ZAMAN & ZAMAN
[2018] FCCA 3460
•5 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZAMAN & ZAMAN | [2019] FCCA 3460 |
| Catchwords: FAMILY LAW – Property & parenting – leave to proceed undefended – no participation from husband – add backs. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC(2), (3), 72(1), 75(2), 79(2), 79(4) |
| Cases cited: In the Marriage of Hickey [2003] FamCA 395 Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 47 Fam LR 481; [2012] HCA 52 |
| Applicant: | MS ZAMAN |
| Respondent: | MR ZAMAN |
| File Number: | MLC 12473 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 23 October 2018 |
| Date of last submission: | 23 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 December 2018 |
REPRESENTATION
| Counsel for the applicant: | Ms Colla |
| Solicitors for the applicant: | Harry Singer & Associates |
| Advocate for the respondent: | No appearance |
| Solicitors for the respondent: | None |
ORDERS
Parenting
The children of the marriage [X] born [date] 2004 and [Y] born [date] 2006 (“the children”) live with the wife.
The children spend time with the husband as may be agreed between the parties subject to the best interests of the children including consideration as to their extra-curricular commitments, views and the husband’s accommodation circumstances.
Property
Within 60 days of the date of these orders, the husband do all such acts and things as may be required to transfer to the wife, at the expense of the husband, all of his right, title and interest in the former matrimonial property situate at and known as Property A being the whole of the land more particularly described in Certificate of Title Volume (“the Property A property”).
The husband indemnify and keep indemnified the wife against all payments and liability pursuant to the joint mortgage registered number to the Bank 1 (“the mortgage”) and contemporaneously with the transfer referred to in paragraph 3 above, the husband discharge and refinance the mortgage so as to remove the wife from all liability thereto.
Within 60 days of the date of these orders, the husband pay to the wife the sum of $180,000 (“the payment”).
In the event that the husband fails to comply with orders 3 and/or 4 and/or 5 herein within 60 days then:
(a)the husband sign all documents and do all things necessary to forthwith sell the real property situate at and known as Property B being the whole of the land more particularly described in Certificate of Title Volume, of which the husband is the sole registered proprietor (“the Property B property”) and upon completion of the sale, the proceeds net of selling expenses and discharge of the mortgages registered numbers both to the Bank 1 be applied to meet the terms of orders 4 and 5 above; and
(b)the husband be solely liable for any capital gains tax assessed in respect of the sale of the Property B property, and indemnify and keep indemnified the wife in respect of any liability therefor.
The husband retain the Bank 1 account held in his sole name and indemnify and keep indemnified the wife in respect of any debit balance referable to the said account and take all steps to remove the wife as a secondary card holder.
Orders 9 to 14 inclusive are binding upon the Trustee of Super Fund M Personal Plus Account.
The court allocate pursuant to section 90MT(4) of the Family Law Act 1975 a base amount of $74,437 (“the base amount”) to the wife out of the husband’s interest in Super Fund M Personal Plus Account (“the fund”).
In accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the superannuation interest of the husband and wife to date in the fund, the wife, her administrators, executors, beneficiaries, heirs and assigns shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount allocated to the wife in order 9 hereof and there be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made but for these orders.
Order 10 have effect from the operative time.
The operative time for the purposes of order 10 hereof be four (4) business days after the day on which a sealed copy of these orders is served on the trustee of the fund.
Until the happening of any of:
(a)the establishment of a separate account in the name of the wife in the fund; or
(b)the transfer or ‘rolling over’ into another superannuation fund of the wife’s choice of the payment split created by order 10 hereof; or
(c)the wife satisfies a condition of release and is paid the payment split which was created by order 10 hereof; or
(d)the wife executing a waiver of rights within the meaning of section 90MZA of the Family Law Act 1975 in relation to the payment split created by order 10 hereof the husband by himself, his servants and/or agents be restrained from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interest in the fund a ‘not splittable payment’ within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 AND the trustee of the fund give effect to this order.
The trustee of the fund and each party in accordance with the obligations set out under the Family Law Act 1975, the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act and Regulations 1994 shall do all such acts and things as may be necessary to calculate the entitlement of and make payment to the wife in accordance with these orders.
