems likely that the husband has not seen the children since at least 2006, and possibly earlier. The wife gives evidence at paragraph 27 of her affidavit that from time to time the children do speak with the husband by telephone but this is on an irregular basis.
Section 60CC considerations
I must now consider the best interests of the children. Section 60CC provides the framework for consideration.
a)Section 60CC(3)(a): There are no views of the children before the court.
b)Section 60CC(3)(b): It is unclear what relationship exists between the husband and the children. It certainly appears that since 2005 the children have not lived with the husband and there is no evidence of him having spent time with them. There is some evidence of telephone communication between the husband and the children but the frequency of this appears sporadic. The children have continued to reside with the wife in the former matrimonial home. Paragraph 29 of the wife’s affidavit suggests there is a financial and most probably emotional support network around the wife and the children consisting of the wife’s siblings, parents and more recently her new partner. Although I can make no findings with regards to these people and their relationships with the children it would seem likely that they form a supportive nexus of family around the wife and children.
c)Section 60CC(3)(c): There is very little evidence of either parents’ attempts and efforts to facilitate and encourage any type of relationship between the children and the other parent. All that is known is the wife’s evidence that she facilitates the children calling the husband when he so requests.
d)Section 60CC(3)(d): The husband does not seek any orders with regards to the children. No change of circumstances has been indicated on the wife’s evidence or proposed orders and despite any orders I make past conduct of the parties in this matter suggests that the husband will continue to remain uninvolved in the lives of his children.
e)Section 60CC(3)(e): Practical difficulty and expense of the children spending time with the husband is a real issue in this matter. The husband’s whereabouts are unknown. He is suspected to be residing in Lebanon. He provides very little in the way of contact details and it is unlikely that in the foreseeable future he will be forthcoming with information and a desire to increase contact with the children. There is no possibility for the children to spend time with the husband at this point in time.
f)Section 60CC(3)(f): The wife, since sometime in 2005, has been in all practical respects a single parent. There is evidence to suggest that the husband has not paid child support. The wife has had to shoulder the burden of emotional, physical and financial support for these children. She has no doubt been supported by family members. In the situation where one parent is left to carry such a burden with four young children for such a period of time there is little doubt of her capacity. The husband has failed to demonstrate his capacity to provide for the needs of the children since 2005. His complete lack of recent involvement in the lives of his children and failure to provide for their needs indicates that he either cannot provide or simply chooses not to.
g)Section 60CC(3)(g): The current parenting arrangement has been in place for some time. There appears to be no issue in regards to this factor.
h)Section 60CC(3)(h): Not applicable.
i)Section 60CC(3)(i): The attitudes’ to parenthood of each parent can best be assessed by their actions with respect to their care and support of the children. The husband has been wholly uninvolved with the children for some time. There is no evidence of support offered by him. The wife has been the children’s sole carer in all matters since most probably 2005, and at least 2006.
j)Section 60CC(3)(j): Issues of family violence are raised in the evidence of the wife in paragraph 26 of her affidavit.
In summary, my assessment of s.60CC factors leads to the conclusion that the husband’s absence, and lack of material, make it difficult to assess his role, and what benefit he can be, in the lives of his children. This absence and lack of support for at least the last 3 years makes it difficult to accept anything other than the wife’s concerns and proposed orders.
Parental responsibility
The wife seeks orders for sole parental responsibility. Section 61DA provides the presumption for equal shared parental responsibility. Exceptions include where situations of abuse or family violence exist or where the court considers it not in the best interests of the children for the parents to have equal shared parent responsibility.
The wife gives evidence at paragraph 26 of her affidavit filed 30 June 2009 of incidents of physical violence during the marriage in the presence of the children. One such incident alleges the use of a knife. Although this evidence is vague and unspecific in circumstances where it is uncontested I have little choice but except it.
The husband’s long absence and lack of involvement with the children is a significant factor to consider. His lack of participation in these proceedings has demonstrated to the court his inability or unwillingness to communicate with the wife in regards to decision making or any other matter. In circumstances of prolonged absence and non-involvement by the husband in the lives of the children I find it is not in the best interests of these children for the presumption to apply. I will therefore order the wife have sole parental responsibility.
