CAULDWELL and SUMNER

[2017] FCWA 55

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: BUNBURY

CITATION: CAULDWELL and SUMNER [2017] FCWA 55

CORAM: DUNCANSON J

HEARD: 1 MAY 2017

DELIVERED : 3 MAY 2017

FILE NO/S: PTW 2361 of 2015

BETWEEN: MS CAULDWELL

Applicant

AND

MR SUMNER
Respondent

Catchwords:

PROPERTY - undefended proceedings - where it is just and equitable to make a property settlement order - where value of parties property as known is small - wife to receive the entire known property of the parties

Legislation:

Family Law Act 1975 (Cth) s 75(2), s 79, s 106A

Category: Reportable

Representation:

Counsel:

Applicant: [Ms Cauldwell]

Respondent: No Appearance

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The wife, [Ms Cauldwell] seeks orders for property settlement. The husband, [Mr Sumner] has not participated in the proceedings. To date a number of interim property orders have been made. The wife now seeks to finalise her financial relationship with the husband.

BACKGROUND

2The wife was born in 1974. She is a [nurse]. The husband was born in 1973. He is [an engineer]. The parties began living together in 1994. They were married [in] 1997. The parties separated on 1 July 2013. They were divorced [in] 2017.

3The parties have three children aged 18, 14 and 11 years. The children live with the wife.

THE PROCEEDINGS

4The wife commenced these proceedings when she filed an initiating application on 22 December 2015. Substituted service was effected. The husband failed to comply with orders to file responding documents and has not otherwise participated in the proceedings.

5On 31 March 2016 an order was made restraining the husband from dealing with the rental income from a property owned by him at [Country Town A].

6On 29 June 2016 the wife was appointed sole trustee for the sale and rental of the Country Town A property and also of the parties’ jointly owned property at [Country Town B]. It was further ordered that upon the sale of the said properties the proceeds be applied in payment of the costs and commissions of sale, to discharge any mortgage secured against the properties and the balance thereafter be applied to reduce the mortgage secured on a property at [Urban Suburb C]. The Urban Suburb C property is jointly owned by the parties and is the property in which the wife lives with the children.

7The time in which the husband was to comply with previous orders for filing of documents was extended to 29 July 2016.

8On 9 January 2017 an order was made that until further order, the husband transfer to the wife his interest in the Urban Suburb C property and the wife refinance the loan into her sole name and indemnify the husband in relation to any liabilities arising pursuant to the mortgage.

9On that date the proceedings were listed for trial on 1 May 2017, on an undefended basis subject to any direction of the presiding Judge.

10The husband has not complied with orders for filing documents. He has not attended court or in any way participated in the proceedings.

11The trial proceeded on an undefended basis.

12The wife gave oral evidence and relied on affidavits filed by her. She was a truthful witness and her evidence was reliable.

THE ORDERS SOUGHT

13The orders sought by the wife that the Country Town A and Country Town B properties be sold and the proceeds applied to the reduction of the mortgage over the Urban Suburb C property have already been made. The wife sought a final order that the husband’s interest in the Urban Suburb C property be transferred to her and that she refinance the mortgage into her sole name. She also sought orders providing that each party retain the assets and liabilities in their respective names.

SHORT FINANCIAL HISTORY

14At the commencement of cohabitation the husband had an interest in a home in [Urban Suburn D] which he subsequently sold.

15During the course of the relationship the parties bought the Urban Suburb C property in 2004, a farm at the Country Town B property in 2009 and the Country Town A property in 2012.

16In about 1994 the husband commenced fly-in/fly-out work. The parties separated in mid-2013. In December 2014 the husband lost his job. The husband sold farming equipment and machinery and retained the proceeds.

17The husband ceased paying the mortgages and child support in early 2015. He left Australia in October 2015.

18The bank threatened to foreclose on the mortgages. The wife borrowed $17,000 from her father to prevent this happening in the short term. The wife moved into the Urban Suburb C property in January 2016. The wife borrowed funds from her father to meet the children’s expenses.

