ZABALA & MEADOW
[2016] FCCA 3441
•21 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZABALA & MEADOW | [2016] FCCA 3441 |
| Catchwords: FAMILY LAW – Property orders – undefended – consideration of s.79(2) of the Family Law Act 1975 (Cth) – just and equitable – orders as sought by father. |
| Legislation: Family Law Act 1975, ss.61DA, 75(2), 79(2) |
| Applicant: | MR ZABALA |
| Respondent: | MS MEADOW |
| File Number: | MLC 6729 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 21 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lamb |
| Solicitors for the Applicant: | Cahill & Rowe Family Law |
| The Respondent: | No Appearance |
THE COURT ORDERS THAT:
PARENTING ORDERS
The Father have sole parental responsibility for the child X born (omitted) 2006 (“the child”).
The Father is permitted to apply for an Australian passport for the child without the consent of the Mother and the Department of Foreign Affairs and Trade (The Australian Passports Office) shall be directed to issue a passport in the name of the child to the Father in the absence of consent of the Mother.
The Father shall have sole parental responsibility for the child on the basis that he shall, except in the case of an emergency, notify the Mother as soon as reasonably practicable in writing, and not more than 21 days after, of any long term decision made in respect of the child.
The child live with the Father.
The child spend time and communicate with the Mother as agreed between the parties in writing in the event that the Mother returns to the Commonwealth of Australia.
The Father permit the child to communicate with the Mother by way of telephone, skype, viber, face time or email at any reasonable time the child desires to do so and the Father shall further facilitate the child receiving such communications from the Mother at any reasonable time.
The Father shall authorise any school at which the child may, from time to time attend, to provide to the Mother copies of all reports, newsletters, notices, photographs and other information relating to the child’s education to the Mother at the expense of the Mother.
In the event of a medical emergency concerning the child, the Father shall, as soon as reasonably practicable, inform the Mother in writing and provide to the Mother copies of relevant documents in respect of the medical emergency.
The Father shall notify the Mother within 21 days of any change in the contact details for the child including residential address, telephone number and email address.
PROPERTY ORDERS
The Husband retain, to the exclusion of the Wife absolutely, all of his right title and interest in the real property situate at and known as Property K, in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume (omitted) (‘the Property K property’).
The Husband be solely liable for and indemnify the Wife absolutely against all payment and liability in respect of the mortgage registered number (omitted) in favour of the (omitted) Bank secured against the Property K property.
The Wife retain, to the exclusion of the Husband absolutely, all of her right, title and interest in the land and/or property purchased through (omitted) or, in the alternative, in the event that a refund of deposit monies was paid to the Wife, that the Wife retain the balance of deposit monies.
The Wife retain, to the exclusion of the Husband absolutely, all of her right, title and interest in any land or property owned by her in (country omitted).
Unless otherwise specified and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party shall be solely entitled to the exclusion of the other to all superannuation and other employment based entitlements (if any);
(b)each party shall be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the Property K property being deemed to be in the possession of the Husband);
(c)monies standing to the credit of the parties in any account shall become the property of the account holder;
(d)insurance policies shall remain the sole property of the owner named thereon;
(e)each party shall be solely liable for and indemnify the other against any liability in their name and any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)any joint tenancy in any real or personal estate is hereby expressly severed.
AND THE COURT NOTES THAT:
Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Zabala & Meadow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6729 of 2016
| MR ZABALA |
Applicant
And
| MS MEADOW |
Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
These proceedings commenced by initiating application filed 19 July 2016. That application was then amended by amended initiating application filed 12 October 2016. The Court is satisfied there has been service of both applications upon the mother and that she has been afforded procedural fairness in respect of the orders which are sought by the father this day. The mother initially had a lawyer acting on her behalf. That lawyer filed a notice of withdrawal as lawyer on 29 September 2016. Thereafter the mother has been a litigant in person. The mother is currently residing in (country omitted). Although she had earlier indicated to the father that she would be returning to Australia prior to this date, she has not done so.
The orders which are sought on a final basis by the Applicant husband and father in these proceedings go both to parenting matters and property matters. The Applicant relies upon evidence which is contained in affidavits sworn by him on 15 June 2016, 12 October 2016 and 20 December 2016. There is also relied upon a financial statement sworn by him on 12 October 2016. There is further filed on his behalf an affidavit by Ms Lamb of 20 December 2016. The evidence establishes that there has been service of the relevant documents upon the mother. The orders as sought by the father are supported by the evidence as contained in his affidavits relied upon and financial statement. They are the orders which the Court shall make as final orders this day.