Summary
I find the orders sought by the wife are the appropriate orders to make. It is possible that the husband in the future may return to Australia and seek to resume contact with his children. If he were to do so it is certainly open to him to make an application to the court. But on the evidence that comes before the court it is impractical and not in the best interest’s of these children that orders be made for the children to spend time with the husband.
Property
The wife seeks orders that the husband’s interest in the former matrimonial home be transferred to her, she be responsible for the mortgage and any refinancing, the husband pay to the wife monies owing to the wife’s parents and an amount the husband withdrew from the mortgage account. The wife also seeks the she be declared the sole owner of all property currently in her possession.
Non-disclosure
This matter proceeded on an undefended basis. As I have pointed out at several junctures throughout these reasons, the husband has failed to provide any documents or material to the court. I can make no other finding other than that the husband has wholly failed to make full and frank disclosure and I so find. Failure to make full disclosure, particularly in financial matters, requires the court to rely heavily on the evidence from the party who has provided the more complete picture to the court. The court is then compelled to rely on inference to fill the gaps in evidence. This may, of course, lead to an outcome that would have been different had there been full and frank disclosure. But the onus is on the parties themselves to make full disclosure of their circumstances to the court and thus remove the discretion of the court to make adverse inferences as a direct result of the non-disclosure. In this matter where there is simply no disclosure from the husband I am guided by the case law in Weir to “not be unduly cautious about making findings in favour of the innocent party.” Where the wife provides evidence on financial matters the conclusion to accept that evidence is irresistible.
Pool of assets
The husband has not filed any material in this matter. To the extent that the wife provided evidence before the court I have no choice but to accept it as uncontested evidence. The wife provides evidence of the following assets and liabilities.
Assets
Value
1
Property G
$400,000
2
Toyota Yaris
$15,000
3
One half interest in [P] business
$78,355
4
Apartment in Lebanon ($US26,000)
E$29,000
5
Apartment in Lebanon ($US30,000)
E$33,000
TOTAL ASSETS
E$555,335
Liabilities
6
Westpac Bank mortgage secured over the house
$354,000
7
Mr G and Mr R re failed business
$175,000
8
Mr G and Mr R re financial assistance
$5,000
9
Mr S re new business venture
$50,000
10
Mr S and Mr T re mortgage repayments and living expenses
$40,000
11
Mr V re mortgage repayments and living expenses
$25,000
TOTAL LIABILITIES
$649,000
NET ASSETS
-$93,645
In regards to the property pool I make the following observations and findings:
a)Item 3 is agreed between the wife and the second and third respondents as the husband’s remaining share in the business “[P]”. This amount, and payment thereof, is covered by orders made by consent on 6 July 2009. It is, however, an asset of the parties which I will need to take into account.
b)Items 4 and 5 are properties the husband has allegedly purchased in Lebanon. The actual value of these properties is unknown. The wife gives evidence of having transferred $44,000 in total to the husband in Lebanon in 2005 for the purchase of apartments and I accept that these transfers occurred. I accept the estimated values of the apartments given by the wife and agree they should be added to the balance sheet. I note that even if I had not been willing to add these values to the balance sheet I still consider the money transferred to the husband as property of the parties that would need to have been added back into the property pool.
c)There is evidence in the affidavits of the wife and her father of the debts referred to in items 7 and 8. How the total in item 7 is calculated is not entirely clear. $100,000 comes from the failed trolley business referred to below. $22,000 is for fees and interest incurred by the wife’s parents in respect of the loan taken against their home to purchase the same business. The wife is presently working for a business she owns with a cousin known as “The [L] Pty Ltd” from which she does not yet draw a wage. She does receive some income from Centrelink. There is evidence to support (particularly paragraph 9 of the affidavit of Mr G) the proposition that the wife’s parents have been financially supporting the wife and the children since possibly 2005 and at least 2006. Her financial situation appears to be somewhat precarious and she and the children have no doubt been in need of support from those around them. I accept that the wife’s parents have contributed financially to the wife and the children and that this is most likely the basis for the remainder of the $175,000 at item 7. I am prepared to accept the figures asserted at items 7 and 8.
d)Item 9 refers to a loan from the wife’s brother to set up the business “The [L] Pty Ltd”. The wife gives evidence that this business was started about 10 months ago. This is clearly a post-separation liability. There is no corresponding figure on the balance sheet as to the value of this business. In these circumstances I am not prepared to take this figure into account.
