AGIUS & JERSEY

[2019] FCCA 1319

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGIUS & JERSEY [2019] FCCA 1319

Catchwords:
FAMILY LAW – Ex tempore property judgment.

Legislation:

Family Law Act 1975 (Cth), s.75(2)(o)

Cases cited:

Stanford & Stanford [2012] HCA 52

Applicant: MS AGIUS

Respondent: MR JERSEY

File Number: DGC 1462 of 2015

Judgment of: Judge Burchardt

Hearing date: 8 April 2019

Date of Last Submission: 8 April 2019

Delivered at: Dandenong

Delivered on: 8 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Cinar

Solicitors for the Applicant: Erol Cinar Lawyers

Counsel for the Respondent: Mr Richardson

Solicitors for the Respondent: Vernon Da Gama and Associates

ORDERS

1. That the Applicant and the Respondent shall do all acts and things and sign all necessary documents to effect the sale of the property at Street A, Suburb B in the State of Victoria and more particularly described in Certificate of Title Volume … Folio … (“the property”) and for that purpose the following shall apply:-

   (a)The property shall be listed for sale by way of public auction with Real Estate Agent in Suburb B within 14 days unless otherwise agreed between the parties in writing.

   (b)The reserve price of the property shall be $525,000.00 or such other amount as nominated by Real Estate Agent Suburb B.

   (c)The Respondent’s solicitors shall prepare a contract for the sale of the property and otherwise manage the conveyance with the solicitor for the Applicant to be kept informed of all relevant correspondence.

   (d)The parties agree to co-operate with Real Estate Agent Suburb B in relation to the sale, including allowing inspection of the property, at all times reasonably requested by them.

   (e)That the parties attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached.

   (f)The contract of sale shall provide for settlement to take place in 60 days, unless otherwise agreed between the parties.

   (g)The proceeds of sale of the property shall be paid in the following manner and priority: -

   (i)To discharge mortgage number … with F Bank;

   (ii)Payment of the agent’s commission and advertising expenses, if any payable on the sale;

   (iii)To pay any council rates and other charges outstanding in respect of the property;

   (iv)Payment of legal costs and outlays relating to the sale;

   (v)That the Applicant receive an amount of $6,150.00;

   (vi)The balance be divided as follows: -

   A.50% to the Applicant (from which $1500.00 is to be paid to the Respondent’s solicitors further to the Orders made by the Court on 25 July 2018); and

   B.50% to the Respondent.

2. That pending the sale of the property all rental income received in relation to the property shall be applied towards the F Bank mortgage and any rates and outgoings as they fall due up to the date of settlement.

3. In the event that the rental income is not sufficient to cover any rates and outgoings that fall due prior to the date of settlement, the parties shall share such expenses equally between them, failing which these expenses shall be borne by the Respondent at first instance and adjusted against the Wife at the time of settlement.

That:

1. Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this Order within 14 days of being requested to do so.

2. If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so then the Registrar of the Dandenong Registry of the Federal Circuit Court is hereby appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

3. A defaulting party shall pay the other party’s taxed costs of and incidental to such request and production of documents to the Registrar.

4. That from the date of these Orders each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date.

5. Monies standing to the credit of the parties in any bank account to be the property of the party in whose name such bank account is held.

6. Each party retain their respective superannuation benefit held in their own name, to the exclusion of the other.

7. Any joint tenancy in any real or personal property is hereby expressly severed.

8. In the event that any Capital Gains Tax liability arises from the sale of the property, the amount of such liability shall be paid from the proceeds of sale before the balance is distributed to the parties pursuant to Order (1)(g)(vi) above.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1462 of 2015

MS AGIUS

Applicant

And

MR JERSEY

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

1. I should commence my judgment by saying that it is not my general practice at all to issue ex tempore judgments.  The reason why I am going to do so in this case is that the dispute is, albeit a very important one, within such a narrow compass that to dignify it by reservation of judgment, a lengthy written of judgment and a delay of some two or three months is simply not appropriate.

Background

1. The relevant history of the matter is that the applicant husband – the parties are now divorced but it is convenient to retain that descriptor – was born in Country G on … 1982 and is in good health.  The respondent, whose date and place of birth is not immediately apparent from the materials, is of Country G extraction.  She was born on … 1989.  Her health is a matter it will be necessary to return to.

2. The parties are, in fact, distant cousins and it is clear that their respective families are quite closely interlinked.  Following what were plainly initiatives by some of their older relatives, the notion was arrived at that they might marry.  This had an obvious benefit to the applicant husband inasmuch as he ultimately was able to come to Australia on a spouse visa, obtain permanent residence and, I believe, citizenship, although, once again, that is not denoted in the materials. 

3. One might wonder whether the family of the wife saw the benefit of getting off their hands a young woman who, despite being in the scheme of things still then fairly young, but she was described by her uncle in the witness box as “getting old”.  This is obviously a cultural matter which reflect the culture and traditions of Country G as they apply in this family.  In any event, the marriage took place in 2008.  There was no prior cohabitation. 

4. They separated in December 2013 when the husband left the matrimonial home.  They were divorced in 2015 on … 2015 and the husband remarried, it would seem shortly thereafter.  He now has two children, one born on … 2016 and another born on … 2017.  His second wife does not work.  The wife now lives with her uncle who is her litigation guardian and the matrimonial home was lived in for some time by the husband and then rented out in 2017, the rent being applied to the mortgage. 

Evidence

1. It is important to pay close attention to the state of the wife’s health.  She has been examined and, I fully accept, in appropriate detail by Dr D who is a specialist in this field.  He has relevantly, for these purposes, assessed her as having a full scale IQ of 53.  Despite the skill with which Dr D was cross-examined, his evidence was wholly convincing.  I accept it in its entirety. 