The mother was required by order of the Court made 6 September 2016 to make, file and serve a response to the initiating application together with an affidavit and financial statement by not later than 27 September 2016. The mother has not complied with that order. All extant applications on 6 September 2016 were adjourned to 26 October 2016 in the duty list. Order 4 of the orders made 6 September 2016 provided relevantly as follows:-
“In the event that the respondent wife fails to file material by 27 September 2016, that the husband should be permitted to seek leave to proceed to finalise parenting and property matters on an undefended basis on 26 October 2016”
When the matter came before the court on 26 October 2016 the Court made an interim order that the parties’ child, X born (omitted) 2006 (now aged 10 years) continue to live with the Applicant father. Otherwise, the Court did not proceed to hear the matter on an undefended basis. The Court afforded to the mother a further opportunity to participate in the proceedings given the Court was advised on 26 October 2016, by the Applicant, that the mother was out of the Commonwealth of Australia and in (country omitted). The orders made were as follows:-
“(1) The child X born (omitted) 2006 live with the Applicant father.
(2) All extant applications are adjourned to 21 December 2016 at 9.45am for final hearing as to property and parenting orders sought. In the event the mother fails to participate in the proceedings and fails to comply with order 1 of the orders made 6 September 2016 the father has leave to proceed to seek those orders as set out in his amended initiating application filed 12 October 2016 on an undefended basis.
(3) Service of these orders be effected upon the mother forthwith by the solicitors for the father and proof of service is required.”
As can be observed in the preceding paragraph, order 2 of the orders made 26 October required service of those orders to be effected upon the mother forthwith by the solicitors for the father and proof of such service was required. That proof is before the Court and contained in the affidavit of Ms Lamb of 20 December 2012.
The parenting orders which the Court will make this day effectively continue the residence arrangement of the parties’ child, which is living with his father. Further the orders provide for the father to have sole parental responsibility for the child. The presumption as set out in section 61DA of the Family Law Act 1975 (Cth) (‘the Act’) is rebutted pursuant to section 61DA(4) of the Act. There is evidence before the Court which satisfies the Court that the best interests of the child are advanced by the orders as sought by the Applicant father.
The parties married on the (omitted) 2005 in (country omitted) and separated on 1 January 2016. They had cohabitated for approximately six and a half years as the mother had remained in (country omitted) for approximately four years after the father returned to Australia following the marriage. Following separation the parties lived under the one roof. The mother then left the child in the care of the father in September 2016 and returned to (country omitted), her country of birth and citizenship. She remains residing in (country omitted) and is unavailable to the child and Applicant on the basis necessary to make decisions in respect of the child’s day to day and long term needs. Nor does she wish to so participate. The mother does however communicate regularly with her son via Viber on his iPad. Otherwise the mother has allowed the proceedings to proceed on an undefended basis, and advised the father that she wants nothing from him and that he “can have 100% access to X”. The father’s evidence is that he has been the primary carer and attachment figure for his son for many years.
The mother has failed to put any relevant evidence before the Court as to the parenting orders and property orders sought by the Applicant father. The Court is satisfied that the property orders it shall make this day satisfy s.79(2) of the Act which is that “(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. In essence, the Applicant receives the perhaps $5000 total equity in the various assets of the parties here in Australia, and no doubt that amount and considerably more will be subsumed in legal costs. The Applicant additionally retains his superannuation entitlements accrued from his employment as a (occupation omitted) which are approximately $79,000. The Court is unaware of the asset and superannuation position of the mother in (country omitted). The Court is unaware of the mother’s income as a (occupation omitted), both in (country omitted) and in Australia. The mother has failed to put any relevant evidence before the Court as to her financial position.
Contribution appears fairly equal between the parties save since the period of separation under the one roof which commenced on 1 January 2016. The husband has paid all outgoings and mortgage expenses with regard to the former matrimonial home and has solely been responsible for the payment of X school fees in the sum of $18,700 per annum together with books and uniforms. This school was chosen by the parties as suitable for their son. Section 75(2) of the Act matters favour the father in his support of the child, in the complete absence of any contribution from the mother. The father’s earning capacity would also be inferior to that of the mother.
The father’s income as a (occupation omitted) is in the vicinity of $1800 gross per week. The mother may well have income receipts which exceed that of the father. In the absence of material provided by the mother, and being material not known to the father, the best the Court can do is determine on the available evidence that the orders as sought by the father are just and equitable as between the parties. Final Orders will bring finality to the parties and enable the Applicant to plan for his future financial support and that of the parties’ child.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 19 January 2017
Key Legal Topics
Areas of Law
-
Family Law
0
0
0