Camilli & Albini
[2021] FamCA 48
•16 February 2021
FAMILY COURT OF AUSTRALIA
Camilli & Albini [2021] FamCA 48
File number(s): MLC 2939 of 2020 Judgment of: JOHNS J Date of judgment: 16 February 2021 Catchwords: FAMILY LAW – PROPERTY – final orders – undefended hearing – where the applicant seeks final property orders – where the respondent has failed to participate or file any material in the proceedings – leave is granted for the applicant to proceed on an undefended basis – where the parties were in a de facto relationship for approximately 10 years – where the parties’ asset pool is extremely modest – where the applicant is seeking that she retain the majority of the assets including the former matrimonial home – where the applicant’s direct financial contributions are overwhelming – order that the applicant retain the former matrimonial home. Legislation: Family Law Act 1975 (Cth) ss 4AA, 79, 90SB, 90SF, 90SM, 106A
Family Law Rules 2004 (Cth) r 11.02
Cases cited: Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545
Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592
Hunter & Borman and Anor [2020] FamCAFC 250
Stanford v Stanford (2012) 247 CLR 108
Watson & Ling [2013] FamCA 57; (2013) FLC 93-527
Number of paragraphs: 68 Date of hearing: 4 February 2021 Place: Melbourne Solicitor for the Applicant: Ms Bradford, McDonald Slater & Lay The Respondent: No appearance ORDERS
MLC2939/2020 BETWEEN: MS CAMILLI
Applicant
AND: MR ALBINI
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
16 FEBRUARY 2021
THE COURT ORDERS THAT:
1.That within 30 days the Respondent do all such things and sign all such documents as are required to transfer to the Applicant all his right, title and interest in the property at B Street C Town in the State of Victoria being the land more particularly described in Certificate of Title Volume … Folio… and the Applicant indemnify the Respondent in respect of all and any liabilities associated with the property past, present and future.
2.In the event that the Respondent fails or refuses to comply with order 1 hereof, upon the Applicant’s solicitor filing an affidavit deposing as to the Respondent’s failure to comply with order 1, an Officer of the Court may execute any deed or instrument in the name of the Respondent pursuant to Section 106A of the Family Law Act 1975 to give effect to these Orders.
3.That unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Order:-
(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 he/she 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 herein;
(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 applicant and the respondent in any real or personal estate is hereby expressly severed.
4.That the Applicant cause a sealed copy of these orders to be served on the respondent as follows:-
(a)By registered post to the respondent care of:-
(i)Mr D at H Street, Suburb J;
(ii)Ms F at K Street, L Town; and
(iii)Ms G at M Street, Suburb N;
together with a letter to each of the named recipients requesting that they urgently bring the sealed envelope and its contents to the attention of the Respondent.
(b)By email to the respondent at
5.The Initiating Application filed on behalf of the Applicant on 18 March 2020 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Camilli & Albini has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).REASONS FOR JUDGMENT
INTRODUCTION
The applicant commenced proceedings in this Court on 18 March 2020 seeking final property orders. The respondent has not filed any material in response to the applicant’s application. Further, the respondent has failed to appear at Court throughout the entirety of these proceedings.
As a result, the applicant sought and was granted leave to proceed with her application for final property orders on an undefended basis. These are my Reasons for Judgment with respect to the application for leave to proceed undefended and the applicant’s property application.
THE PARTIES
The applicant, Ms Camilli, is aged 82. She is retired and her only source of income is a pension from Centrelink. The applicant currently resides at B Street, C Town (“C Town”), which is registered in the joint names of the applicant and the respondent. The applicant has two adult daughters from a previous relationship.
The respondent, Mr Albini, is aged 75 and at the time of the parties’ separation was unemployed. His current address and employment status is unknown. He has failed to file any material or participate in these proceedings in any way.
The parties commenced living together on 27 October 2009 and separated on a final basis on 30 September 2019.