2. It is not necessary to dwell in detail on the sort of difficulties that a person with that level of intellect is bound to face in everyday life.  I should say in passing, however, it is entirely consistent with, in effect, the evidence of all concerned, in any event.  She will never be able to work.  There is really no realistic prospect of her being able to obtain remunerative employment. 

3. Although she can self-care, dealing with her own personal hygiene and the like, in fact it is common cause that she was never able to contribute save in the most fleeting trivial ways to the maintenance of the household insofar as this concerned keeping the place clean, purchasing food and the like.  If she made any contributions by way of cooking, they were wholly minimal, although I note that the husband very properly and readily conceded that he was himself never the cook and this may also reflect a cultural norm to an extent. 

4. It does not matter because the fact is that the wife did very little.  The wife now, as she did during the relationship, spends a lot of her time watching the TV and on social media or in contact with her family, and in my view that is in no wise a matter of criticism but rather simply a reflection of her circumstances.  This brings us then against that introductory series of remarks to the decision of the High Court in Stanford & Stanford. 

Stanford & Stanford

1. Here, as in so many cases, however, the parties have radically altered the basis on which their finances are to be conducted, and both of them seek an adjustment.  It should be noted in passing that neither of them has sought to enforce an agreement entered into earlier when neither of them had legal advice, and I put that completely to one side accordingly. 

The Pool

1. The pool, which is best illustrated – although I am going to make some amendments – in the husband’s outline of case, consists of the former matrimonial home at Street A, Suburb B with a joint valuation of $525,000.  Neither side has any savings.  The husband’s superannuation at separation is accepted as having been $12,300.  There is a mortgage which was updated during the hearing, and I think is now slightly higher than that, $273,000.

2. There is a loan asserted by the husband to his aunt, Ms E, of which $15,000 is said still to be owing, and then there are two credit cards and a Westpac personal loan.  The husband concedes that there is no evidence to support those debts as at separation.  There is no mention of them in his affidavits whatsoever, and I am not prepared to include those debts in the pool accordingly; however, the loan to Ms E we will return to.

Contributions

1. The husband’s counsel’s submission is that the contribution element so favours his client that an adjustment of some 35 to 40 per cent is appropriate.  The wife’s counsel submits that the contributions were even.  It is a feature of this case that both sides have overstated matters in their own favour. 

2. During the five years of the relationship I accept that the stay at home wife’s contributions more generally were in fact much less than would ordinarily be the case.  She did no housework and effectively no cooking either.  The husband did all the housework even though he did not do the cooking.  One needs to bear in mind, however, that they still had the consortium of marriage for some five years.  The marriage did not founder immediately in circumstances where the wife’s difficulties must have been obvious from the inception of the relationship.  Furthermore, although it is a matter one needs to approach with caution, the husband did obtain the benefit of being able to come and live permanently in Australia. 

3. So far as the contribution to the matrimonial home is concerned, of course, a very substantial amount of that came from the first home owner’s grant, which was only open to the husband to apply for precisely because of his marriage to the respondent.  In truth, the Australian taxpayer was the biggest contributor to the purchase of the matrimonial home.

Section 75(2) Factors

1. I accept, however, that he borrowed $45,000 from his aunt which was applied at least at one point or another to the purchase of the property and I accept that he has repaid about $30,000. However, I point out that there is nothing in the loan document itself that suggests that that loan will be called upon in any meaningful timeframe and it remains at most a contingent liability, and so if one is doing the sums in the pool I would exclude it but I would bear it in mind under s.75(2)(o).

2. The husband was in the home, as I say, till 2017, paying such of the mortgage as was paid, and then rented it.  If one brings all these matters together, and, of course, it inevitably involves a matter of evaluation and degree, I would assess the contribution of the parties to the outcome as being in a proportion of 75 in favour of the husband and 25 to the wife.  That brings us then to the question of future needs. 

3. The husband has two children who are very young.  His income is presently reduced.  I found his evidence about the reduction in his work convincing.  I thought he was a witness of truth.  He was prepared to make concessions whenever they are to be made.  Obviously the fact that he is the sole earner and the fact that his income has presently decreased is relevant, but he has a qualification as a labourer.  He was able to obtain employment and I have no doubt he will be able to obtain employment in the future. 

Future Needs

1. The suggestion that his new wife would be able to earn is so speculative as to be uncertain, and I note that both of these parties come from families where traditional roles for women would appear on the evidence before the court to be the norm, in any event.  However, one does bear in mind that the possible employment of the new wife, about whom I know next to nothing, is out there as a lurking factor, so to speak. 

2. Against this, however, there is the wife’s disability.  It will be lifelong.  Her employment prospects are non-existent.  As counsel for the wife correctly says, where she would be if her uncle and his family were not helping is open to considerable question.  I do note that in the report from Dr D, which gives the only information that I can find in the materials about this matter, that the wife was born in Suburb H to Country G parents and that they separated when she was young and have both remarried.  It is not entirely clear who brought her up. 

3. Her circumstances in the future must be assessed as having very considerable possible difficulties if other family members do not come forward to stand in the shoes of Mr Jersey in due course, although from what he said I got the impression they probably would.  Once again, these are very much areas of evaluation and degree, but in my view the wife should receive overall a loading of some 25 per cent in respect of the future needs considerations. 

Findings

1. This produces a result of a fifty-fifty division of the pool and that leaves the question of superannuation.  The husband seeks a seventy-thirty split of superannuation as at separation and the wife seeks fifty-fifty.  Since I have come to a fifty-fifty conclusion overall, there should be a split of 50 per cent of the superannuation as at the date of separation being $12,300.

2. It seems to me inconceivable that either party will be able to purchase out the other.  The parties should sell the property and divide the net proceeds in equal shares. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  12 June 2019