Wife Applies for Property Adjustment
Sinha & Kapil [2022] FedCFamC2F 1595 (23 November 2022)
The wife applied for an adjustment of property settlement orders. The husband failed to attend court on multiple occasions. The Court, in making orders adjusting the interests of the parties, assessed the parties' respective contributions.
Facts
The parties commenced living together in 1999 and were married in 1999. The parties separated in 2016 and a divorce order was granted on 22 July 2021. There are two children of the relationship, Ms H (“Ms H”) born in 2001 (currently 21 years of age) and X (“X”) born in 2005 (currently 17 years of age). The parties have interests in property in both Australia and Country J.
On 22 July 2021 final orders as to property were made by the Family Justice Courts of the Country J adjusting the interests of the parties in all property situated in Country J. Such orders were without prejudice to any relief sought by the wife with respect to the interests the parties hold in property in Australia. At no time has the husband filed any material in response to the wife’s application. On 8 September 2022 the matter proceeded to an undefended hearing of the wife’s substantive application on a final basis in the husband’s absence and judgment was reserved.
The wife commenced these proceedings by way of an Initiating Application filed on 22 December 2021. An Amended Initiating Application was filed on 5 July 2022. The wife deposes that she attempted to serve her Initiating documents upon the husband through enlisting the services of a process server with the husband evading such service. Orders were made by a Judicial Registrar on 14 February 2022 for substituted service of the wife’s Initiating Application on the husband.
There was no appearance by or on behalf of the husband when the matter was listed before the Court on 4 April 2022. The Judicial Registrar was satisfied that service upon the husband had been effected. The wife was directed to file and serve any Amending Initiating Application by way of WhatsApp messenger and file updating material. Further orders as to service of the material upon the husband were made by the court on 26 August 2022 in Chambers. Pursuant to such orders the material was to be personally served upon Mr O by no later than 4pm on 1 September 2022. There was no appearance by the husband on 8 September 2022.
Orders were made in the Family Justice Courts of the Country J on 22 July 2021 as follows: "a. The Plaintiff shall have sole custody, care and control of the children namely, [Ms H] ("elder child") and [X] ("younger child") ("hereinafter collectively referred to as "the children"); b. The Defendant shall have reasonable access to the children to be arranged directly between the children and the Defendant; c. The Defendant shall pay monthly maintenance for the children in the sum of 2,000 for the elder child and l,000 for the younger child with effect from 31 July 2021 and thereafter on the last day of each month."
The property at City M in Country J was sold by the wife on in April 2022. The wife received a net sum of $321,216.58 AUD. The total value of the known property pool of the parties including superannuation entitlements based on the evidence available is $1,842,757. The wife in addition has a retirement fund with a value of $300,340.
The value of the property including superannuation in which the husband has an interest totals $2,166,863. The wife is in debt to the value of $324,106. The wife has financial resources with a value of $300,340.
Issue
Whether or not the Court should make orders in favor of the wife's application.
Applicable law
Family Law Act 1975 (Cth) s 79 - requires the Court to make findings as to the identity and value of the property, liabilities, and financial resources of the parties, or either of them, at the time of the hearing and determine the legal and equitable interests of the parties in such property.
Analysis
The parties in this matter, having married and mixed their finances as a family have now separated. It is therefore not possible for them to continue to mutually enjoy the accumulated assets. At the time of cohabitation, the wife was in possession of a sum of gold which she estimates was worth approximately $55,000. It appears from land title searches that the husband had an interest in the property at F Street, Suburb G in the state of New South Wales (“the F Street, Suburb G property”).
The parties lived with the wife’s parents from 1999 to 2002. Throughout this time, the husband was employed as a professional earning approximately $5,000 per month. The wife was employed as a professional earning approximately $2,700 per month. The husband did not contribute to the day to day living expenses of the family in circumstances where they were residing with her parents.
At all times been the primary carer of the two children. As between the husband and the wife she was the sole provider of care for the children from 2006 to 2008 when the wife and children were in Country J and the husband was living in Australia. The wife made higher financial contributions than the husband both during the course of the relationship and post separation by way of the application of her income towards the acquisition and conservation of the property of the parties. The husband has had the benefit of rental income from the parties’ property to the exclusion of the wife.
Conclusion
Within 28 days of the date of these Orders, the husband shall do all things and sign all documents necessary to transfer to the wife all his right, title and interest in:-
(a) The property situated at and known as B Street, Suburb C being the whole of the land contained within certificate of title folio identifier ...; (“ the B Street, Suburb C property”); and(b) The property situated at and known as D Street, Suburb E being the whole of the land contained within certificate of title folio identifier ... (“the D Street, Suburb E property”).