MATERIAL RELIED UPON
The applicant relies upon the following documents:-
·Outline of Case filed 3 February 2021;
·Initiating Application filed 18 March 2020;
·Affidavit of the applicant filed 21 December 2020;
·Financial statement of the applicant filed 18 March 2020;
·Affidavits of Elda Bradford (2) filed 8 September 2020;
·Affidavits of service (2) filed 18 January 2021; and
·Affidavit of Elda Bradford filed 30 June 2020.
ORDERS SOUGHT
In her Initiating Application filed 18 March 2020 the applicant sought final property orders as follows:-
(1)The Respondent transfer all his right title and interest in the property at B Street, C Town Vic being the land contained in Certificate of Title Volume … Folio … to the Applicant.
(2)The Applicant indemnify the Respondent in respect of any and all liabilities in connection with the property.
(3)Otherwise each party retains the assets presently in their possession.
(4)Such further or other Orders as the Court deems fit.
The applicant amended the form of the orders sought by her in her Outline of Case filed 3 February 2021 to provide more detail; the effect of the orders sought by her was unchanged. In that document and at the hearing before me she sought final property orders in the following terms:-
(1)That the Respondent do all such things and sign all such documents as are required to transfer to the Applicant all his right, title and interest in the property at B Street C Town in the State of Victoria being the land more particularly described in Certificate of Title Volume … Folio … and the Applicant indemnify the Respondent in respect of all and any liabilities associated with the property past, present and future.
(2)In the event that the Respondent fails or refuses to do all acts and things and sign all documents necessary to give effect to these Orders, an Officer of the Court may execute any deed or instrument in the name of that person pursuant to Section 106A of the Family Law Act 1975 to give effect to these Orders.
(3)That unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Order:
(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 he/she 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 hereon;
(e)Each party be solely liable for an 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.
(4)The Application filed on behalf of the Applicant on 18 March 2020 be dismissed.
Notation:
The Court notes that the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and made to avoid further proceedings.
(As per the original)
SHOULD THE APPLICANT HAVE LEAVE TO PROCEED WITH HER APPLICATION ON AN UNDEFENDED BASIS?
Given the failure of the respondent to engage with the proceedings, the applicant sought leave to proceed with her application for final property orders on an undefended basis.
As noted earlier the applicant commenced proceedings on 18 March 2020. The matter first came before the Court at a Case Assessment Conference before Registrar Moser on 2 July 2020. At that hearing the applicant sought orders for substituted service in circumstances where the respondent’s whereabouts were unknown. The applicant sought orders for substituted service upon the respondent through his email, as well as via post to his sister-in-law, his brother and his niece.
In her affidavit filed 30 June 2020 the applicant’s lawyer, Ms Bradford deposed as to the efforts made to locate the respondent, which included engaging an investigation agency to locate him. Ms Bradford deposed that the respondent’s brother and sister-in-law had been located as had an email address for the respondent. Further she deposed that on 15 April 2020 she sent an email to the respondent requesting that he contact her. Ms Bradford deposed that the respondent did telephone her that day and informed her that he would not consent to the transfer of the C Town property to the applicant and that he would need to consider his position; he informed Ms Bradford that he would call her again on 17 April, 2020. Ms Bradford deposed that the respondent did not contact her on 17 April 2020 and that he has not communicated with her since that conversation. During her oral evidence, Ms Bradford confirmed that she had received no further communication from the Respondent since that conversation on 15 April 2020.
Orders were made for substituted service on 2 July 2020, those orders providing as follows:-
…
(2)Further service of the Initiating Application filed 18 March 2020 be dispensed with on the condition that on or before 9 July 2020 the Applicant posts by Express Post in a sealed envelope to Mr D at H Street, Suburb J, sealed copies of the following documents:
(a)the said application;
(b)the Financial Statement of the Applicant sworn and filed 18 March 2020;
(c)the affidavit of Elda Bradford sworn and filed 30 June 2020; and
(d)this order;
together with a letter to the said Mr D requesting that he urgently bring the sealed envelope and its contents to the attention of the Respondent.