There be liberty to apply to each party and the trustee of the fund in relation to the implementation of the orders affecting the superannuation interest.
The wife or her nominee cause a sealed copy of these orders to be served upon the trustee of the fund.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, possessions and like chattels in the Property A property being deemed to be in the possession of the wife);
(b)monies standing to the credit of the parties in any joint bank account are to become the property of the wife;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
In the event that the husband refuses or neglects to execute a deed and/or instrument in compliance with these orders, the Registrar of the Federal Circuit Court of Australia at Melbourne is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of the husband and do all acts and things to give validity and operation to the deeds and/or instruments.
Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the court certifies that it was reasonable for the parties to employ an advocate.
Pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001, the court may vary or set aside a judgment or order made in the absence of a party and subject to the husband filing an affidavit explaining his non-attendance and the basis of any application to set aside these orders.
AND THE COURT NOTES THAT:
(A)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Zaman & Zaman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 12473 of 2017
| MS ZAMAN |
Applicant
And
| MR ZAMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for both parenting and property orders pursuant to the Family Law Act 1975 (Cth) (“the Act”).
For the reasons set out below, I am satisfied that the applicant’s initiating application filed 30 November 2017 and amended 9 October 2018 should be granted and the orders sought by her in that application made.
Procedural history
The applicant wife and mother filed an initiating application in this court on 30 November 2017 in which she sought both parenting and property orders.
The application was supported by an affidavit and a financial statement also filed on 30 November 2017. The matter was listed for a first return date on 31 January 2018. At that first return, there was no appearance by the respondent. The applicant’s representative filed an affidavit sworn 31 January 2018 annexing correspondence from the applicant’s representative to the husband sent by email and dated 30 January 2018, advising that the matter was listed at 9:45am on 31 January 2018. That letter also contained the following statement:
We act for your wife and have tried to serve the attached documents on you by a process server for almost two months at your residence.[1]
[1] Affidavit of service sworn 31 January 2018 and filed 10 July 2018.
The applicant was represented at court on 31 January 2018 by Mr Schulsinger who tendered a text message exchange between the wife and the husband[2] in which the wife confirmed that documents had been emailed to the husband the previous day. The text message exchange involved the wife asking the husband to “please advise if you will be attending so we can advise the court.”[3] The response from the husband stated “Can’t go…working and need time to read and process documents.”[4]
[2] Exhibit 1.
[3] Exhibit 1.
[4] Exhibit 1.
The husband did not attend court on 31 January 2018. On that day, orders were made adjourning the proceedings to 1 May 2018.
When the matter came before the court again on 1 May 2018, the applicant wife was represented again by Mr Schulsinger. There was no appearance for the husband and the husband had not filed any responding material.
Orders were made on that date as follows:
a)adjourning the proceeding to 5 July 2018 for a mention;
b)requiring the husband to file responding material no less than 14 days prior to the adjourned date; and
c)a referral for outstanding property issues to mediation, with the usual consequential orders regarding discovery and the like.
On 5 July 2018, the matter returned to court.
The husband had still not filed any material or otherwise participated in these proceedings. Orders were made adjourning the proceedings to
8 October 2018 for a mention. In addition, orders were also made for the applicant to:
a)serve a copy of the wife’s initiating application and any amended initiating application on the husband by email to nominated email accounts which the wife said were the husband’s email accounts;
b)send an email to the husband advising him that the application had been emailed to him; and
c)no later than 14 days prior to the adjourned date, file and serve:
i)an amended application particularising the final orders sought;
ii)affidavit in support and financial statement; and
iii)affidavit of service as ordered.
There was also a notation on those orders stating:
…in the event that the respondent fails to appear at the adjourned date, the applicant be at liberty to proceed on an undefended basis.[5]
[5] Orders made by Judge Mercuri on 5 July 2018.
Pursuant to the 5 July 2018 orders, the applicant filed and served:
a)an amended initiating application setting out the final orders sought;
b)an updated financial statement sworn 3 October 2018; and
c)a further affidavit sworn 3 October 2018.
The matter was thereafter administratively relisted to 23 October 2018.
