Busch and Dyer

[2019] FCCA 956

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUSCH & DYER [2019] FCCA 956

Catchwords:
FAMILY LAW – Property dispute – marriage lasting less than 2 years – clearly not just and equitable to make an order adjusting the parties’ property interests – wife ordered to vacate matrimonial home within 21 days.

Legislation:

Family Law Act 1975

Cases cited:

Stanford v Stanford [2012] HCA 52

Applicant: MR BUSCH

Respondent: MS DYER

File Number: MLC 3602 of 2018

Judgment of: Judge Burchardt

Hearing date: 8 February 2019

Date of Last Submission: 8 February 2019

Delivered at: Dandenong

Delivered on: 16 April 2019

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

1. The wife vacate the former matrimonial home at Property A on or before 8 May 2019.

2. In default of compliance with Order (1), a Warrant of Possession issue forthwith.

3. That, unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders;

   (a)The Applicant and Respondent each be declared to be the sole legal and beneficial owner of all other items of property presently in the possession, custody or control of each of them respectively including, but not limited to money, motor vehicles, furniture, furnishings, appliances, jewellery, equities, choses-in-action and personal effects;

   (b)Each party hereby forgoes any claim they may have to any Superannuation benefits belonging to or earned by the other;

   (c)All insurance policies to become the sole property of the owner named thereon;

   (d)Monies standing to the credit of either party in any bank account are to become the property of that party;

   (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 parties in any real or personal estate is hereby expressly severed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 3602 of 2018

MR BUSCH

Applicant

And

MS DYER

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a very unusual property dispute.  The applicant husband does not seek a property adjustment between the parties, but that the respondent wife be forced to move out of the former matrimonial home, together with her daughter who also lives there.  The respondent wife, whose position has not been easy to construe, appears to say that she is prepared to move out of the house towards the end of the current high school year, and demands, alternatively, $25,000, this, as it turns out, being the substance of an earlier without prejudice offer, which Ms Dyer introduced into evidence. (Although the parties are divorced, it is convenient to refer to them as husband and wife).

The Procedural History

1. The husband filed his Initiating Application on 14 August 2018.  There is on the Court file what purports to be an Acknowledgement of Service filed on 27 August 2018, which appears to bear the same signature as that on the wife’s Notice of Address for Service subsequently filed.

2. The matter first came before the Court on 23 October 2018, and the wife did not attend.  Given that she had been served the matter was adjourned to 8 November 2018, and the respondent was directed to attend Court.  The Court ordered the applicant to serve the respondent via email with a copy of the orders, and noted that a Warrant of Arrest would have eventuated if the wife did not attend.  The then solicitors for the husband complied with the service of those orders as is shown by the Affidavit of Ms B, filed 26 October 2018.

3. On 8 November 2018 the wife attended Court and was represented by the Duty Solicitor.  As an interpreter was not present the matter was adjourned to 12 November 2018, and the wife was, again, directed to attend Court.

4. On 12 November 2018 both parties appeared unrepresented, and the respondent was assisted by an interpreter.  She was directed to file and serve a Response and Affidavit on or before 19 November 2018.  This endeavour to bring some sort of orderly procedure to bear upon what even, at that stage, was obviously likely to be a chaotic proceeding proved unavailing.  The matter returned to Court on 20 November 2018.  The wife, again assisted by an interpreter, had not complied with the orders to file her materials.

5. Such was the nature of the debate that I concluded that the only practicable approach was to set the matter down for an early hearing, and I therefore listed the matter for 8 February 2019 for trial.  I further directed the wife to vacate the former matrimonial home at Property A, on or before 11 December 2018.  It was directed that in default of compliance a Warrant of Possession would issue.

6. As things transpired the wife treated that order with disdain and did not vacate the premises, but the husband did not apply for a Warrant of Possession prior to trial.

Agreed or Uncontested Matters

1. As already indicated, the wife has filed no materials in these proceedings, despite the opportunities to do so.  The only affidavit is that filed by the husband.  From the way the matter was conducted before me, it would seem that the following recitation is, essentially, uncontroversial.

2. The husband was born on … 1967.  He was a tradesman for 21 years, but on … 2017 he ceased work and has since lived off his savings.  The wife was born on … 1976. She came to Australia in … 2009 and achieved permanent residence in … 2016 after her marriage to the applicant.  She has two children, [X], age 21, and [Y] born on … 2002, aged 16 years.

3. The parties met in … 2013 and married on … 2013.  According to the husband they separated under the same roof in January 2015.  A subsequent Intervention Order application by the wife was allegedly struck out on 28 June 2016, and the husband has deposed that he had had no speech with the wife since.  His Application for Divorce was filed on 5 April 2018 and became final on 15 July 2018.

4. Prior to the commencement of the relationship the husband was the owner of the former matrimonial home at Property A, which was unencumbered.  He had bought it as long ago as … 2001 and the mortgage was paid off by late 2004.  The husband also owned a property at Property C, which he bought in … 2010.  He continues to be the sole registered proprietor thereof.

5. The husband deposed that the wife at the commencement of the relationship owned a property in Property D, and was operating a business.  She allegedly sold the business shortly thereafter, and had not done significant, if any, work since then.  The husband deposed that the parties always had separate bank accounts.  He deposed that the wife made no contributions to the utilities, rates and the like of the matrimonial home, and that the parties were so to speak, financially separate throughout the relationship.

The Submissions Made and Evidence Given at Court

1. What follows is taken from my notes.

2. The husband opened his case.  He said he believed the wife married him to get permanent residency.  She had given no indication of love or care for him.  She used him to secure permanent residence.  Her visa was about to expire.  Before the marriage the wife was charming.  She was faking.  The wife has said she would move out when the divorce order was made, and had given her word she would move out.  She had cost him $10,000.  There should be no adjustments to their property interests.