(3)The Respondent file and serve a Response to Initiating Application and a Financial Statement by no later than 20 August 2020.
(4)The Applicant file an Affidavit of Service as to compliance with paragraph 2 herein prior to the adjourned date.
…
On 8 September 2020, Ms Bradford filed an affidavit of service in compliance with the orders made 2 July 2020. Ms Bradford therein deposes to the service of the applicant’s Initiating Application, financial statement and the orders made 2 July 2020 upon the respondent by registered post, care of his brother, Mr D. Ms Bradford also deposes that on 12 August 2020 she sent further letters to the respondent care of his brother, Mr D, his niece, Ms F and his sister-in-law, Ms G advising him of the adjourned hearing date. Having regard to Ms Bradford’s unchallenged evidence, I am satisfied that the applicant has complied with the orders of 2 July 2020 regarding substituted service.
On 28 August 2020, further orders were made by Registrar Moser which provided as follows:-
(1)All extant applications are adjourned to the Registrar’s Directions List on 18 November 2020 at 9.30am.
(2)The Respondent attend and / or be represented on that date.
(3)The Respondent no later than 6 November 2020 file and serve a Response to Initiating Application and a Financial Statement.
(4)The lawyer for the Applicant no later than 11 September 2020 serve a sealed copy of these Orders upon the Respondent by posting the same by Express Post in a sealed envelope to Mr D at H Street Suburb J, Victoria, together with a letter to the said Mr D requesting that he urgently bring the sealed envelope and its contents to the attention of the Respondent.
(5)The lawyer for the Applicant no later than 6 November 2020 file an Affidavit of Service as to compliance with paragraph 2 of the orders of 2 July 2020 and paragraph 4 hereof.
(6)Should the Respondent fail to comply with paragraphs 2 and 3 hereof, subject to compliance by the Applicant with paragraphs 4 and 5 hereof, then the Applicant shall on 18 November 2020 be at liberty to apply to seek leave to proceed with her application filed on 18 March 2020 on an undefended basis.
…
In her affidavit filed 8 September 2020, Ms Bradford deposes at paragraph 2 that she “served a sealed copy of the Order on the Respondent by posting a letter dated 3 September 2020 Express Post in a sealed envelope addressed to Mr Albini c/- Mr D H Street Suburb J Vic together with a letter to Mr D requesting him to urgently bring to the attention of the Respondent, Mr Albini, the contents of the sealed envelope and the Order.” Having regard to that unchallenged evidence I am satisfied that the applicant has complied with the orders as to service dated 28 August 2020.
The matter was listed for a Directions Hearing on 18 November 2020 before Registrar Moser. Notwithstanding the orders made 28 August 2020 requiring his attendance at that hearing, the respondent did not appear, nor did he file a Response to Initiating Application or a Financial Statement in accordance with those orders. That day orders were made adding the matter to the list of cases awaiting allocation to a judicial docket, “noting that it is anticipated that the matter will proceed undefended.”
The matter came before me on 10 December 2020 for a case management hearing. That day I listed the matter for final hearing to commence before me on 4 February 2021 as a one day matter. Orders were made for the applicant and the respondent to file and serve trial documents. Given the failure of the respondent to engage in the proceedings I made further orders as follows:-
(14)That in the event of the failure of the respondent to comply with orders 4, 11 or 13 hereof, the applicant have leave to seek to proceed with her application for final property orders on an undefended basis.
(15)That the applicant cause a sealed copy of these orders and the documents filed pursuant to orders 2 and 5 of these orders on the respondent as follows:-
(a)By registered post to the respondent care of:-
(i)Mr D at H Street, Suburb J;
(ii)Ms F at K Street, L Town;
(iii)By email to the respondent at ...
(16)That by 4.00pm on 1 February 2021 the applicant file and serve an affidavit of service evidencing compliance with Order 15 hereof.