The wife also filed an affidavit of service confirming that her financial statement and affidavit sworn on 3 October 2018 were served on the husband by email as provided for in the 5 July 2018 orders.
When the matter was called on 23 October 2018, there was no appearance for the husband.
The husband has filed no material in the proceedings to date.
Furthermore, on 23 October 2018, the wife tendered email correspondence from her solicitor to the husband enclosing:
a)a balance sheet of the pool of assets upon which the applicant wife would rely at the next hearing; and
b)a minute of proposed final orders.[6]
[6] Exhibit 3.
That correspondence also contained the following statement:
We also enclose herewith Minute of Proposed Final Order which sets out the Orders our client will be seeking that the Court pronounce on 23 October 2018 to bring the proceedings to a conclusion. Those orders will impose upon you duties and obligations as set out therein. Our client will be asking the court to make the orders whether you are in attendance or not. If you propose to oppose the making of the Orders by the Court, you should be in attendance at the Federal Circuit Court of Melbourne on 23 October 2018 at 9.30 am. Our client has briefed Counsel to appear.
We again suggest it is prudent for you to seek independent Family Law advice prior to the hearing listed next Tuesday 23rd October 2018.[7]
[7] Exhibit 3.
In those circumstances, the applicant sought leave to proceed on an undefended basis. Having regard to the background to this matter, the fact that the husband was on notice of these proceedings since January 2018 and has chosen not to participate in these proceedings at all, leave to proceed on an undefended basis was granted.
Evidence
Given the husband’s failure to engage in this process, the only evidence before this court is the unchallenged evidence of the wife.
The wife was born on [date] 1968, is aged 50 years and deposes to be in satisfactory health. The husband, born [date] 1962 is 56 years of age. The wife states that she believes that he is in satisfactory health.
The parties met in 2000, commenced cohabitation in about [date] 2002 and were married on [date] 2002. The parties separated on 15 December 2015. Post separation, the wife lived with the children at her parents’ home until April 2016. During that time, the husband continued residing in the former matrimonial home. The husband vacated the former matrimonial home in April 2016 and the wife returned to live there. The husband was initially living in rental accommodation after leaving the former matrimonial home but presently lives in an investment property that he owned prior to his relationship with the wife.
There are two children of the marriage, namely [X] born [date] 2004 who is currently in Year 8 and [Y] born [date] 2006 who is currently in Year 7 (“the children”).
The children have lived with the wife post-separation and see their father once a week on a Saturday or Sunday for part of the day. The mother also attests that the father attends the children’s sporting activities although his communication with them is not consistent and there is no fixed pattern for holiday or other time with him.
The wife works full time as an [occupation omitted] at a [employer omitted] and earns about $40,000 per annum. The wife states that the husband worked as an [occupation omitted] for the [employer omitted] until about [date] 2017 although she did not know how much he was earning. The wife also deposes that she believed that the husband commenced working at [employer omitted] in [date] 2018 but does not know in what capacity or how much he is currently earning.
In relation to property matters, the wife has set out in her financial statement what she believes the property pool consists of. She states in her affidavit that in addition to the property in her financial statement, the husband also owns a number of assets, the value of which she is not aware:
a)motor vehicle;
b)the husband’s investment property at Property B; and
c)shares.
The wife deposes that the husband received a redundancy from [employer omitted] on [date] 2015 in the sum of $174,561 and an inheritance from his mother’s estate in the sum of $300,000 which he received on [date] 2015, both sums which ought to be included in the pool in the absence of any explanation from him as to where those funds were expended.
The wife is unaware of the value of the mortgage in respect of the Property B property.
The wife gave evidence that the husband owned the Property B property at the commencement of cohabitation and rented the property out when he moved into the wife’s property at Property C which she had purchased for $128,000.
At the commencement of cohabitation, the husband was working at [employer omitted] earning about $90,000 per annum. The wife was working as an [occupation omitted] earning about $40,000 per annum. Neither party had any children prior to their relationship.
During the relationship in 2005, the parties purchased the former matrimonial home for approximately $320,000. The parties sold the Property C property and used the net proceeds of $237,500 towards the purchase of the former matrimonial home.
The wife took seven years maternity leave whilst the children were young. The husband worked for most of the relationship until he was made redundant in [date] 2015.
