CAUSEY & CAUSEY

[2017] FCCA 3192

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAUSEY & CAUSEY [2017] FCCA 3192

Catchwords:
FAMILY LAW – Property – undefended – marriage of 22 years – Held – wife to receive 70% small asset pool.

Legislation:

Family Law Act 1975, ss.75, 78, 79

Stanford & Stanford (2012) 293 ALR 70

Hickey & Hickey & Attorney General of the Commonwealth (Intervener) (2003) FLC 93–143

Applicant: MS CAUSEY

Respondent: MR CAUSEY

File Number: BRC 2268 of 2017

Judgment of: Judge L. Turner

Hearing date: 8 November 2017

Date of Last Submission: 8 November 2017

Delivered at: Brisbane

Orders pronounced on: 27 November 2017

Reasons provided on: 19 December 2017

REPRESENTATION

The Applicant appeared in person

No appearance by the Respondent

FINAL PROPERTY ORDERS

1. That within sixty (60) days the parties do all such things and sign all such documents as are necessary to ensure that the 35% share in the rental purchase plan for the property situated at Property A in the State of Queensland more particularly described as County of [omitted] contained in Certificate of Title Volume [omitted] Property A previously held in the names of the husband and wife as joint tenants, is transferred at the wife’s expense to the wife’s name solely with the wife to do all such things and sign all such documents as are necessary to take over responsibility for any debt owing to the Queensland Housing Commission in respect of the debt of the Property A property.

2. That contemporaneously with the transfer of the Property A property to the wife in accordance with Order 1, the wife pay to the husband the sum of $21,613.00.

3. That otherwise the parties retain for their exclusive use all property in their possession including their superannuation, bank accounts and household items.

4. That the parties indemnify and keep indemnified the other party against any debts in their name.

5. That each of the parties shall do all acts and sign all necessary documentation to give effect to the terms of this Order and in the event that either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to Section 106A of the Family Law Act1975 to execute such documents on behalf of such party.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 2268 of 2017

MS CAUSEY

Applicant

And

MR CAUSEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. The wife after a marriage of some 22 years is seeking a property division.

2. Her efforts to obtain a division have been hindered by the husband’s failure to participate in these proceedings. 

3. The wife is now seeking that the matter proceed by way of an undefended hearing. 

Evidence

1. In considering the issue of a property division regard has been had to:-

   a)The material as marked on the court file.

   b)The written submissions of the wife.

   c)Part VIII Family Law Act 1975.

   d)Relevant authorities. 

2. The wife is self-represented.

3. Findings of fact are made on the balance of probabilities, having regard to the evidence and in what follows statements of fact constitute findings of fact.

The relevant facts

1. Before considering the law and its application to the issues, regard must be had to the relevant facts:-

   a)The wife is aged 48 and is a [occupation omitted]. 

   b)The husband is aged 47 and is a [occupation omitted]. 

   c)In 1989 the parties commenced cohabitation. 

   d)In 1989 the parties married. 

   e)At the commencement of the relationship the wife had some assets, but the debts associated with the assets equalled the value of the assets. 

   f)At the commencement of the relationship the husband had no assets or debts. 

   g)At the commencement of the relationship the husband was unemployed and the wife was a fulltime [occupation omitted]. 

   h)In 1989 Mr A was born. 

   i)In 1990 Ms B was born. 

   j)In 1992 Mr C was born.

   k)For the first six years or so of marriage the wife was the home-maker, and the husband held down various jobs and was the breadwinner. 

   l)In 1994 the parties jointly purchased (subject to a mortgage) a 35% share in a house property at Property A (Property A property).

   m)In 1995 the wife returned to work and until 2000 undertook shift work.

   n)In 2000 the wife commenced working fulltime. 

   o)In 2001 [X] was born. 

   p)From 2002 to 2004 the wife worked part-time. 

   q)Since 2004 the wife has continued to work. 

   r)In 2011 the parties separated. 

   s)In March 2017 the wife commenced property proceedings, seeking a division of 80% of the matrimonial property pool.

   t)In April 2017 the husband was served with the court documents.

   u)In April 2017 the husband filed a Notice of Address for Service as a self-represented litigant. 

   v)In April 2017 at the first mention date both parties attended in person and orders were made for the parties to attend a conciliation conference before a registrar. 

   w)Directions were also made for the husband to file and serve response documents. 

   x)Such documentation was never filed.

   y)At the conciliation conference on 12 June 2017 both parties attended in person and the registrar set the matter down for a further conciliation conference on 21 July 2017 and for mention on 4 September 2017. 

   z)At the second conciliation conference on 21 July 2017 the husband failed to attend.

   aa)On 4 September 2017 at the mention date the husband failed to attend and the matter was set down for mention on 8 November 2017 with a direction that the husband attend and if the husband failed to attend then the matter proceed by way of an undefended hearing.

   bb)On 8 November 2017 the husband failed to attend.

Proceeding by way of undefended hearing 

1. Before turning to the issue of property division, consideration must be given as to whether this matter can proceed by way of an undefended hearing.

