CAUSEY & CAUSEY
[2018] FamCAFC 81
•19 April 2018
FAMILY COURT OF AUSTRALIA
| CAUSEY & CAUSEY | [2018] FamCAFC 81 |
| FAMILY LAW – APPEAL – PROPERTY – Where the husband did not participate in the Federal Circuit Court proceedings – Where the wife sought 80 per cent of the matrimonial pool – Where the primary judge determined a split of 70 per cent to the wife and 30 per cent to the husband – Where the primary judge ordered the wife pay a cash sum to the husband – Where the primary judge did not take into consideration the wife’s non-financial contributions – Where the appeal was upheld. FAMILY LAW – APPEAL – RE-EXERCISE – Where an expeditious end to the financial relationship of the parties was preferred by the wife – Where the husband retained his superannuation – Where the wife retained the former matrimonial home and her superannuation – Where no payment to the husband was required by the wife. |
| Family Law Act 1975 (Cth) ss 75(2), 79, 81 |
| Weir and Weir (1993) FLC 92-338; [1992] FamCA 69 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21 Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10 |
| APPELLANT: | Ms Causey |
| RESPONDENT: | Mr Causey |
| FILE NUMBER: | BRC | 2268 | of | 2017 |
| APPEAL NUMBER: | NOA | 73 | of | 2017 |
| DATE DELIVERED: | 19 April 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 19 April 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | Orders pronounced on 27 November 2017 |
| LOWER COURT MNC: | [2017] FCCA 3192 |
REPRESENTATION
| FOR THE APPELLANT: | In person |
| FOR THE RESPONDENT: | No appearance |
Orders
The appeal against orders made by Judge L. Turner made 27 November 2017 be allowed.
Paragraph (2) of the orders made by her Honour on that date be set aside.
Each party bear their own costs of and incidental to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Causey & Causey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 73 of 2017
File Number: BRC 2268 of 2017
| Ms Causey |
Appellant
And
| Mr Causey |
Respondent
EX TEMPORE[1]
REASONS FOR JUDGMENT
[1]As indicated would occur during the oral delivery of these reasons, quotations, citations and the like have been added to the settled reasons.
On 27 November 2017 Judge L. Turner made final orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) after an undefended hearing. The orders provided for the wife to retain the former matrimonial home and each party to retain their personal possessions, and for a payment from the wife to the husband of $21,613.00. The wife appeals those orders.
On 16 April 2018, the Deputy Chief Justice, acting in the absence of the Chief Justice made an order, pursuant to s 94AAA(3) of the Act that it is appropriate for the jurisdiction of the Family Court in relation to this appeal to be exercised by a single judge and it was heard by me today on that basis.
The wife represents herself and prepared her own material. The husband does not appear and did not appear before her Honour. Nor did the husband file any material either below, or on this appeal. The documentation to which I have earlier made reference on the record, indicates that the husband has been served with all of the relevant material. Out of an abundance of caution, I required the husband’s name to be called three times at the commencement of this appeal and no appearance was recorded.
Her Honour’s findings and orders need to be seen within that important context.
The Grounds Of Appeal
The grounds of appeal are, with all respect to the self-represented wife, difficult to interpret as recognisable appealable error. They do, however encapsulate neatly the central complaints lying at the heart of the wife’s challenge to her Honour’s orders. They should be quoted:
1. The decision is unjust as [Mr Causey] has not filed any response/paperwork for any court proceedings, nor participate in mediation
2. I have a son with special needs - ADHD, ASD, anxiety/depression, Intellectual impairment which was not taken into consideration as I am unable to return to full time employment due to his needs.
3. The court failed to follow through with court orders made on 4th September 2017 – where [Mr Causey] was ordered to appear in the Federal Circuit court on 8th November 2017
4. As directed by registrar Ann Sturgess to modify a Domestic violence order to allow the Respondent to attend mediation at my cost when the order already allowed for court dealings. The presiding Magistrate in … Magistrates court questioned the validity of the modification being made to the order when court appearance was already covered.
5. [Mr Causey] left the marriage and in doing so, left all financial obligations to the house, maintenance of the house and the care and welling being of [child F] the youngest who has numerous disabilities, and in doing so left several major bills, - telephone - mobile, repair of motor to a vehicle made by [Mr Causey] but paid by myself. Under what jurisdiction of law should he be compensated? Under my conversations with [Mr Causey] he believed that he was not legally obligated to supply financial or welling being of [child F] of any up keep of the house or legally obligated to the house and was no longer responsible for any debts incurred during the marriage.
6. The court failed to comply with its own code of conduct in relation to the failure to supply any documentation for any court appearances or mediation as per the family law act of 1975 by [Mr Causey] under the act of fail to disclosure.