19The wife understands that the husband is currently living [overseas] with his partner and their baby. She further understands that he is working in the [construction] industry there.

20The wife entered discussions with the mortgagor bank and subsequently the orders referred to above were made.

21The Country Town A property continues to be rented out. The rent is accumulated by the real estate agent to meet the costs of sale. The wife has an offer for it which is dependent upon other events. She will sell it when she can. The wife has accepted an offer for the Country Town B property.

22The Urban Suburb C property has not yet been transferred to the wife’s sole name. The bank requires her to have been in employment for six months before it will refinance the loan into her sole name.

THE LAW

23These proceedings are governed by s 79 of the Act. To determine this matter I shall:

•identify the existing legal and equitable interests of the parties in their property;

•ascertain whether it is just and equitable to make a property settlement order and, if so;

•identify and assess the contributions of the parties;

•consider ss 79(4)(d), (e), (f) and (g) of the Act which include the relevant matters in s 75(2) and determine the adjustment (if any) which should be made;

•make such orders as are just and equitable.

THE EXISTING PROPERTY INTERESTS OF THE PARTIES

24I find the existing property interests of the parties as known to be set out as in the schedule below:

ASSETS	Ownership	Value
[Urban Suburb C]	J	$350,000
[Country Town A]	H	$390,000
[Country Town B]	J	$515,000
Household contents	J	Nominal
Bank accounts	W	Nominal
Bank accounts	H	Not known
Truck	H	E$5,000
[Toyota] motor vehicle	W	$8,000
Total Assets	$1,268,000
LIABILITIES
Mortgage – [Urban Suburb C]	J	$334,000
Mortgage – [Country Town A]	J	$478,000
Mortgage – [Country Town B]	J	$389,000
Loan from father	W	$37,780
Total Liabilities	$1,238,780
TOTAL NET ASSETS	$29,220
SUPERANNUATION
Superannuation	W	$3,000
Superannuation	H	Not known
Total Superannuation	$3,000
TOTAL NET ASSETS AND SUPERANNUATION	$32,220

IS IT JUST AND EQUITABLE TO MAKE A PROPERTY SETTLEMENT ORDER

25The parties separated in 2013 and are divorced.

26Following the irretrievable breakdown of the marriage and in circumstances where there is no longer common use of property, the wife seeks to alter their property interests.

27The husband has not participated in these proceedings. The wife is not in communication with the husband and he has not disclosed his financial circumstances to her.

28The wife seeks to finalise the parties’ financial relationship.

29In the circumstances I find it is just and equitable to make a property settlement order.

CONTRIBUTIONS

30At the commencement of cohabitation the husband had an interest in a property in Urban Suburb D. Both parties were in employment. After the birth of the parties’ children the wife was the primary carer for the children and the husband was the primary income earner. Both parties worked hard and the wife submits that the parties’ respective contributions to separation should be considered to be equal. Having considered the evidence I agree with that assessment.

31After the parties separated the husband sold some property and retained the proceeds. He retained rental income from the rental properties. He provided diminishing support to the wife and the children and subsequently has provided no support for them. He failed to make payment of the mortgages. He left Australia with his partner and young child and is now [living overseas].

32The wife has maintained the Urban Suburb C property. She negotiated with lenders to avoid foreclosure and to preserve the assets of the parties. She has been solely responsible for the care of the children and received no financial support from the husband.

33When I weigh the respective contributions of the parties throughout the whole of their relationship, I consider those of the wife are greater primarily by reason of her post-separation contributions.

SECTION 75(2) FACTORS

34The wife is 43 years of age. She is a nurse. The husband is also 43 years of age. The wife is reliably informed that he is employed in the construction industry overseas as an engineer.

35The wife is in receipt of a gross annual salary of $59,000. She also receives Centrelink benefits. The husband’s earnings are significant. The wife believes him to be earning approximately $19,000 per month, consistent with his earnings when previously employed overseas.

36The parties’ property to the extent that it is known is as set out above.

37The wife is the sole carer of the parties’ two younger children. She is responsible for their financial needs and receives no financial support from the husband. The husband has abandoned his family and financial obligations in Australia.

