Benning and Benning

[2017] FCCA 1092

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENNING & BENNING [2017] FCCA 1092

Catchwords:
FAMILY LAW – Undefended hearing – parenting and property.

Legislation:

Family Law Act 1975, ss.11F, 60CC, 75(2), 79(4), 106A

Applicant: MR BENNING

Respondent: MS BENNING

File Number: MLC 9984 of 2016

Judgment of: Judge Harland

Hearing date: 13 April 2017

Date of Last Submission: 13 April 2017

Delivered at: Melbourne

Delivered on: 13 April 2017

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: Cahill & Rowe Family Law

Counsel for the Respondent: Mr Testart

Solicitors for the Respondent: Morrison & Sawers

ORDERS

1. The wife have sole parental responsibility for the children X born (omitted) 2001 and Y born (omitted) 2003 (“the children.”)

2. The children live with the wife.

3. The husband’s time with the children be reserved.

4. The husband be restrained by injunction from contacting the children or either of them and from attempting to contact the children or either of them. 

5. The Wife be authorised and permitted to apply for and receive Australian passports and all necessary visas for the children without first obtaining the written consent of the Husband.

6. The Wife be at liberty to provide a copy of these Final Orders to any one or more of the following:

   (a)The Principal or delegate of the Principal of the school attended from time to time by the children or either of them;

   (b)Any medical practitioner and/or allied health professional treating the children or either of them; and

   (c)The relevant child welfare organisation.

7. Paragraph 1(d) of the Orders made on 30 November 2016 be discharged.

8. The Husband forthwith do all things necessary to transfer to the Wife all his right title and interest in the property at Property S ("the real property") to the Wife, to facilitate the real property being sold, (noting the real property is currently listed for sale with (omitted) Real Estate.

9. The Husband do all things and sign all documents necessary to enable the mortgage encumbering the real property to be discharged at settlement of the sale of the property.

10. The Wife have the full carriage of the sale including but not limited to:

    (a)Appointing an agent and a conveyancer;

    (b)Signing all necessary documents to effect the sale; and

    (c)Determining the sale price.

11. Upon settlement of the sale the proceeds thereof shall be applied as follows:

    (a)First, to pay all costs, commissions and expenses of the sale;

    (b)Secondly, to discharge the mortgage and any other encumbrances affecting the real property;

    (c)Thirdly, to pay all outstanding rates, utility accounts and any other outstanding invoices relating to the real property; and

    (d)Fourthly, the balance to the wife.

12. Pending completion of the sale the husband be retrained by injunction from occupying the property.

13. The wife retain, for her use and benefit absolutely, the motor vehicle registered in her sole name.

14. The husband retain, for his use and benefit absolutely, the Toyota (omitted) motor vehicle.

15. The husband retain all his right, title and interest (if any) in the estate of his late mother, Ms N.

16. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any moneys under these or any subsequent orders:

    (a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders;

    (b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

    (c)Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;

    (d)All insurance policies are to become the sole property of the owner named therein;

    (e)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

    (f)Any joint tenancy of the husband and wife in any real or personal estate is hereby expressly severed.

17. In the event that either party refuses or neglects to execute a deed and/or instrument in compliance with the provisions of 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 party so refusing and do all acts and things to give validity and operation to the deeds and/or instruments.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9984 of 2016

MR BENNING

Applicant

And

MS BENNING

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was initially listed for mention today after what was to be a child-inclusive section 11F conference. That conference did not go ahead, but the matter remained listed for mention today. The respondent seeks that the matter be finalised today on an undefended basis both with respect to the parenting orders and the property orders that she seeks in her amended response. I am satisfied that it is appropriate to make final orders today without the necessity for the matter to come back to Court.

3. I note that the mother has filed an affidavit of attempted service with respect to her most recent documents, being her amended response, case outline and updating affidavit. That the process server was not able to serve the documents on the applicant as he was not at the home and his father and brother, who identified themselves, were not willing to accept the documents on his behalf. 

4. Whilst he does not have the most recent documents, the mother’s initial response and affidavit states clearly what parenting and property orders she seeks. It is clear to the father what the mother is seeking. She seeks parenting orders that the children live with her, that she have sole parental responsibility and the children do not spend time with the father. She seeks property orders, she was seeking the sale of the property and that she retain the net proceeds of the sale.  Whilst the father does not have the updated material, he is well and truly on notice of the nature of the mother’s application. 

5. It was the father who commenced the proceedings on 14 October 2016, seeking parenting orders.  In his application, he said he had not been able to spend time with the children and thought that the children would be missing him.  He did make some admissions as to family violence and the fact that he has been convicted for breaches of intervention orders, and it would have been difficult for him not to admit that in the circumstances. 

6. When the matter was first before the Court on 30 November 2016, the father was represented, as was the mother, and consent orders were made placing the property on the market for sale and ordering that the parties and the children attend a child-inclusive conference.  There were no other parenting orders made.  By that date, the mother had filed the material that I have referred to.  The father’s solicitor filed a notice of discontinuance on 1 February 2017. 

7. The effect of that is that the father was no longer seeking any parenting orders and to participate in the proceedings.  This was in the face of knowing that the mother was seeking different orders to him with respect to parenting and was also seeking property orders.  He had been directed to file material with respect to the financial matters but failed to do so.  Because he filed the notice of discontinuance prior to the scheduled conference, I made orders in chambers cancelling that conference and kept the matter listed for today. 

8. The father has not filed any material with respect to the financial matters, and he has not attended Court today.  I am satisfied in all the circumstances that it is appropriate to make orders in his absence.  With respect to the parenting matter, the parties have two children, X born (omitted) 2001, aged 15 and Y born (omitted) 2003, aged 13 (“the children”).  The mother gives clear evidence in both her affidavits that the children and herself were subjected to significant family violence, that the children remain fearful of the father and do not want anything to do with him.