(As per original)
Doing the best I can, the grounds can, I think, be formulated as follows. First, it is contended that in the particular circumstances of this case, the result, particularly the requirement to pay a cash sum, was manifestly unjust.
Secondly, as the wife’s material and discussion with her this morning confirms, a second ground contends in effect that on the unchallenged evidence before the primary judge, it was not open to conclude that the contributions of the parties were equal to the date of separation and that her Honour failed to have regard to material considerations, namely the wife’s contributions, particularly those made in the approximately six years between separation and trial, and in particular, her Honour failed to take account of the indirect contributions to the presentation and improvement of the former matrimonial home made by the wife.
The History Of The Parties And The Proceedings
The parties were married in 1989 and separated in 2011. During the 22 year marriage, the parties had four children, the youngest of whom still lives with the wife, and has a number of special needs arising from autism spectrum disorder, attention deficit hyperactivity disorder and an intellectual impairment.
At the outset of the relationship, neither party had any assets of any significance.
During the marriage the parties purchased a 35 per cent share in a house in Brisbane. This was the matrimonial home from approximately 1994 until separation. The wife continues to reside in this home with the parties’ youngest child.
The wife filed an Initiating Application with respect to property on 7 March 2017, in which she sought final orders:
1.That there be an accounting of the property, liabilities and financial resources of the Applicant and the Respondent, and a global division of the non-superannuation and superannuation pools of 80% to the Applicant including the Respondent’s interest in the property at [Brisbane] in the State of Queensland.
2.That the Applicant be at liberty to amend this application upon receiving full disclosure from the Respondent identifying each pool.
3.That the Respondent pays the Applicant’s taxed costs of and incidental to this Application.
The husband filed a Notice of Address for Service on 11 April 2017. Also on 11 April 2017 the primary judge made procedural orders outlining the filing dates for the husband’s response and supporting affidavit material in relation to the wife’s application. Orders were also made to facilitate a conciliation conference for 12 June 2017.
The conciliation conference took place and was attended by both parties. It was adjourned to 21 July 2017, on which occasion the husband did not appear.
The matter returned before the primary judge on 4 September 2017, and the husband, again, failed to appear. On that day, the primary judge made orders in the following terms:
1. That this matter be adjourned for Mention to 9:30am on 8 November 2017 in the Federal Circuit Court of Australia at Brisbane.
2.That the husband must attend in person on 8 November 2017.
3.That in the event the husband fails to attend on 8 November 2017 consideration will be given to proceeding by way of undefended hearing.
(Emphasis in original)
On 8 November 2017 the husband failed to appear and the primary judge determined to make final orders on an undefended basis.
On 27 November 2017 the primary judge made final property orders and published reasons for those orders.
The Evidence Before The Primary Judge
The wife filed two affidavits and a financial statement; the husband filed no evidence or financial statement. In failing to do so he was, of course, in breach of orders made by the Court and obligations cast upon him by the Act and the Family Law Rules 2004 (Cth) (“the Rules”).
In the wife’s affidavit filed 7 March 2017 she outlines the history of the relationship, including both financial and non-financial contributions of each of the parties.
On the wife’s evidence, each party contributed financially throughout the relationship through employment, and each party had periods of unemployment; the wife when she stayed at home with the eldest children, and the husband when he “lost his job a few times”.[2]
[2] Affidavit of the wife filed 7 March 2017 at paragraphs 22 – 23.
The wife deposes to a conclusion, namely that her contribution to the welfare of the family as being greater than that of the husband. She goes on, however to specify her assertions in that regard saying that with respect to the maintenance of the matrimonial home the wife deposes to being responsible for 75 per cent of the housework, and attending to the maintenance of the yard and garden.[3] The wife also deposes to parenting the parties’ four children with little assistance from the husband.
[3] Affidavit of the wife filed 7 March 2017 at paragraph 30.
Post-separation, the wife deposes to making a greater financial contribution than that of the husband. Significantly, as it seems to me, she drew down $10,000.00 of her superannuation to meet outstanding debts in respect of the matrimonial home – debts which she asserts the husband failed to meet or share.[4] She also maintained the husband to the extent of “approximately $5000.00 to assist him with living costs from December 2011 to August 2012”.[5] The wife also performed renovations on the matrimonial home which she states cost approximately $65,000.00.[6]
[4] Affidavit of the wife filed 7 March 2017 at paragraphs 53 – 54.
[5] Affidavit of the wife filed 7 March 2017 at paragraphs 54 – 56.
[6] Affidavit of the wife filed 7 March 2017 at paragraph 57(g).
Importantly, as it seems to me, in the approximately six years between separation and trial, the wife assumed almost exclusive care of the parties’ disabled child at a time when his special needs merged with the needs of adolescence. The other three children of the parties are now adults.