38The wife’s intention is to apply the proceeds of the Country Town A and Country Town B properties to the mortgage of the Urban Suburb C property to reduce the loan as much as possible, with a view to providing her with some financial security. The wife is not cohabiting with another person. The husband is understood to be cohabiting with another person with whom he has a child.

39The husband has been assessed to pay child support of $3,500 per month. As at the date of trial there are arrears of about $8,000. He is not currently paying child support.

40As to any fact or circumstance the court should take into account, the husband has not complied with his duty of disclosure. His financial circumstances are not known. In these circumstances it is open to the court to take a robust approach to the evidence.

ASSESSMENT OF SECTION 75(2) FACTORS

41The value of the property of the parties is small.

42In my assessment, having regard to the s 75(2) factors as a whole, I consider an adjustment in favour of the wife is warranted. The most significant factors warranting the adjustment are her care of the children, the disparity in the parties’ respective earning capacities and the husband’s non-disclosure.

CONCLUSION ON PROPERTY SETTLEMENT

43Given the limited value of the parties’ assets, I am of the view that it is not appropriate to deal with the division of the property by way of percentages, but rather, to tailor an order which I consider to be just and equitable in the circumstances of these parties.

44I consider the wife should receive all of the assets of the parties and assume responsibility for what will be the remaining liability, namely the mortgage over the Urban Suburb C property.

JUST AND EQUITABLE

45The total value of the property of the parties as known is $32,220. The husband made no claim for property settlement and has taken no responsibility for payment of joint liabilities since before leaving Australia.

46The wife will own the Urban Suburb C property. She hopes to be able to reduce the loan over that property upon the sale of the Country Town A and Country Town B properties. The wife will refinance the loan over the Urban Suburb C property when she is able to do so and her ownership of the home in which she lives with the children will provide her with some security in the future. The wife will receive what few known assets the parties have. In circumstances where the husband has a significant earning capacity and pays no child support, such an outcome is just and equitable.

THE ORDERS

1The Applicant, [MS CAULDWELL] have leave to proceed on an undefended basis.

2The Respondent, [MR SUMNER], shall:

(a) transfer all his right title and interest in the property at [Urban Suburb C] in the State of Western Australia to the Applicant; and simultaneously

(b) the Applicant shall refinance into her sole name Mortgage [Kxxxxxx] to the Bank of Western Australia and indemnify and keep indemnified the Respondent in relation to any liabilities arising pursuant to the mortgage.

3In default of the Respondent executing all such documents as are necessary to give effect to these orders for the transfer of [Urban Suburb C] property within seven days of the document being provided to him, the Principal Registrar or a Registrar of the Family Court of Western Australia at Perth be appointed pursuant to Section 106A of the Family Law Act 1975 (“the Act”) to execute the Transfer of Land and all deeds and documents in the name of the Respondent as may be required to give effect to the sale and transfer of the property.

4The Respondent transfer to the Applicant his interest in the truck, Registration Number [Bxxxx].

5Pursuant to s 106A of the Act, the Principal Registrar or Registrar of the Family Court is hereby appointed to execute such documents as are necessary to give effect to the transfer of the truck to the Applicant.

6Any right title or interest the Respondent may have in the following vest in the Applicant absolutely:

(a) any bank account in the Applicant’s name;

(b) the Applicant’s [Toyota] motor vehicle;

(c) the Applicant’s superannuation interests;

(d) the Applicant’s household possessions; and

(e) any chattels left upon or at the [Urban Suburb C] property and the properties known as [Country Town A] and [Country Town B].

7Any right title or interest the Applicant may have in the following vest in the Respondent absolutely:

(a) any bank account in the Respondent’s name; and

(b) the Respondent’s superannuation interests.

8The parties each be responsible for and indemnify each other in relation to any liabilities in their respective names.

9The parties have liberty to apply with respect to the implementation of these orders.

10The proceedings otherwise be dismissed.

11All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

I certify that the preceding [46] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate