Yu and Teoh

[2013] FamCA 910

FAMILY COURT OF AUSTRALIA

YU & TEOH [2013] FamCA 910

FAMILY LAW – PROPERTY – Undefended hearing – no appearance by husband – Court satisfied husband given appropriate notice and for matter to proceed on an undefended basis – consideration of contributions by parties – consideration of s 75(2) factors – just and equitable to make orders proposed by wife

Family Law Act 1975 (Cth) ss 75(2) and 79

APPLICANT: Ms Yu

RESPONDENT: Mr Teoh

FILE NUMBER: LNC 524 of 2012

DATE DELIVERED: 10 September 2013

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 10 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Welsh

SOLICITOR FOR THE APPLICANT: Philip Welsh Barrister and Solicitor

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. Within thirty (30) days of the date of this order the husband sign all documents and papers to transfer to the wife the whole of his interest in property at B Street, Suburb C Tasmania to the wife.

2. Contemporaneous with the transfer referred to in these orders, the wife shall discharge the mortgage to the National Australia Bank and discharge the husband’s personal covenants in relation to the mortgage and associated mortgage loans.

3. The wife shall pay and indemnify the husband in relation to the loan to the wife’s brothers namely Mr D Yu and Mr E Yu.

4. As between the husband and the wife, it is declared that the wife has the sole title to her interest in:-

   (a)Property at F Street, G Town, Country H;

   (b)Motor vehicle 1 registration no. …;

   (c)Motor vehicle 2 registration no. …;

   (d)Household furniture and effects;

   (e)Money in banks, credit unions, savings accounts or investments in the sole name of the wife; and

   (f)Her superannuation entitlement.

5. The husband shall be entitled, as against the wife, to the household furniture and contents formerly used by the parties jointly but now in possession of the husband, any monies at banks, credit unions, savings account or investment accounts in the name of the husband including those set out by the wife in her affidavit filed 14 August 2013.

6. The parties shall each sign all necessary documents to do all such things reasonably required to give effect to the terms of these orders.

7. If the husband does not sign those documents within fourteen (14) days from the request to him in writing by the wife, to his last known address, the wife solely shall have power to sign all necessary documents and do all acts and things reasonable to give effect to the transfer of the title to the Suburb C property to the wife and the discharge of the mortgage provided always that such discharge shall release the husband from her personal covenants.

   IT IS DIRECTED

8. A copy of these be forwarded by ordinary pre-paid post and by email to the husband’s last known residential address and his last known email address.

9. The wife and/or solicitor file an affidavit of service of such notice to the husband on or before 9 October 2013.

   IT IS FURTHER ORDERED

10. Leave be granted to the husband to apply in relation to these orders including to have the orders vacated and enable him to participate in these proceedings provided such application is filed, with an affidavit in support, and a statement of financial circumstances, on or before 4.00pm 9 October 2013.

11. The operation of these orders is stayed until 9 October 2013.

12. All oustanding applications be dismissed.

    IT IS FURTHER DIRECTED

13. A copy of the reasons for these orders be taken out and placed on the court file.

    IT IS CERTIFIED

14. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yu & Teoh 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 HOBART

FILE NUMBER: LNC 524 of 2012

Ms Yu

Applicant

And

Mr Teoh

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Ms Yu (‘the wife’) and her husband Mr Teoh (‘the husband’) in respect of property between the parties.  The wife seeks orders for the transfer of a property in Suburb C in Tasmania to her subject to her discharging a liability to the National Australia Bank.  She also seeks orders in general terms that she retain ownership as against the husband in relation to a property in which her father resides in Country H, some motor vehicles, household furniture and money in her name, and presumably superannuation.

2. The wife also seeks orders that the husband retain his furniture and other property in his name.  She sought a further order that the Registrar be appointed to transfer the property to the wife pursuant to s 106A of the Family Law Act 1975 (Cth) (‘Act’).  It is significant that the husband has not, in any meaningful way, contributed to these proceedings of which I will detail later in these Reasons.  I see no reason why the wife cannot be appointed to sign on his behalf having regard to the property being the subject of the mortgage and the inherent unlikelihood of a bank consenting to a discharge of mortgage over the house without that mortgage being paid out.  I intend to make orders in that respect.

3. The material which I have before me is the amended application filed 14 August 2013 and an affidavit of Mr I a valuer filed the same day.  A detailed affidavit of the wife filed the same day and an affidavit of Ms J, an employee of the wife’s solicitors, in relation to service of documents, and the order made by me on 17 July 2013.  In addition a letter was tendered by the solicitor for the wife dated 25 July 2013 showing compliance with direction 5 made by this Court on 17 July 2013.