The youngest child continues to live with the wife in the former matrimonial home. In prospect, he will continue to do so for the foreseeable future. The wife states that, due to his care needs, she is unable to work full time. Again, that situation will be ongoing into the foreseeable future.[7]
[7] Affidavit of the wife filed 7 March 2017 at paragraphs 62 – 65.
The Legal and Equitable Interests in Property.
The wife’s evidence sets out her assets and liabilities and what she knows of those of the husband.[8] It has always been her case that she knows nothing of the assets or income position of the husband. She has suggested that she has information that he has, for example, “secret bank accounts”. It will be appreciated immediately that the husband, by failing to file, at the least, a financial statement, has not complied with even the most basic elements of his duty of disclosure. The Court, as a consequence, “should not be unduly cautious about making findings” in favour of the wife.[9]
[8] Affidavit of the wife filed 7 March 2017 at paragraph 24.
[9] Weir and Weir (1993) FLC 92-338 at 79,593.
The amount of the husband’s superannuation interest appears through the efforts of the wife to obtain it. It too was not disclosed by the husband.
The interests in property and superannuation as her Honour found them to be totalled $266,159.00 which her Honour found consisted of:[10]
[10]At [22]. As earlier noted, the parties’ interest in the former matrimonial home consisted of a “35% interest”.
Former matrimonial home $122,500
[Superannuation Fund A] (wife) $86,698
[Superannuation Fund B] (husband) $58,236
Total Assets $267,434
Less Liabilities
Debt relating to former matrimonial home $1274
TOTAL MATRIMONIAL ASSET POOL $266,160
It will be apparent that the husband retaining his superannuation interests with no further adjustment in his favour represents an overall entitlement expressed in percentage terms of approximately 22 per cent.
The Primary Judge’s Reasons
The primary judge made findings regarding the property pool available for distribution to which I have just referred, and determined to not include bank accounts of the parties, motor vehicles of the parties, or credit card debts or other loans of the parties; the net effect of which, if, as her Honour ordered, they were retained by the respect of the parties, was nominal.[11]
[11]Although not expressed in these terms the decision to make no orders in respect of that property, save that each party retain that which he or she owns and is in his or her possession might be seen to be an application of s 79(2) of the Act, i.e. a determination that it was not just and equitable to alter the interests in that property. See Stanford v Stanford (2012) 247 CLR 108.
When considering the contributions of the parties her Honour found the following:
24.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.
25.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.
26.As to the contributions post separation, I find the evidence supports an adjustment in favour of the wife.
…
28.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.
The Full Court has cautioned against the notion of “adjustments” by reference to specified periods of the parties’ relationship. Further the whole notion of “adjustments” expressed in the manner in which her Honour expressed it is problematic. The use of the term in that manner suggests a starting point, at least implicitly, of equality.[12] The task is to “holistically” assess all contributions of all types across the whole of the parties’ relationship from cohabitation to trial. The Full Court in Dickons & Dickons said:[13]
24.There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
[12] See, eg, Mallet v Mallet (1984) 156 CLR 605.
[13] [2012] FamCAFC 154.
Her Honour ultimately assessed contributions in the proportion 60 per cent to the wife and 40 per cent to the husband. In dollar terms, the disparity in their respective contributions was assessed as about $53,000. Her Honour found that contributions to the date of separation were equal and that “an adjustment of 10% is warranted in favour of the wife in respect to the post separation contributions made by the wife” (at [28]). That “adjustment” equates to about $26,600.
Her Honour then addressed s 79(4)(e) (described as “future needs”) and found, at [29] – [32]:
29.The court has no information as to the husband’s current financial situation or his future needs.
30.The wife currently is earning an income and receives carer’s allowance for the youngest child, [child F], who suffers from medical issues which require the child to attend upon a psychologist and at times where the child is placed in respite.
31.The husband pays a small amount of child support and currently is in arrears.
32.I find that, given the wife has the ongoing primary care of [child F] (aged 16) and given [child F’s] medical issues that an adjustment is to be made in favour of the wife of 10%.
The overall assessment was then, that the wife should receive 70 per cent of the parties’ interests in property and superannuation and the husband 30 per cent. That reflects in the husband receiving his superannuation interest; the wife retaining the interest in the house with its (small) debt; and needing to raise and pay $21,613 in cash to the husband.
The Trial Judge’s Assessment and Orders
It bears reiteration that the husband did not provide even the most basic of information required by the Act and Rules. There remains the possibility that he retains property that has not been disclosed and which he retains independent of the wife.
Secondly, the uncontested evidence – which could not in any way be described as inherently improbable or not otherwise capable of being accepted was that:
·Both parties had contributed income to the family;
·The wife contributed in two roles as a homemaker and parent and as an income earner;
·The contributions by the wife as a homemaker and parent were, on the only evidence available to her Honour, significantly greater than those of the husband; and
·The contributions made by the wife were made in difficult circumstances; the wife made allegations of family violence and there were four children, one with significant disabilities.