3. The husband was sworn and adopted his Affidavit and Financial Statement as true and correct.

4. The wife’s questioning of the applicant was, of course, complicated both by the fact that English is not her first language (she managed to conduct most of this in English with only occasional assistance from the interpreter), and by her lack of legal training.  She put questions to the husband to the effect that the divorce was inappropriate, as they were living together, that they usually had dinner, and she referred to his favourite foods of rice and sauce.  The husband said that she treated him like a stranger in his own house.

5. The wife appeared to suggest that her Country E husband had paid money, which had enabled the purchase of the property in Property C.  Mr Busch said he owned the matrimonial home before he met the wife, and she owned Property D.  It was a rental property in Property C.  The husband was questioned about some $25,000 allegedly transferred to (or possibly from, it was hard to follow) the ANZ to pay the wife’s daughter, but he said he did not know.  He said they never shared financial matters at all.

6. He denied that the wife had paid anything for housekeeping.  He conceded that the wife paid for food, but he paid his share.  He said he was fed leftovers.  She contributed zero to household utilities.  When the wife put it that she had paid the electricity bill once he rejected this.  In re-examination the husband confirmed that he had owned Property A for 10 years before he met the wife.  The Property C property was bought in 2010 with a $150,000 loan.

7. The wife was called.  She gave her occupation as a public servant. The parties met in … 2013 and were married on … 2013.  She accepted that the parties lived apart since January 2015.  She had a separate room from him.  She said that he wanted her to prove about the Property D house.  She would not move out until her daughter finishes high school, but the husband told her to move out.  She demanded that he give her $25,000.  She said he had never given her money.  She said for five years she has received no money from him.  He had never told her he had rented his property to his sister.  She said she wanted to stay until her daughter finished high school this year.

8. Under cross-examination by Mr Busch about their intimate relations the wife, if I understood it correctly, said they had sexual relations twice in Property D and three times at Property A.  His offer of $25,000 had not been accepted.

9. Final submissions added nothing material, save that I note that the husband appeared to suggest that he sought seven months’ rent from the wife.  This appeared to be interrelated to the moneys he had spent on lawyers in obtaining their divorce.  The wife confirmed that she has not paid any rent since separation in 2015.

Stanford v Stanford

1. The Court’s first task is to ascertain the legal and equitable interests of the parties and determine whether it is just and equitable that there be a property settlement.  In this case, it seems clear beyond any doubt that the husband is the sole registered proprietor both of the former matrimonial home in Property A and the rented property in Property C.  It is not entirely clear whether the wife is the owner of the property in Property D.  She did not traverse any denial of her ownership in any meaningful way, either in what she said in evidence‑in‑chief or in cross-examination.  The Court is left in a state of some uncertainty as to whether she is the owner, either registered or in some equitable fashion, of this property.  Otherwise, the party’s property interests are unremarkable.

2. The extraordinary feature of this case is the total failure, on the wife’s part, to engage with the terms of the Family Law Act 1975 (“the Act”). Her failure to understand the precise terms and terminology of the Act is in no way surprising, as she is not a lawyer and English is not her first language, and she could reasonably be expected to be unfamiliar with the law in this country.

3. Nonetheless, Ms Dyer’s position really amounts, in substance, to an assertion that because she was married to Mr Busch from … 2013 until January 2015 she is entitled as of right to remain in the matrimonial home with her daughter until this daughter finishes high school at the end of 2019.  It is readily apparent that this is a radically unsound proposition.

4. In truth, these parties were married for well under two years.  Whether or not Ms Dyer married Mr Busch simply to get a visa (and I incline strongly to the view that she did) is irrelevant.  What is relevant is that during the currency of the relationship the parties did not mix their funds in any way.  The wife may, indeed, have contributed to the food and paid a bill here or there, but they never had any joint bank accounts and never conducted their finances together.

5. It is noteworthy, although of course not in any way decisive, that were this a de facto relationship, s 90SB of the Act would prevent the Court from making any property order unless, relevantly, a failure to make an order would result in serious injustice to the wife.

6. The matter, in my view, can be put shortly.  In circumstances where the marriage was of such fleeting duration, the party’s property interests, so far as they are disclosed, were wholly set in stone well before that relationship.  Neither party has obtained any financial gain out of the relationship save to the extent that the wife has lived rent free for some three or four years.  It is plainly not just and equitable that there be a property division.  Each of these parties must keep what they had at the start.

7. No other outcome would, in any way, be just and equitable.  It is not, in any way, unjust to the wife not to make a property adjustment in her favour.  The totality of the circumstances of this marriage militate to finality against it.

Possession of the Property

1. The wife’s position appears to be that her daughter needs a settled environment in which to study and complete her final year of secondary education.  Whether living under the same roof with someone you fail to communicate with at all, and with whom,  judging from the dynamic in Court, you have the poorest relationship, is conducive to providing the wife’s daughter with a good place to study must be open to question.

2. More to the point, the wife has no legal or equitable interest in the matrimonial home whatsoever.  She should have moved out long ago, and, indeed, has been ordered by the Court to do so in November 2019.  She has simply failed to comply.  I have no doubt the wife will not comply with any orders the Court is likely to make.  I propose to issue a Warrant of Possession exercisable in 21 days to give the wife time to move out.

Conclusion

1. As indicated at the start, this is an extraordinary case, turning on a very particular set of facts.  It is rare indeed that no property adjustment is appropriate where there has been a marriage.  Notwithstanding this, however, the nature of the party’s property holdings, and when they obtained them, the extraordinary brevity of the marriage, the lack of any kind of common contribution or purpose or resultant outcome, all make it entirely just and equitable that each party retain any property they otherwise possess, and that a Warrant of Possession issue as I have described.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 16 April 2019