The wife deposes that the husband without her consent unilaterally obtained further borrowing from the Bank 1 in the sum of $110,000 on or about [date] 2014. The wife states that as far as she knows, the husband has spent these funds on himself and seeks this amount to be added back to the asset pool.
The wife also states that that she was made redundant from her employer in [date] 2003 and received a redundancy payment. The wife states that those funds were spent on living. The wife further states that she did not receive any inheritances or windfalls during the marriage.
Post-separation, the wife concedes that the husband has continued to pay mobile telephone and Netflix costs for the children. The wife deposes that the husband was also supposed to pay the mortgage, rates and insurance expenses in respect of the former matrimonial home, but it is unclear from the wife’s material whether these expenses have been paid. In any event, the wife states that she has been paying health insurance expenses for herself and the children, utilities, telephone, car expenses, travel costs, and other household expenses.
The wife also states that the husband does not pay the assessed child support payments but rather pays ad hoc expenses for the children.
Proposals
Parenting
The wife proposes that the children continue living with her full time and spend time with their father as they see fit having regard to their views, wishes and best interests.
Property
The wife proposes that:
a)she retain the former matrimonial home;
b)the husband take over the liability for the mortgage on the former matrimonial home;
c)the husband pay to the wife the sum of $180,000 within 60 days of the date of the orders;
d)should the husband fail to comply with (b) and (c) above, the Property B property be sold and the funds be used for that purpose and that the husband be solely liable for any capital gains tax payable in respect of the sale of the Property B property;
e)the husband otherwise retain the Property B property and sole liability for any mortgage in respect of that property; and
f)the husband retain a Bank 1 account in his sole name, indemnify the wife in relation to any debit balance referable to that account and remove the wife as a secondary card holder to that account.
The wife’s proposal would produce a division of non-superannuation assets in the order of 71% to the wife and 29% to the husband.
The wife also seeks a splitting order to equalise the parties’ superannuation.
The legislation
Parenting
Part VII of the Act deals with children.
In summary, in making parenting orders, the court is required to give paramount consideration to the best interests of the children. Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.[8]
[8] Family Law Act 1975 (Cth), section 60CA.
The statutory pathway in section 60CC(2) and (3) of the Act assists the court in determining what is in the children’s best interests.
In this case, the children are 12 and 14 years of age respectively. The evidence from the mother is that post-separation, the children have lived with her and spent time with the father on a sporadic basis.
The father has not participated in these proceedings. He has not put forward an alternative proposal for where the children should live or time spent arrangements with him.
The mother’s material does not identify any risk factors of the children in the father’s care. There is no evidence before the court that the mother would not encourage or facilitate a relationship between the children and their father.
In those circumstances, I am satisfied that the mother’s proposal in relation to parenting matters is in the children’s best interests. It essentially reflects the current arrangements as deposed to by the mother and will allow them to maintain a meaningful relationship with their father to the extent that he wishes to be engaged in their lives.
Given the absence of the father’s involvement in this matter, the only expression of the children’s views are those contained in the mother’s affidavit. The mother states in her affidavit filed on 30 November 2017 that the father’s time with the children post-separation had generally occurred on a weekly basis and that sometimes this was at their various sporting activities and during school holidays subject to arrangements being made between the parents.
The mother’s evidence is that the father has not provided any real significant financial support to her for the children’s expenses post-separation.
The proposed orders will maintain the status quo and have no effect on the children’s current arrangements. I am satisfied that there are no practical difficulties or expenses associated with the proposed spend time arrangements.
There is no suggestion of any incapacity on the part of either parent to provide for the children’s needs.
I have had regard to the ages of the children and the description of their current arrangements in relation to their time spent with their father.
There are no family violence issues raised in this case.
The proposed orders are least likely to lead to further litigation. The father has not participated in these proceedings notwithstanding having been afforded numerous opportunities to do so. These orders, which effectively represent the current arrangements, will provide certainty for the parties and bring this litigation to an end.
Property
Section 79 of the Act gives the court power to alter the property interests of the parties to a marriage. Specifically, section 79(1) of the Act provides that the court may make such orders as it considers appropriate, altering the interests of the parties in the property.
