Zubkin and Zubkin

[2011] FamCA 287

FAMILY COURT OF AUSTRALIA

ZUBKIN & ZUBKIN [2011] FamCA 287

FAMILY LAW - INTERIM PROPERTY SETTLEMENT – INTERIM PARENTING ISSUES – review of the evidence – absence of evidence in relation to significant matters – directions

Family Law Act 1975 (Cth.)

APPLICANT: Mr Zubkin

RESPONDENT: Ms Zubkin

FILE NUMBER: SYC 1798 of 2009

DATE DELIVERED: 6 April 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 6 April 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Clayhills Solicitors

RESPONDENT IN PERSON: Ms Zubkin

Orders

Property

1. That until further order the wife have exclusive occupancy of M Street, Sydney Suburb 1 (‘the former matrimonial home’).

2. That until further order the husband and wife pay all mortgage instalments, council and water rates on an equal basis as and when they fall due.

3. That the husband pay the mortgage arrears over the former matrimonial home in accordance with such arrangement, if any, that he is able to make with the mortgagee or failing such arrangement with the mortgagee then payment to be made within two (2) months.

4. That until further order the husband is restrained from transferring, selling, further encumbering or in any other way dealing with the former matrimonial home AND THAT this Order may be the subject of registration on the title of the former matrimonial home on the application of both or either of the parties.

5. That the husband is restrained from attending upon the former matrimonial home other than:

   (a)for the purpose of arrangements for the sale pursuant to written agreement between the parties;  or

   (b)court order;  or

   (c)for spending time with both or either of the children in accordance with a court order.

6. That each of the parties may publish a sealed copy of the Orders made this day to the mortgagee of the former matrimonial home.

7. That the application for interim property orders made by each of the parties is otherwise dismissed.

Parenting

1. That the husband’s application for interim parenting orders is dismissed.

2. That the parties forthwith seek the earliest possible date and time for a consultation in the Sydney Registry for the Child Responsive Program and that the family consultant prepare and furnish the parties with the result of such consultation as soon as possible.

3. That the parties may make an application in writing to the Case Management Judge or the Manager Judicial Services (Listings) for the earliest first day of hearing under the Less Adversarial Trial procedure.

IT IS NOTED that publication of this judgment under the pseudonym Zubkin & Zubkin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC1798 of 2009

Mr Zubkin

Applicant

And

Ms Zubkin

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings each of the parties sought interim property settlement orders.

2. In addition, the father, who is the respondent in the proceedings, sought interim parenting orders in relation to the two children of the parties.

3. The wife has been unrepresented throughout the hearing and for some time beforehand.

4. The husband has been represented by his solicitor.

Historical background

1. The brief historical background to these proceedings is as follows.

2. The parties were married in 2002.

3. The parties cohabited for a period of almost nine years which commenced during February 2002 and continued until they finally separated, according to the wife, on 1 December 2010 or according to the husband on 12 January 2011.

4. For obvious reasons there is no pending application for dissolution of marriage.

5. The wife is 50 years of age and engaged as a company managing director in the hospitality industry.  In addition, the wife gives her qualifications as being in the education field.

6. The husband is 40 years of age and is an employed professional.

7. The two children of the marriage are twins, Z and P, eight years of age having been born in September 2002 (“the children”).

8. The children live with the wife in the former matrimonial home at M Street, Sydney Suburb 1.

9. The former matrimonial home is solely owned by the husband.

10. The title to the former matrimonial home is subject to a mortgage to Westpac Banking Corporation Limited.

11. There are arrears of mortgage payments.

12. The husband’s case, which I accept, is that there are arrears over a period of about four months which his solicitor informs me amounts to about $44,000.00.

13. There had been a caveat lodged on the title to the former matrimonial home on behalf of the wife.  I was informed by the husband’s solicitor that the caveat has now lapsed.  I see no reason other than to accept that information, which was not disputed by the wife.

14. The wife seeks also certain injunctive relief to enable her to re-lodge a caveat and from her affidavit material to restrain the husband from attending the former matrimonial home due to alleged harassment and abuse.

15. An issue arose also in relation to child support.

16. There is no application for child support departure.  Rather, the wife, during the course of the hearing, stated that she was seeking an order to compel the husband to not only pay current arrears of child support but also to resume payments to the child support agency rather than attempting to make payments to her direct or for the agency to seek to rely upon his statement that he would make such payments.

17. Currently there are arrears of child support amounting to $2,614.93 as at 18 March 2011.

18. In that regard, I had been informed by the husband’s solicitor, on his express instructions, that he was in arrears for this month only.  According to Exhibit 4, that statement is incorrect in that the arrears are for the period February and March, including penalty, amounting to the sum to which I have earlier referred.  If, of course, he has not made the April payment then the arrears increase.  Nonetheless, the husband’s solicitor had stated in court that his client would pay the arrears by close of business next Monday.  An appropriate order will be made to the effect.