4. It included notification that this matter may well be dealt with on an undefended basis today.  It enclosed a copy of the order made by me on 17 July which had in it the Genesys telephone number.  It also contained other notifications which were set out in oral form which were set out in the letter tendered in this hearing. 

5. These proceedings were commenced on 27 March 2013 and by way of an application for property orders supported by an affidavit, a statement of financial circumstances to which I have also had regard.  Those documents were personally served upon the husband by a licensed commercial process server on 28 March 2013 at 8.05 pm.  An acknowledgement of service was not signed as the person declined to do so.  In accordance with that application the proceedings came back to this Court before a registrar on 16 May.  There was no appearance by the husband.

6. The proceedings came back before a registrar of this Court on 26 June, 3 July and before me on 15 July 2013.  On 15 July it was adjourned to 17 July 2013 as that was the correct listing day.  There was no appearance by the father on that day.  Accordingly on 17 July 2013 I made the directions set out in my order to notify the husband of these proceedings.  I note that the Exhibit to which I have referred to earlier and that the order was forwarded by ordinary prepaid post to the father’s last known residential address in Tasmania.  The Exhibit provided by the wife confirms that the notification of the date was forwarded to his email address.

7. When the matter was called this afternoon there was no appearance in Court by the husband and he has made no appearance on the telephone link.  I am satisfied on balance that the husband has had notice of these proceedings and has chosen not to participate in the proceedings and that in all of the circumstances it is appropriate for this matter to proceed upon an undefended basis. 

8. It is apposite to set out a background of the parties.  The wife was born in 1969 and is shortly to celebrate her 44^th birthday.  The husband was born in 1968 and is soon to celebrate his 45^th birthday.

9. The parties were both born in Country H and married in Country H in 1989.  The wife moved to Australia in January 2006 and in the case of the husband January 2007.  There are three children of the marriage.  Two of whom to which the Act applies, namely, B born in 1995 who was 17 almost 18, and L born in 2000 who is 13.  There is an elder child of the marriage, Ms M, who is aged 22.

10. The parties separated in December 2009 and their marriage was dissolved by an order made in the Federal Magistrates Court (as it was then known) in November 2012.  I have set out the history of these proceedings earlier in these Reasons.  In the wife’s affidavit filed 14 August 2013 she provides the following unchallenged evidence: that at the time of the marriage she had no property; that the husband had a car and she didn’t know whether it was owned by he or his parents.  For a number of years she worked as an account clerk in Country H and was paid a very modest income.  She used this money to provide for herself and at a later time the children.

11. In 1993 the wife was involved in the husband’s family business and was paid a modest income.  The wife used her wages to pay for groceries, school fees and met her expenses and those of the children.  The husband earned about $4000 per month but did not inform the wife of how he kept his finances and she has no details as to how, why and where those funds were applied.  The implication is that the husband has funds in Country H which he has not disclosed to the wife or to this Court.

12. In the late 1990s or early 2000s the wife’s father transferred to the wife and her two brothers his property in Country H on the condition that he continue living there and pay the outgoings for the house.  The wife has a one-third interest in that property and her father remains in the property.  She says, and the unchallenged evidence is that she has made no financial contribution to the property however; it is property to which I am bound to have regard.

13. In 2000 the wife began working as a part time insurance agent and she was aware that the husband invested in various companies set up by his parents in Country H, the detail of which she has little knowledge.  In 2004 the wife saved enough money to buy a car for herself and in 2006 she moved to Tasmania to study and obtained student accommodation in Tasmania.  Initially the children remained in Country H.  In November 2006 the wife returned to Country H and was able to bring the children back to Tasmania.  She also sold her car and came back to Australia with $40,000 Australian dollars.

14. The wife lived off that money and used it eventually to buy a home.  In April 2007 the husband and wife purchased a property at Suburb C for $395,000.  They paid an additional sum of $5000 for furniture.  The wife borrowed $310,000 and the shortfall was made up by the remaining money from the sale of the car and money that was given to her by her brother and father.

15. The wife says that she used some money from the husband’s parents but she cannot recall the exact amount of money but thought it was somewhere between $40,000 and $50,000.  In November 2007 the wife obtained employment and she says, and it’s unchallenged, that she made all of the mortgage payments on the home.  She then obtained employment as an auditor with an accounting firm and used those wages to pay the mortgage.  She has paid all of the children’s expenses and she has received amounts from her family over the years.  She thinks it in the sum of about $55,000.

16. The wife annexed to her affidavit mortgage instalments showing how the mortgage was reduced by those capital payments.  She says that the husband was in Tasmania for limited amounts of time in each year and this is set out in paragraphs 38, 37 and 38 of her affidavit.[1]  When the husband was in Tasmania he would occasionally buy food and buy groceries for the household however, all of the bulk of the domestic homemaking and parenting was left to the wife.