The orders of 10 December 2020 also contained the following notations:-
(a)To date the respondent has failed to participate in these proceedings.
(b)The applicant has indicated to the Court that in the event of the respondent’s non-compliance with these orders she will seek leave to proceed with her application for final orders on an undefended basis and will seek that the respondent transfer his interest in the property at P Street, C Town to her.
(c)The Court may make orders in the respondent’s absence in the event of his non-attendance at Court on 4 February 2021.
In compliance with the orders of 10 December 2020, on 18 January 2021 Ms Bradford filed an affidavit of service on behalf of the applicant in which she deposed that on 14 December 2020 she served the orders made 10 December 2020 on the respondent by way of post and email. During her oral evidence given at the hearing, Ms Bradford confirmed that the orders were mailed to both Mr D and Ms F by registered post.
Ms Bradford filed a further affidavit of service on behalf of the applicant on 18 January 2021. In that affidavit Ms Bradford deposes that on 22 December 2020 she served upon the respondent the applicant’s affidavit filed 21 December 2020 as well as another copy of the orders made 10 December 2020. Ms Bradford deposes that she served these documents via post and email, at the addresses listed on the orders of 10 December 2020. Again, during her oral evidence Ms Bradford confirmed that that correspondence was forwarded by registered post. The evidence of Ms Bradford as to the steps taken by her to effect service of court documents and orders upon the respondent is unchallenged and I accept that evidence.
During her oral evidence Ms Bradford confirmed that save for her telephone conversation with the respondent on 15 April 2020, she has received no communication or correspondence from him. Ms Bradford also confirmed that she has received no communication or correspondence from Mr D, Ms F or Ms G in relation to the documents forwarded to them by registered post for service upon the respondent. I accept that evidence.
Notwithstanding the service of documents upon the respondent through his brother, sister-in-law and niece as well as via his email address, the respondent has failed to file any material in preparation for the hearing before me. In addition, the respondent failed to appear at the final hearing via Microsoft Teams this day, despite an email invitation having been forwarded to him by the Court on 1 February 2021 to his only known email address.
It was submitted by the applicant’s lawyer and I accept that the respondent has had notice of these proceedings since at least 15 April 2020 when he spoke to the applicant’s lawyer about the ongoing proceedings. It was submitted by the applicant that the respondent has failed to engage in the proceedings, notwithstanding having had several opportunities to do so since their commencement in March 2020. I accept that submission.
Further, the applicant submits that the orders made 10 December 2020 provided notice to the respondent that in the event of his non-compliance with those orders, the applicant would seek leave to proceed with her application on an unopposed basis and further that she would seek a transfer of the C Town property to her. The notation to those orders also informs the respondent that the Court may make orders in his absence in the event of his non-attendance at the hearing.
Rule 11.02(2)(c) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that if a party does not comply with the rules, the regulations or a procedural order, the Court may, amongst other things, determine the case as if it were undefended. An undefended hearing means that the respondent does not participate at all; from the Court’s perspective, there is no live issue between the applicant and the respondent.
Having regard to the evidence of the applicant’s lawyer, I am satisfied that service of the orders dated 10 December 2020 and the applicant’s material has been effected upon the respondent in accordance with those orders. I am satisfied that the respondent had notice of the hearing listed before me on 4 February 2021 and of the fact that the applicant would seek to proceed with her application for final property orders on an undefended basis in the event of his non-compliance with the 10 December 2020 orders. I am also satisfied that the respondent had notice that the Court may make orders in his absence. Finally, having regard to the evidence of Ms Bradford, I am satisfied that the respondent has had notice of the material relied upon by the applicant in support of her application for final property orders.
Given my findings as to the respondent having had notice of the proceedings and of the material relied upon by the applicant, I am satisfied that the respondent has been afforded procedural fairness. In light of the respondent’s failure to appear at the hearing, to engage legal representation or to file any documents in the proceedings, I am satisfied that the applicant should have leave to proceed with her application for final property orders on an undefended basis.