Issues

1. The first issue for determination is the matter of interim property settlement.

2. The wife has sought an order that the husband transfer his interest in the former matrimonial home to her.  In addition, she had sought orders for payment of mortgage instalments and council rates, clarified during the course of submissions, as being that the parties be equally responsible for meeting those commitments.

3. The husband, for his part, submitted through his solicitor that orders should be made on an interim basis as sought by him in his Amended Response filed 17 March 2011.  The substantive effect of the orders so sought are that the parties join in the sale of the former matrimonial home and the machinery to enable that to occur be as set forth in paragraph 1 of Annexure B to his Amended Response filed 17 March 2011.

4. The wife opposes the sale and put forward evidence that so far as her proposed commitments are concerned she is financially able to meet them.

5. There is no issue that the husband is the sole registered proprietor of the former matrimonial home.  In that capacity he bears the sole legal responsibility for payment of mortgage instalments, council and water rates.  The husband contends that he is financially unable to do so.

6. The husband’s Financial Statement sworn 10 March 2011 and filed 14 March 2011 sets out his gross income as being $1,940.00 per week.  The husband’s tax amounts to $500.00 per week.  Mortgage instalments include $2,625.00 per week and mortgage instalment commitment in relation to property at Town 1 is $750.00 per week.  In addition, the husband has commitments in relation to payment of credit cards and child support.

7. In the summary to the husband’s financial statement, he states that his total average weekly income is $1,940.00 gross and his total personal expenditure $5,353.00.  That figure includes the periodic payments for tax and mortgage instalments to which I have referred.  Unfortunately, the financial statement does not provide any information as to the manner by which the husband has been able to meet the shortfall between his average estimated personal expenditure compared to his income, a difference of approximately $3,400.00.

8. The husband’s Affidavit sworn on 10 March 2011 is also curiously silent in that respect.  The financial statement taken on its own suggests that the husband in fact is meeting the expenses which he lists in that document.  The affidavit sheds more light on the subject, in that it is clear that he has fallen into arrears.

9. For the purpose of meeting commitments to the mortgagee, the overall evidence is that there has been a capitalisation of interest and perhaps other amounts owing to the mortgagee.  The husband’s affidavit is silent as to the circumstances which have lead to arrears under the mortgage, notwithstanding the capitalisation of interest and other amounts which would have been payable by the husband.

10. As I pointed out to the solicitor for the husband, I can only make decisions in this matter, as in any case whether in this Court or any other court in civil proceedings, based on the evidence before me rather than on the basis of “conjecture” (the word used by the solicitor).

11. Consequently, the financial position of the husband, as set out in his evidence, is very limited and places me in a difficult position, not to mention that his case may not have been as fully developed for the purpose of the hearing today as might otherwise have been the case.  Why that is so is a matter which I am not privy.

12. The wife, for her part, has provided detailed evidence in her Affidavit of 2 April 2011 regarding her improved financial circumstances compared to the situation as described in her Financial Statement sworn 20 December 2010.  The latter document was incomplete in many respects and had the hallmark of having been drafted by a party to the proceedings who did not have the benefit of appropriate legal advice.  However, the wife’s Affidavit of 2 April 2011 provided more extensive evidence in respect of her financial circumstances.

13. The effect of the evidence in that affidavit is that the wife’s financial position is such that there is a reasonable prospect that she could at least meet half of the mortgage instalments, council and water rates in respect of the former matrimonial home that are otherwise the total legal and financial responsibility of the husband.

14. During the course of submissions an order was sought by the wife to the effect that the parties bear equally those particular fixed outgoings, in comparison to her earlier case contained affidavits and initiating application, that the husband be solely financially responsible for such payments.

Conclusion

1. The parties had a lengthy period of cohabitation.

2. On the limited evidence before me, each made substantial financial and non-financial contributions.  In addition, the wife as the primary contribution in the role of homemaker and parent.  Both parties have continued to make contributions subsequent to separation.

3. The parties’ financial circumstances are under strain.

4. That has been caused to some extent by the increased mortgage liabilities that have been undertaken including the financial commitments that the husband has had arising out of his part ownership of the Town 1 properties.

5. The husband’s solicitor has submitted that there was little equity in those properties, being properties owned by the husband with one Mr S.  It is entirely a matter for the husband as to whether he seeks to realise his share in such equity as exists in the Town 1 properties with or without the consent of his partner.  Should there not be consent for its sale then the husband has his legal rights pursuant to section 66G of the Conveyancing Act.  No doubt the husband will seek appropriate legal advice in that respect.

6. I have concluded that orders will be made as sought by the wife on an interim basis, namely that she and the two children continue to live in the former matrimonial home and that the parties be equally responsible for meeting the mortgage instalments, council and water rates.