    [1] Filed 14 August 2013.

17. Since she has moved to Australia the wife has purchased two motor vehicles.  In 2012 the wife and husband discussed a property settlement after their separation.  The wife says that she has endeavoured to engage with the husband in terms of the proceedings but without success.  The wife says she is in good health.  With respect to the three children of the marriage, although the elder child has just completed a Bachelor degree, the wife has continued to financially support them.

18. My task is first of all to determine whether it is appropriate to exercise the jurisdiction of the Court in relation to property.  Having regard to the circumstances set out in the wife’s affidavit including the separation and divorce of the parties it seems appropriate for me to exercise that jurisdiction. 

19. The next thing is to list the legal and equitable interest in property.  The asset pool is as follows:-

Former Matrimonial home Suburb C	$365,000
Motor Vehicle 1	$3,000
Motor Vehicle 2	$13,000
Furniture & contents	$10,000
Money in Commonwealth Bank - wife	$2,500
Money in husband’s bank	$472
Money in wife’s Commonwealth Bank Goldsaver account	$75,094
Money in husband’s Commonwealth Bank Goldsaver account	$86,087
Money in husbands Commonwealth Bank Netbank account	$3703
Wife’s superannuation entitlement	$18,370
Total	$577,163

1. There is a liability to the National Bank of $24,011 and a balance due to her brothers of $30,000 making a total liability of $54,000 leaving a balance of property of some $523,000.  In terms of the property there is no issue that I should have one pool having regard to the approach requested by the wife in terms of superannuation.  I intend to do so.  What is unclear is that is the extent of the property of the husband.  It is something of which the wife has little or no knowledge and which the husband has not made any endeavours to provide detail to the wife or to the Court.

2. In terms of contribution the parties have been married for a significant period of time.  The direct contributions as to finances on the house are as set out in the wife’s affidavit.  There was a modest contribution by the husband’s family, which I have alluded to earlier.  The balance of the direct financial contribution has been made by the wife and/or her family.  The wife’s contributions to her superannuation and her savings have been made by her and clearly the husband has made contributions to his savings.

3. The wife has been the primary carer of the children and has made a contribution as a homemaker housewife and mother as set out in her affidavit.  I am satisfied that she has made a significant contribution.  What is difficult in this case is to define the extent of the property of the husband.  It may be that he has hundreds of thousands of dollars in property in Country H or it may be that he has none.  I have to adopt - so it is not possible for the full extent of his property to be defined.  It is clear that he has in the banks in Australia about $90,000 to which the wife has referred to in her affidavit.

4. I will go back and in my reasons I will just do a note that the money in the bank accounts is that in the husband except for $2500 and those accounts total about $150,000 to $160,000 which would represent.

5. Which if the orders were made as sought by the wife would indicate an adjustment on contribution of 32 per cent to the husband and 68 per cent to the wife.  In terms of the other factors the wife is in good health.  There is no indication as to poor health on the part of the husband.  The wife has the care of the younger children of the marriage, albeit, the middle child is finishing year 12 this year and there is no indication as far as I can recall as to whether that child will be going to university.

6. The wife’s income is that of an accountant and she discloses in her financial statement an income of about $730 per week.  The husband’s income was about $48,000 per year when the wife last had access to it.  She does not know his capacity to work but he has demonstrated a capacity from time to time to work and the wife has a capacity to work.  As I said the wife has the care of the children of the marriage, two of whom have not attained the age of 18 years but one of whom will be attaining that age in the near future.

7. The wife’s commitments to support herself are as set out in her affidavit and financial statement.  She has a responsibility to support the younger child of the marriage and the middle child for the remainder of this year.  She receives some family tax benefit and education benefit for the children.  The standard of living of the wife it appears has remained similar from before separation to after separation.  There is no consideration of a s 75(2)(h) as the wife has already completed a course of training in Tasmania and further this order will not impact on the ability of any creditor to recover debts.

8. The marriage is a long marriage although the wife to her credit has retrained and adopted an income earning capacity after marriage.  There is no evidence of either party cohabiting with any other person and I have considered the property and the outcome of the property orders.  My task is then not to do these as separate factors but to consider all of the contribution and other factors as one.  There appears to be no reason to make any adjustment under section 75(2) of the other factors.

9. However, the orders that the wife seeks in all of the circumstances and particularly having regard to the husband’s failure to provide any detail of his assets, liabilities and income that the orders sought by the wife are just and equitable, and otherwise proper in all of those circumstances, and I intend to make those orders.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 10 September 2013.

Associate      :          

Date               :          10 September 2013