THE HEARING
The applicant relied upon the material referred to above and the submissions of her lawyer. In addition, both the applicant and her lawyer gave brief oral evidence in support of the application.
BACKGROUND
The applicant’s unchallenged evidence as to the parties’ background is as follows.
The parties commenced a relationship in October 2008 whilst the respondent was on a visitor’s visa in Australia from Country Q. At that time he was living with members of his family in Melbourne. The applicant deposes that at that time the respondent had no money or possessions other than his own clothing.
The parties commenced living together at the applicant’s home at R Street, Suburb S (“Suburb S”) on 27 October 2009. At the commencement of their cohabitation the applicant was the sole owner of the unencumbered property at Suburb S and its contents, and had savings. The applicant did not work and was in receipt of a Centrelink pension.
The applicant paid the sum of approximately $5,000 for immigration lawyers to commence procedures to obtain a partner visa for the respondent to ensure he was able to remain living in Australia. As the respondent could not find employment, the applicant sponsored him for the ten years over which the parties were living together and assumed sole responsibility for his financial support.
In or around 2013 the applicant sold the Suburb S property, the net proceeds of sale being approximately $120,000. The applicant applied those funds to the purchase of the C Town property for $107,000 plus other sale expenses. The C Town property is currently valued at approximately $138,000.
The C Town property was registered in the parties’ joint names. The applicant deposes at paragraph 17 of her affidavit filed 21 December 2020 that:-
[The respondent] suggested that we purchase the house in joint names to enhance his residency application and he assured me that he would transfer the property back to me once he had his citizenship. I loved and trusted him and accordingly I agreed to the registration of the property in joint names.
In December 2013 the respondent was granted permanent residency in Australia. At about that time the applicant purchased a motor vehicle 1 for the sum of approximately $8,000. That vehicle was registered in the respondent’s name.
The respondent was granted Australian citizenship on 23 September 2019.
On 27 September 2019, the respondent informed the applicant that he wished to separate and be began moving his possessions. The respondent vacated the C Town property on 30 September 2019 taking his possessions and the motor vehicle 1. During her oral evidence the applicant stated that in addition to the motor vehicle the respondent removed a computer, a photocopier, many tools and his clothing. She estimates the value of the chattels removed and retained by him to be between $15,000 and $20,000.
The applicant deposes at paragraph 27 of her affidavit that:-
[The respondent] had stated that he would transfer the house back to me after he left because he hadn’t paid for it, and that he only wanted his car and his other belongings. I agreed to him taking the car and his belongings and said that I would get the paperwork for the house ready for him to sign.
The applicant has not heard from the respondent since that conversation. The applicant’s solicitor has attempted to communicate with the respondent numerous times, and save for one conversation referred to earlier in the judgment, he has not responded to the applicant’s requests.
As a result, the applicant seeks final property orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”).
LEGAL PRINCIPLES
Property applications with respect to de facto relationships are determined in accordance with the provisions of Part VIIIAB of the Act.
Pursuant to s 90SB of the Act, a court may make an order under s 90SE, 90SG or 90SM in relation to a de facto relationship only if the court is satisfied of the following:-
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b)that there is a child of the de facto relationship; or
(c)that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
A “de facto relationship” is defined in the Act at s 4AA as follows:-
Meaning of de facto relationship
(1)A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2)Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
At paragraph 1 of her trial affidavit the applicant deposes that she has been “…in a de facto relationship with the Respondent Mr Albini…since 27 October 2009” and that they separated in September 2019. She deposes that they commenced living together at her home in Suburb S in October 2009 and that during the period of cohabitation she provided financial support for the respondent, purchased him a motor vehicle and that the C Town property was registered in the parties’ joint names.
Having regard to that unchallenged evidence I am satisfied that the parties have been in a de facto relationship for a period greater than two years and that accordingly, the Court has jurisdiction to determine the applicant’s application for final property orders.