Subsection 79(2) of the Act provides that:
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.[9]
[9] Family Law Act 1975 (Cth), section 79(2).
Where the court is satisfied that it is just and equitable to make an order altering the interests of parties in property, section 79(4) of the Act sets out the matters the court must take into account when considering what orders, if any, should be made.
Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 (Cth) that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
In Stanford v Stanford [2012] HCA 52 (“Stanford”), the High Court explained the proper approach to an application under section 79 of the Act. In essence, the High Court noted that before making any orders to alter the parties’ interests in property, the court must decide whether it is just and equitable to make any property orders or to alter the parties’ interests in property.
The High Court relevantly said:
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. … The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order. (emphasis added)[10]
[10] Stanford v Stanford [2012] HCA 52 at [37].
At paragraph 42, the High Court went on to state:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4). (emphases added) (footnotes omitted).[11]
[11] Stanford v Stanford [2012] HCA 52 at [42].
In summary, following Stanford, in many cases determining whether it is just and equitable to make an order under section 79 of the Act is determined in the affirmative where there has been a breakdown of the marital relationship and where both parties have sought orders from the court altering their respective property rights.
In this case, the parties cohabitated for approximately 13 years and have separated. The wife is seeking orders altering the parties’ respective property interests. The husband has not participated in these proceedings notwithstanding having been given numerous opportunities to do so. I am satisfied that it is just and equitable to make orders adjusting property matters between them.
Having come to this view, the approach that the court takes in considering what orders are appropriate under section 79 of the Act, are aptly summarised in In the Marriage of Hickey [2003] FamCA 395. Essentially this requires the court to:
a)identify the assets and the value of the assets in the property pool;
b)determine the contributions made by each of the parties to those assets, both directly and indirectly and in financial and non-financial terms;
c)determine whether any adjustment is required for section 75(2) factors; and
d)in light of those findings, determine what orders for the division of property is just and equitable.
Asset pool
As stated, the only evidence before the court as to the parties’ assets and their values is that of the wife. On the basis of Exhibit 3, I am satisfied that the husband was put on notice of the wife’s proposal and afforded sufficient opportunity to put forward any evidence relevant to this issue. He has not done so and I therefore accept the unchallenged evidence of the wife in relation to the parties’ assets as follows:
Joint assets
Value
Property A
E$900,000
Property B
E$423,000
Motor vehicle 1
E$8,000
Husband’s motor vehicle
Not known
shares
Not known
Bank 1 accounts
(1) Account no.1
(2) Account no. 2
$4,260
$445
[employer] redundancy received by husband, 2015
E$174,561
Deceased estate inheritance from husband’s mother, 2015
E$300,000
Total joint assets
E$1,810,266
Contributions
Initial contributions
The parties each brought equity in a property into the relationship. The wife’s evidence is that the Property C property, in which she had equity prior to cohabitation, was sold and the net proceeds were applied towards the purchase of the former matrimonial home. The husband’s property was retained as an investment property and rented out throughout the relationship.
It was put on behalf of the wife that an adjustment ought to be made in the wife’s favour having regard to the fact that her property was sold two years into the relationship and provided a significant contribution towards the purchase of the former matrimonial home.
Contributions during the marriage
During the marriage, both parties worked to the best of their abilities and appear to have contributed to the asset pool. In addition to working at various times, the wife also contributed to the care of the children whilst on maternity leave.
I find that both parties contributed equally throughout the marriage to the acquisition, maintenance and improvement of the parties’ assets and the wellbeing of the family.
Contributions post-separation
I accept the mother’s evidence that post-separation, she has had the primary care of the children and has paid for household expenses associated with the children aside from the children’s mobile telephones and Netflix, the mortgage, rates and insurance for the former matrimonial home.
I also accept the mother’s evidence that the father does not pay child support as assessed administratively by the Child Support Agency but rather pays for house insurance, school fees and half the family health insurance and ad hoc bills in relation to the children. The mother has not quantified what the father’s contributions are in this regard.
On the basis of the mother’s evidence, I am satisfied that she has shouldered the bulk of the burden of caring for the children post-separation not only financially but also with respect to time spend arrangements as the children are primarily in her care and spend minimal and no overnight time with the husband.