9. I note that attached to her first affidavit was some documents from the Department of Health and Human Services (“the Department”), one of which is fairly hard to read but indicates that the Department was involved with the family for some period before the Court proceedings began. One of the significant things was that the Department was giving the children some strategies as to how to deal with their father, including, somewhat significantly, telling them to call the police if the father yelled at them.  That is a fairly unusual thing to see.

10. The mother gives evidence that the children were relieved at not having to attend Court to see the family consultant and that they were concerned that they might have had to have seen their father.  The mother gives evidence that she and the children have had to move away.  They have not been able to live in the former matrimonial home because of fears that he would attend the home and commit further family violence, which has put herself and the children in some further financial difficulties, as the home has remained vacant and there has been a mortgage that has needed to be paid on it whilst the mother and children have not been able to live in that property pending its sale.

11. It is not necessary for me to set out in detail the material in the mother’s affidavit with respect to the family violence, but I certainly note that the father has not breached intervention orders in isolation but has breached them on multiple occasions and certainly has been convicted of some of those breaches and fined $5000.  I find that significant, as $5000 is a significant fine.  In my experience, it is far more common to see either convictions without a fine or fines of $500 or less.  That suggests to me that they were serious breaches, perhaps multiple breaches of the intervention order.

12. I am advised by the mother’s counsel today that his instructor received a call from the father’s former instructing solicitor yesterday, indicating that the father had called him and made threats and he was ringing the mother’s solicitor as a courtesy to another practitioner to advise that he had some concerns about his former client.  I am certainly comfortably satisfied that it is in these children’s best interests to make the parenting orders that the mother seeks and that there would be no benefit to them to making an order that the father spend any time with the children or communicate with the children.

13. I am satisfied that it is in the children’s best interests that they live with the mother and that she have sole parental responsibility.  The mother also seeks the ability to seek passports and visas for the children should she be in a position to take the children on a holiday overseas in the future.  She says quite frankly she cannot afford it at the moment and does not know if she will be able to but would like to have that option and that there would no capacity for her to communicate with the father to get his consent for those documents.

14. Simply having an order for sole parental responsibility without more is not sufficient for passports to be issued, and I am certainly satisfied that it is in the children’s best interests that should they have the opportunity to travel overseas – and sometimes children are able to do it through school or other ventures – they should be able to do that without the mother having to come back to Court to seek further orders in that regard, and so I am going to make the parenting orders that she seeks in her case outline in that regard.

15. I am mindful of the provisions in s.60CC of the Family Law Act 1975 (Cth) (“Family Law Act”), and certainly in this case the primary consideration which carries the most weight is the need to protect the children from further family violence and abuse.  I am satisfied that the children’s views are that they do not want to have a relationship with their father, and they are mature children.  I am satisfied that given the amount of family violence there has been in the past, that it would be of no benefit to them, and the mother has acted appropriately and protectively and has shown that she takes the responsibility of parenthood seriously, and I am satisfied that these orders are in the children’s best interests.

16. Turning to the property matters, it is an unfortunate situation where the mother will be much worse off financially at the end of this relationship than she was coming into the relationship.  The mother says that they were married in 2001 – I note the father says 1999, but he could not even say the date of when they were married – and that they separated in 2015.  The mother had an interest in a property at the beginning of the relationship, which was subject to mortgage.  She says the father had an old car.

17. In addition to the property that the mother had an interest in, in 2010 the mother received an inheritance of $100,000, and she applied part of those proceeds towards the purchase of a house and part for other expenses for the benefit of the family.  The parties purchased the former matrimonial home in April 2012.  The mother sold the home that she had at the beginning of the relationship, and $180,000 of the proceeds of sale of that property were put into the former matrimonial home.

18. The mother was diagnosed with multiple sclerosis in 2010, and by 2013 her condition had worsened such that she could no longer work, and she is currently in receipt of a disability support pension.  Due to the mother’s health, she was able to access her superannuation in 2014 and received $169,499 from her superannuation fund.  She says that she has spent all of those funds on living expenses and she needed to rehouse herself and the children in an unknown location for their safety.

19. The former matrimonial home is on the market for sale.  There was a significant mortgage on the property, and the mother’s best-case scenario is that she may wind up with cash of about $70,000, but it may well be that she winds up with considerably less or, indeed, nothing at all once the sale expenses are paid for, the mortgage is discharged and her credit card is paid.  One of the difficulties has been the mortgage falling into arrears because of the mother not having the capacity to pay and the father not paying the mortgage.

20. The extent of the father’s financial circumstances are unknown because he has not filed any material.  The mother says he has a car and he has superannuation of perhaps $20,000.  He may have more than that.  She says he has also told her that he has an interest in his late mother’s estate.  The father has had the opportunity to attend Court and to put evidence before the Court as to his financial circumstances but has not done so.

21. The mother will continue to have the sole care of the children and will continue to be in receipt of government benefits. Considering the provisions under ss.79(4) and 75(2) of the Family Law Act, I am satisfied that it is just and equitable in the circumstances of this case to make the orders that the mother seeks and that the property be sold and that she retain the whole of the proceeds, which, as I have indicated, will be incredibly modest or non-existent. 

22. It is unlikely that the father is going to cooperate with the sale, and it was already necessary for the mother to bring an application pursuant to s.106A of the Family Law Act to have a Registrar of the Federal Circuit Court of Australia sign the documents required to put the property on the market for sale because the father refused to do so despite consenting to orders for the sale of the property.  Therefore, I find it is also appropriate to make the orders that the mother seeks for her to have full carriage of the sale of the property.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 24 May 2017