e)Item 10 presumably refers to monies loaned by the wife’s brothers for general living expenses and payment of the mortgage. Paragraph 29 of the wife’s affidavit refers to financial assistance from her brothers. Although no figure is asserted in the evidence I am prepared to accept that this financial assistance has indeed taken place. I have no evidence to question the quantum of this assistance and I therefore accept it. There is no doubt that since at least 2006 significant financial obligations have fallen solely on the wife and I accept that family members have, to a large extent, assisted the wife.
f)Mr V gives evidence in his affidavit of the loan at item 11 made to the wife with respect to mortgage repayments and general living expenses. Mr V is the partner of the wife and has lived in the home at Property G since about January 2008. Although this figure may merely consist of his share of the living and housing expenses I have no reason to dispute the figure and for the same reasons listed above I accept it.
Having excluded item 9 on the balance sheet I therefore find an overall property pool of -$43,645.
Contribution
The wife gives evidence that at the commencement of the marriage neither the husband nor the wife owned any significant asset and contribution was therefore equal. I accept this.
For the first five years of the marriage the parties lived with the maternal grandparents rent-free. It appears that at some time in the first 2 years of marriage the husband set up a sweet shop business with a partner. The husband’s share of this business cost $20,000 and was eventually sold for $25,000.
In 2000, or thereabouts, the husband and the wife purchased a trolley business for $165,000 with monies borrowed from the wife’s parents. This business was unsuccessful and was sold after a year for $75,000 - $65,000 of which was returned to the wife’s parents and $10,000 used to pay off debts of the parties. The wife gives evidence that her parents funded this business against the security of their home and along with the shortfall in repaying the debt of $165,000 her parents also had to pay penalties and interest of about $22,000 during the year the business was owned by the parties.
The matrimonial home was purchased in 1999 for $290,000. $232,000 was borrowed from Westpac and the remainder of the purchase price came from the parties’ savings. The wife gives evidence about a number of cars being bought during this time and the mortgage facility over the home being extended to pay for this. In 2004 the mortgage facility was further extended to cover renovations for the matrimonial home and for the business that the husband had purchased with his brother Mr I. Young in 2003 called “[P]”. A short time later another brother Mr A. Young joined the business as a partner and paid $20,000 into the business.
The wife gave evidence in her affidavit at paragraphs 15, 16 and 17 that the husband made several trips to Lebanon in 2005. On these trips he purchased 2 apartments in Lebanon which are listed at items 4 and 5 of the balance sheet. The apartments were funded through the parties’ funds as transferred by the wife and referred to above.
In 2005 the wife alleges that husband purchased 5 [vehicle] plates and 4 [vehicles]. The value of this business, if still owned by the husband, is unknown.
The wife gives evidence at paragraph 13 of her affidavit that in 2006 the husband forged her signature on an application for finance to increase the mortgage by $30,000.
In 2006 the wife and husband sold 2 motor vehicles (BMW and Prado) and purchased a VW Passat for the wife’s use. The husband took the net proceeds of these transactions totalling approximately $40,000. The VW Passat was subsequently stolen and the wife used the insurance payout of $10,000, with other funds, to purchase the Toyota Yaris.
In evidence in these proceedings is a report by an accountant,
Mr P, which values “the business” (“[P]”). The most recent valuation of the business was in May 2009. It seems, though not clear on the evidence precisely when, that Mr G. Young disposed of his interest in the business at some point after 2005 and probably during 2007. The Applicant and the second and third respondents have agreed to a payment to the wife in the sum of $78,355 which represents the remaining interest the husband has in the business. Due to that agreement it is not necessary for me to further explore the business or matters relating to the second and third respondents except to say that there is evidence from the wife that she worked at the business for one month shortly after the husband left for Lebanon and thus made a contribution to the same. She was paid $2,000 for this month.
Assessment of contribution
The above factual information gives background to the more salient features of the parties’ financial history. I have made a finding that both parties entered the marriage on an equal footing with regards to contribution. Throughout the marriage the parties together, or the husband alone, operated a variety of businesses. It appears the wife was the primary carer for the children but was able to at times assist in the running/workings of the various businesses. As at separation I assess contribution between the parties as being equal.