Add backs
The wife seeks the following sums be added back to the asset pool:
a)the husband’s unilateral withdrawal of funds from the Bank 1 home mortgage in 2014 of $110,000; and
b)the husband’s withdrawal of funds from his Super Fund M in 2017 of $10,000.
The wife deposes that on or about [date] 2014, without her prior knowledge or consent, the husband drew down $110,000 from the Bank 1 and spent those amounts for himself, as far as she was aware.[12]
[12] Wife’s affidavit filed 3 October 2018 at paragraph 11.
There is no specific reference in the wife’s material about the husband’s $10,000 withdrawal from his Super Fund M. I am therefore unable to make a finding about the husband withdrawing this amount.
I find on the basis of the wife’s evidence that the husband drew down the sum of $110,000. As the husband has not filed any material in this matter, there is no evidence on his behalf as to how these monies were expended and am therefore satisfied that it ought to be added back to the pool.
I otherwise accept the wife’s calculations as to the asset pool as set out in Exhibit 3. On that basis I find that the asset pool available for distribution between the parties is as follows:
Assets
Value
Property A
E$900,000
Property B
E$423,000
Motor vehicle 1
E$8,000
Husband’s motor vehicle
Not known
Husband’s shares
Not known
Wife’s Bank 1 accounts
(1) Account no.1
(2) Account no.2
$4,260
$445
[employer] redundancy received by husband, 2015
E$174,561
Deceased estate inheritance from husband’s mother, 2015
E$300,000
Husband’s unilateral refinance of home mortgage (add back)
$110,000
Total assets
E$1,920,266
Liabilities
Value
Bank 1 mortgage secured over Property A property
(E$395,158)
Bank 1 mortgages secured over Property B property
Not known
Wife’s Mastercard
Nominal
Total liabilities
(E$395,158)
TOTAL
E$1,525,108
Superannuation
Value
Husband’s Super Fund M (as at 30 September 2018)
$230,010
Wife’s Super Fund N (as at 30 June 2018)
$46,976
Wife’s Super Fund O (as at 30 June 2018)
$18,588
Wife’s Super Fund P (as at 30 June 2018)
$12,308
Wife’s Super Fund Q (as at 30 June 2018)
$3,264
Total superannuation
$311,146
Section 75(2) factors
In support of her proposal, the wife points to the following factors which the court is to have regard to under section 75(2) of the Act:
a)under the proposed parenting orders, the children will continue to live with the mother and she will continue to have primary responsibility to provide for them for the foreseeable future; and
b)the disparity between the parties’ earning capacity – although the husband has not filed any material, the wife has attested to the fact that he was earning about $90,000 per annum at the commencement of cohabitation in 2002. She also deposes that he is currently working in the [employment omitted] industry. The wife, by comparison earns $40,000 per annum working full time.
What order is just and equitable?
The wife seeks a split of non-superannuation assets of 71/29% in her favour and a splitting order to equalise the parties’ superannuation entitlements.
I am persuaded by the wife’s submissions that in the circumstances, the proposed orders are just and equitable. In coming to this view, I have had particular regard to the fact that the children will continue to live with the mother and that she will have almost sole responsibility for them. I have also considered the wife’s contributions, both at the commencement of the relationship and post-separation.
I have had further regard to the husband’s failure to engage in these proceedings in any way.
Costs
The wife sought an order for costs. It was submitted that she had incurred costs of $15,000.
In support of this application, it was submitted that the husband has, in effect, obtained the benefit of final orders in these proceedings without having incurred any costs at all. Moreover, it was submitted that the wife has acted reasonably in the conduct of these proceedings which have had a number of return dates.
The court’s power to award costs under the Act are set out in section 117. The starting point is that each party is to bear their own costs in proceedings under the Act. I am not satisfied, having regard to the matters set out in section 117(2A) of the Act that this is a case in which the court should exercise its discretion to order costs.
The husband has not participated in these proceedings. This of itself is not sufficient grounds to warrant the exercise of discretion in this instance.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 6 December 2018
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Jurisdiction
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Remedies
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Costs
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Statutory Construction
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