The High Court considered the approach to be adopted in the determination of proceedings pursuant to s 79 of the Act in the decision of Stanford v Stanford (2012) 247 CLR 108 (“Stanford”). At page 121 the High Court stated that “[t]he power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down””. Section 90SM(3) of the Act provides that a Court should not make an order for a de facto property settlement unless it is satisfied that it is just and equitable to do so.
In the matter of Hunter & Borman and Anor [2020] FamCAFC 250, at paragraph 31 the Full Court stated as follows with respect to the applicability of these principles to the de facto provisions contained within the Act:-
It is not open to doubt that the High Court’s statement of principle in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) as to the proper interpretation and application of s 79(2) and s 79(4) of the Act apply equally to the interpretation and application of s 90SM(3) and s 90SM(4) of the Act respectively.
The Stanford decision has been considered in detail by the Full Court in Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 (“Bevan”) and more recently in Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592.
In Bevan at [73] the Full Court referred to the three “fundamental propositions” laid down by the High Court which should guide trial judges in approaching the task under s 79 or 90SM. They were summarised as follows:-
(1)Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
(2)The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
(3)A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
(emphasis in original)
Accordingly, in determining applications pursuant to s 90SM of the Act, the Court is required to:-
·Identify the parties’ respective legal and equitable interests in property;
·Determine whether, in accordance with s 90SM(3), it is just and equitable to make a property settlement order having regard to the parties’ existing interests;
·Determine all relevant contributions of each of the parties;
·Identify and weigh against each other the matters set out in s 90SM(4)(a) to (c) inclusive of the Act; and
·Consider the matters contained in s 90SM(4)(d) to (g) inclusive of the Act and make a determination as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of their contributions, particularly having regard to the provisions of s 90SF(3) of the Act.
The Act does not prescribe the order in which the matters in s 90SM(4) of the Act are to be considered. The circumstances of individual de facto relationships as to their nature and form differ; how parties have organised and lived within the relationship are factors which may be relevant in the exercise of the discretion pursuant to s 90SM(3) of the Act.
The Court’s approach may be less compartmentalised than was previously the case and a more “holistic” approach adopted, as was described by Murphy J in Watson & Ling [2013] FamCA 57; (2013) FLC 93-527 at [13].
THE PARTIES’ EXISTING LEGAL AND EQUITABLE INTERESTS IN PROPERTY
The failure of the respondent to participate in the proceedings and comply with orders of the Court requiring him to file documents, including a financial statement, results in some uncertainty as to the extent of the parties’ legal and equitable interests.
The applicant’s evidence as to the parties’ legal and equitable interests is that contained in her trial affidavit and financial statement, together with oral evidence given by her at the hearing. She identifies the parties’ assets and liabilities as follows:-
Assets
B Street, C Town E$138,000
Applicant’s CBA savings account E$12,000
Applicant’s motor vehicle 2 E$ 5,000
Applicant’s chattels E$ 5,000
Motor vehicle and chattels retained by respondent E$15-20,000
Total E$180,000
Save for the C Town property, none of the assets of the parties have been valued. The figures referred to above are the applicant’s estimates as to the value of the items identified. Notwithstanding the absence of admissible evidence as to the value of those items, I am satisfied that it is appropriate for orders to be made as to the division of the parties’ interests in circumstances where the parties’ pool of assets on any view is extremely modest and where the respondent is on notice as to the applicant’s application.
Would it be just and equitable to make an adjustment to interests in property?
The parties shared a relationship for a period of approximately 10 years. During the course of that relationship the parties acquired the jointly-owned property at C Town. The parties have been separated for a period in excess of 12 months. Having regard to those matters, I am satisfied that in circumstances where the relationship is at an end, justice and equity requires that the parties have the opportunity to separate their financial interests. It is necessary for the Court to make orders for this to occur.
Section 90SM(4) matters
The applicant’s unchallenged evidence is that she was solely responsible for the parties’ financial support throughout the relationship. Further, she deposes that at the commencement of the relationship she held an unencumbered property at Suburb S together with savings. Upon the sale of that property, the applicant deposes that she contributed the entirety of the purchase price for the acquisition of the jointly held property at C Town. In addition she was solely responsible for payment of stamp duty and other expenses associated with that purchase.