2. I find having considered the evidence that it’s appropriate, to proceed with this matter on an undefended basis.

3. I make that finding based on the following:-

   a)The parties have been separated for over five years when the wife commenced property proceedings. 

   b)The husband was served with the property proceedings and was in court on the first mention date having filed and served a Notice of Address for Service. 

   c)The husband attended the first conciliation conference. 

   d)Although being aware of the court’s direction for his filing of the material and dates for the second conciliation conference and the next mention date, the husband failed to abide with the directions or attend other court date. 

   e)Although a copy of the 4 September 2017 order was sent to the husband via the address provided in the husband’s notice of address, the husband, knowing the matter would proceed by way of an undefended hearing, failed to attend court in November 2017.

The law

1. I now turn to the law. 

2. In considering matrimonial property matters, consideration must be had to Part VIII Family Law Act 1975 and in particular sections 75, 78 and 79.

3. A clear framework exists in determining a property division. 

4. The first question that must be asked as articulated by the High Court in Stanford & Stanford (2012) 293 ALR 70 at [79] and [80] is whether “it is just and equitable to make a property division order by identifying, according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property”. 

5. If answered in the affirmative, then the matter can proceed to a property division applying the various principles. 

6. Consideration must also be given as to whether a global or asset by asset approach is to be adopted and whether a one or more pool approach is to be taken. 

7. Then the four-step process is to be applied in accordance with the Full Court decision of Hickey & Hickey & Attorney General of the Commonwealth (Intervener) (2003) FLC 93–143 at [39] which can be summarised as follows:-

   a)Identify and value as at the date of the hearing the parties’ property, liabilities and financial resources. 

   b)Identify and assess the parties’ contributions pursuant to section 79.

   c)Identify and assess the parties’ ongoing needs, taking into account the relevant factors under section 79 and section 75(2).

   d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case. 

Question in Stanford

1. The first question then is the question in Stanford. 

2. I find this is a matter where it is just and equitable, to determinate property division based on the following:- 

   a)The parties were married for 22 years. 

   b)The parties have been separated since 2011. 

   c)There remains property jointly owned by the properties. 

   d)There is a property pool capable of division. 

3. As the question posed by Stanford is answered in the affirmative, I will now determine the property division.

4. I now turn to the four step process.

Four step process

Property pool 

1. I find having considered the evidence before the court that the matrimonial property pool available for distribution consists of the sum of $266,159 that being calculated as follows:-

ASSET	$ VALUE
35% Property A property	122,500
Super Fund 1 (wife)	86,698
Super Fund 2 (husband)	58,236
Total Assets	$267,434
Less Liabilities
Debt to Department Housing & Works	1274
TOTAL MATRIMONIAL ASSET POOL	$266,160

1. In considering the make-up of the matrimonial property pool the following has not been taken into account:-

   a)The bank accounts of the parties, as there is no evidence before the court as to what was in the bank accounts as at the date of separation.

   b)The motor vehicle of the parties, as there is no evidence before the court as to whether the vehicles were owned by the parties as at the date of separation or acquired post separation.

   c)The credit card debts or other loans of the parties, as there is no evidence before the court as to what other debts existed as at the date of separation. 

Contributions 

1. As there were no contributions of any existence as at the time of the commencement of the relationship, then no adjustment is to be made in favour of either party in respect to initial contributions. 

2. As to contributions made during the marriage, there is no evidence to support an adjustment in favour of either party, as the contributions of the parties were equal. 

3. As to the contributions post separation, I find the evidence supports an adjustment in favour of the wife.

4. I base this finding on the following:-

   a)At the date of separation the parties had fallen behind significantly in respect to the rates, water bills and other bills and the wife was required to draw down nearly $10,000 from her superannuation to meet these debts. 

   b)The wife since separation has preserved the Property A property and maintained and improved it. 

   c)The wife provided financial assistance to the husband to establish himself after separation. 

   d)The wife has primarily been responsible for the care of the children. 

5. I find that an adjustment of 10% is warranted in favour of the wife in respect to the post separation contributions made by the wife.

Future needs   

1. The court has no information as to the husband’s current financial situation or his future needs. 

2. The wife currently is earning an income and receives carer’s allowance for the youngest child, [X], who suffers from medical issues which require the child to attend upon a psychologist and at times where the child is placed in respite. 

3. The husband pays a small amount of child support and currently is in arrears. 

4. I find that, given the wife has the ongoing primary care of [X] (aged 16) and given [X]’s medical issues, that an adjustment is to be made in favour of the wife of 10%. 

Just and equitable

1. At the conclusion of the second and third steps, the wife is to receive 70% of the matrimonial pool. 

2. I find this is just and equitable division, given the small size of the pool. 

3. This will result in the parties receiving the following by way of property division:-

   a)The wife is to receive assets totalling $186,311 ($266,160 x 70% = $186,312 ) consisting of the following:-

35% Property A property	122,500
Super Fund 1 (wife)	86,698
Total Assets	$209,198
Less Liabilities
Debt to Department Housing & Works	1,274
Payment to the husband	21,613
Total Liabilities	$22,887
SHARE TO WIFE	$186,311

b)The husband is to receive assets totalling $79,849 ($266,160 x 30% = $79,849) consisting of the following:-

Super Fund 2 (husband)	58,236
Payment by the wife	21,613
SHARE TO HUSBAND	$79,849

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge L. Turner

Date:  19 December 2017