7. My reasons for doing so are that the evidence is far from complete.

8. I do not have an agreed balance sheet of assets and liabilities.

9. I do not have expert evidence as to the value of real estate nor of the value, such as there may be, of the business activity conducted by the wife through her company.

10. However, the wife has put forward evidence of improved financial capacity to meet ongoing commitments to a certain degree.  So far as the former matrimonial home is concerned, it is the home for her and the children.  I take that into account, including the disruption to their lives that would be caused by an immediate sale.

11. I do not have sufficient evidence before me to be satisfied that taking into account all of the contributions, the full extent of assets and liabilities of the parties, including value of assets and relevant matters under s 75(2) that would lead me to conclude that it is just and equitable, on an interim basis, for the husband to transfer his interest in the former matrimonial home to the wife, as sought by her.

12. The husband is quite clearly under some financial strain.  There are aspects of his evidence that need to be more fully explained, touched upon by me earlier in this judgment.

13. In the event of the parties not reaching an overall settlement, it is to be hoped that affidavits are prepared and filed on the husband’s behalf which are more complete with the full scope of relevant material currently lacking from them, prepared by a lawyer who has an appropriate level of knowledge and experience in preparation of cases of this type.  Again, that is solely a matter for the husband.

14. Consequently, I will make orders which compel the parties to equally meet ongoing mortgage instalments, council and water rates until further order.

15. There are arrears of mortgage payments that need to be met.  Therefore, I will make an order that the husband pay such instalments by such arrangements that he is able to make with the mortgagee pending further order.  After all, he has the prime responsibility for meeting mortgage instalments as he is the sole registered proprietor.

16. The husband made arrangements with the bank for capitalisation of interest and other liabilities pursuant to the mortgage.  It was his responsibility to set out in affidavit form the circumstances which led to such arrangements being made and the reasons why he has been unable to make mortgage instalments, culminating in arrears, notwithstanding those arrangements previously made for capitalisation.  If and when such affidavit is prepared, filed and served, then on a substantive hearing or, if necessary on a subsequent filing of an application for interim orders, the matter can be considered in the light of further significant evidence.

17. So far as interim parenting proceedings are concerned, the husband’s solicitor, quite properly, conceded that the affidavit evidence of the husband was remarkably prominent by the material it did not include as opposed to the material that was included.  There was no evidence at all of the husband’s current capacity to provide for the needs of the children in terms of their physical environment in the home in which he lives, his ability to care for them, notwithstanding his employment and other commitments and all other aspects of parenting which would be obviously needed to be attended to if orders were to be made as set forth in annexure “B” to his amended response.

18. The fact that the husband gave evidence of his parenting during the course of the marriage leading up to separation, whilst relevant, does not overcome the defects in his affidavit to which I have referred.  It would have been a simple matter for whoever had the responsibility for preparation of his affidavit, to follow the sub-topics listed in s 60CC(3) for the purpose of making his affidavit complete so that his application for interim parenting orders could have been properly supported.  For reasons best known to those representing the husband and perhaps to him, such affidavit material was not provided.

19. The wife opposes any parenting orders at this stage.  Her case is that the husband has engaged in abusive and harassing behaviour as outlined in one of her affidavits.

20. In addition, there are pending apprehended violence proceedings listed for hearing on 18 April 2011 in which evidence is to be given about those matters and any other related aspects of the husband’s alleged misconduct.  Regardless of the outcome in those proceedings, which are not binding on this Court, nonetheless some of the evidence may be relevant.

21. In addition, the wife had raised allegations of alcoholism and also briefly mentioned matters of sexual abuse.  Alcoholism was touched upon, but only briefly so, in her affidavits.  Sexual abuse does not appear to be the subject of any evidence before me.

22. In those circumstances and given the absence of a family report or a memorandum following a Child Responsive Program consultation, I am not in a position to be satisfied that it is in the best interests of the children to make a parenting order at this stage in favour of the husband.

23. However, this matter needs to be considered with appropriate expert evidence, if possible, at the earliest time.

24. The husband’s evidence, which is not disputed, is that the last time he had any time with the two children was on 10 February 2011.

25. Accordingly, I propose to make orders to ensure, so far as I can, that a Child Responsive Program conference with a family consultant take place as soon as possible.

26. Depending on the outcome of that conference, the matter will be listed for the purpose of a first day hearing before a Judge and also that a family report be then ordered as well as consideration given to the appointment of an independent children's lawyer.

27. In addition, I raised with the solicitor for the husband whether or not, in light of the case brought by the wife as set forth in detailed evidence provided by her, an order should not be made restraining the husband from attending upon the former matrimonial home other than for any possible sale or arrangements for commencing time with both or either of the children until further order.

28. The husband’s solicitor informed me, in effect, with those qualifications there was no prejudice to the husband in making such an order.  Consequently, I will make such an order without admissions.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 6 April 2011.

Associate: 

Date:  29 April 2011