In addition to those direct financial contributions made by the applicant towards the acquisition of the parties’ property, the applicant deposes that she funded the legal costs associated with the respondent’s application for residency and citizenship in Australia.
Further, the applicant’s evidence is that she purchased two motor vehicles for the respondent during the course of the relationship and that he has retained the motor vehicle 1 purchased by her upon the parties’ separation. In addition, upon separation, the respondent retained possession of the computer, photocopier and tools that were located at the C Town property. The applicant estimates the value of the vehicle and chattels retained by the respondent to be between $15,000 and $20,000.
Having regard to the unchallenged evidence of the applicant, I am satisfied that her direct financial contributions towards the acquisition, conservation and improvement of the parties’ interests throughout the relationship was overwhelming. Having regard to that evidence I am satisfied that there should be a significant adjustment in favour of the applicant to reflect those contributions.
Section 90SF(3) factors
The applicant is aged 82 years and is retired. She is reliant upon an aged pension as her only source of income.
The respondent is aged 75 years. He did not work during the parties’ relationship. There is no evidence before the Court as to his current financial circumstances.
Having regard to the parties’ ages and the fact that the applicant is in receipt of an income-tested pension, I am satisfied that there should be no further adjustment pursuant to s 90SF(3) of the Act.
CONCLUSION
The pool of assets available for division is extremely modest. The applicant seeks an order that will result in her retaining the C Town property, its contents, her savings and motor vehicle. The value of the property sought to be retained by her is $160,000. That property represents approximately 88 per cent of the parties’ identified interests.
Taking into account the overwhelming direct financial contributions made by the applicant towards the acquisition of property as well as towards the welfare of the family, particularly with respect to the respondent’s citizenship application, I am satisfied that it is appropriate that there be an adjustment in favour of the applicant in accordance with her application. An adjustment in those terms recognises the direct financial contributions made by the applicant. Orders in those terms will enable her to retain the C Town property. I am satisfied that orders in those terms are just and equitable.
The applicant seeks an order pursuant to s 106A of the Act to ensure that the transfer of property is able to be effected without further delay. She seeks an order that will enable a Registrar of the Court to sign relevant documents in order to effect the property transfer.
In circumstances where the respondent has elected not to participate in the proceedings and it is reasonable to anticipate that there will be difficulties in securing his cooperation with the execution of the necessary transfer documents, I am satisfied that such order is appropriate.
Accordingly, I will make orders as follows:-
1.That within 30 days the Respondent do all such things and sign all such documents as are required to transfer to the Applicant all his right, title and interest in the property at B Street C Town in the State of Victoria being the land more particularly described in Certificate of Title Volume Folio … and the Applicant indemnify the Respondent in respect of all and any liabilities associated with the property past, present and future.
2.In the event that the Respondent fails or refuses to comply with order 1 hereof, upon the Applicant’s solicitor filing an affidavit deposing as to the Respondent’s failure to comply with order 1, an Officer of the Court may execute any deed or instrument in the name of the Respondent pursuant to Section 106A of the Family Law Act 1975 to give effect to these Orders.
3.That unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Order:-
(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 he/she 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 herein;
(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 applicant and the respondent in any real or personal estate is hereby expressly severed.
4.That the Applicant cause a sealed copy of these orders to be served on the respondent as follows:-
(a)By registered post to the respondent care of:-
(i)Mr D at H Street, Suburb J;
(ii)Ms F at K Street, L Town;
(iii)Ms G at M Street, Suburb N;
together with a letter to each of the named recipients requesting that they urgently bring the sealed envelope and its contents to the attention of the Respondent.
(b)By email to the respondent at ...
5.The Application filed on behalf of the Applicant on 18 March 2020 be dismissed.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 16 February 2021
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