Since at least 2005 when physical separation occurred the wife has been the sole carer for the children. It also appears that from about this time the husband has been withdrawing sums of monies from the assets of the parties for his own personal uses, some disclosed or known and others not. The wife, through her own efforts, her family and partner, has been the sole source of financial support for the children since 2005.
The parties were married in 1997 and physically separated in 2005. I have found throughout this period contribution to be equal. Following this time to the final hearing I find that the wife has made a significant contribution to the property of the parties. I therefore find contribution at the date of final hearing to be 75% to the wife and 25% to the husband.
Section 75(2) factors
I turn now to s.75(2) considerations. Both parties are at an age where they have capacity to earn and continue to earn an income. There are no disclosed health factors.
The husband has 2 apartments in Lebanon and a [transport] business from which to derive an income. Throughout the marriage he has run a number of businesses and appears from the evidence to have the skills and resources to continue to earn a reasonable income. The wife jointly owns and runs a business which is yet to produce an income. The wife has the full-time care of the children and thereby her ability to seek full-time employment is limited. She is, however, assisted by her mother who cares for the children when the wife works. All four children in the wife’s care are under the age of 18 with the oldest child being 11 years old. The wife is in receipt of some government support payments of approximately $650 per week.
The partner of the wife, Mr V, lives with the wife and children in the former matrimonial home. There is little evidence with regards to his financial affairs and contribution to the household besides the provision of a loan to the wife. I presume he will financially contribute to the household based on his ability to provide finances to the wife to pay the mortgage and provide for living expenses.
The only other relevant factor is that the husband appears to have not paid any child support and it seems unlikely he will do so in the future. The wife estimates his present child support debt to be around $60,000. Annexure B to the wife’s affidavit is a notice of decision for child support payable for the period 1 January 2006 to 16 January 2007. The annual rate of child support for this period was increased to $16,028. If the husband has not paid child support from at least this period and the annual rate of child support payable remained consistent, it is possible that the debt could be as high as $60,000.
From the conduct of the husband and his financial contribution to the children it appears unlikely that he will assist the wife in their support in the future. Considering all of these factors I consider the appropriate adjustment to make is 25% in favour of the wife giving her a total of 100% of the available property.
Just and equitable order
On the wife’s proposed orders she would receive:
Property G
$400,000
Toyota Yaris
$15,000
One half interest in [P] business
$78,355
Payment from the husband
$205,000
Westpac Bank mortgage secured over the house
($354,000)
Mr G and Mr R re failed business
($175,000)
Mr G and Mr R re financial assistance
($5,000)
Mr S and Mr T re mortgage repayments and living expenses
($40,000)
Mr V re mortgage repayments and living expenses
($25,000)
Total
$99,355
The husband would then receive the following:
Apartment in Lebanon ($US26,000)
E$29,000
Apartment in Lebanon ($US30,000)
E$33,000
Taxi business
unknown
Payment to the wife
($205,000)
Total
-$143,000
There is no doubt from the evidence of the wife that the husband has withdrawn sums of money from the property of the parties. The wife is able to point out many of these withdrawals (for example the $40,000 taken on selling the 2 motor vehicles in 2006, $30,000 from the mortgage in 2006, $44,000 in transfers to Lebanon in 2005 for purchase of the apartments). However, the court is left with the impression that there are possibly more of these withdrawals that neither the court or the wife know about. The husband has failed to participate in these proceedings. He has failed to make any financial disclosure. The court is left with the task of dividing a pool of property in which the whole quantum of assets is known only to the husband. As I have said there is the impression that the husband is in possession of further property and assets that, had he disclosed, would have completed the picture for the court. He has chosen not to make any disclosure. It is quite possible that the orders sought by the wife do not actually leave her with a property split of 100% in her favour. But I am satisfied on the evidence that has been provided to the court that the orders sought by the wife are the just and equitable orders to make.
I am satisfied that the orders sought by the wife are just and equitable in circumstances of uncertainty created by the husband’s non-participation in the proceedings and non-disclosure. It is possible that the orders will be very difficult to enforce. Even if the husband were to make the payments to her she seeks, it would only cover the repayment of debts incurred anyway.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 11 September 2009
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