I reiterate that the wife deposes to parenting the parties’ four children with little assistance from the husband.
Leaving aside the issue of contributions being “adjusted” from some unspecified position (which carries with it the implication that they are being adjusted from a starting point of equality or perhaps some other starting point), I respectfully consider that her Honour’s finding at [25] that “there is no evidence to support an adjustment in favour of either party, as the contributions of the parties were equal”, with respect to the period up to separation, was not reasonably open on the evidence before her. There was in my respectful view, ample uncontested evidence of an imbalance in favour of the wife.
The period between separation and trial was approximately six years and as a consequence bore significance in assessing contributions over the whole of the 28 year period between cohabitation and the hearing. On any view of the contributions of the parties, based on the unchallenged evidence of the wife not otherwise impugned by her Honour, the contributions of the wife were significantly greater than those of the husband:
·The wife made significant capital contributions to the home (notably the sole realisable asset the subject of the proceedings) while the husband made none;
·The wife made significant indirect contributions to the preservation of the home while the husband made none;
·The husband provided minimal child support and owed arrears of the same. The wife was left to support herself and the parties’ child with special needs from her own resources;
·The wife contributed to the day-to-day care of the parties’ child with special needs while the husband’s day to day involvement in his care was minimal at best; and
·The wife accessed superannuation funds that would otherwise be available to her upon retirement to not only improve the parties’ only realisable asset;
·The wife provided financial assistance to the husband to establish himself post-separation; and
·The wife continued in two roles; one as a modest income-earner, the other as, effectively, a full-time carer for the disabled child.
Her Honour assessed that evidence as requiring an adjustment of 10 per cent – that is about $26,600. In my respectful opinion that assessment markedly undervalued the wife’s contributions in the post-separation period.
Looking at the totality of the contributions across the entire period of approximately 28 years from the date of marriage to the date of trial, the wife’s contributions of all types were very significantly greater than those of the husband and all the more so by reference to the dollar value of the same in this very small asset and superannuation pool. The disparity of 20 per cent as assessed by her Honour equates to approximately $53,000. That markedly undervalues the disparity in contributions in this marriage.
I conclude that her Honour erred in finding that there was no evidence to support a finding other than equality of contributions to the date of separation. That erroneous finding contributed to an assessment of contributions that was manifestly unjust.
I consider that appealable error is established.
The “adjustment” for the factors taken into account pursuant to s 75(2) by reason of s 79(4)(e) being assessed at 10 per cent, has a dollar value of about $26,600. It is, of course, important for an assessment of those factors to have regard to the true dollar value of any adjustment for them.[14]
[14] Clauson and Clauson (1995) FLC 92-595.
That adjustment and amount fails, in my view, to take account of the cost and arduous nature of the ongoing care of the parties’ child which will continue long into the future. That care impedes the wife from obtaining full-time work. That in turn impedes the wife from earning her way out of the financial difficulties inherent in the breakdown of this relationship.
I consider that her Honour erred by failing to attribute sufficient weight to the “s 75(2) factors” which, on the only evidence before her, significantly favoured the wife. The error might be seen to be one in respect of the attribution of weight, but here there was no “palpable advantage” enjoyed by the primary judge; the husband did not appear; there was no cross-examination; the assessment was based on the same written evidence to which I can have regard.[15]
[15]Cf Devries v Australian National Railways Commission (1993) 177 CLR 472 and Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550.
Finally, in arriving at a conclusion as to the appropriate order that justice and equity required, I am unable to see how her Honour gave any consideration to the effect of the proposed order. On the evidence before her Honour it is by no means clear how the wife could or would raise the requisite amount (save perhaps by accessing her superannuation).
Conclusion
I have concluded then that, with respect, her Honour has erred.
Obviously in a pool of this size and in circumstances where no evidence is presented to the Court in respect of circumstances that have changed between the date of trial and the date of the hearing of this appeal, the wife seeks that I re-exercise the relevant discretion.
The difficulties frequently inherent in doing so by an appeal court are obviated by the factors to which I have just made reference. It will be clear from what I have already said what I regard as the relevant contributions made by the parties across the entirety of the relationship. I have concluded that her Honour erred in failing to have sufficient regard to them. I consider that the contributions across the whole of that period made by the wife, significantly outweigh those made by the husband.
Equally, I have sought to identify the relevant matters set out in s 75(2) of the Act which become relevant by reason of s 79(4)(e) of the Act. Again it will be clear that I consider those factors significantly favour the wife and that the amount attributed to those factors by the primary judge undervalued them.
As I have already noted, if the husband retains his superannuation interest, he receives about 22 per cent of the net property and superannuation interests. Such a result, in the particular circumstances of this case and considering the blatant failure to comply with Court orders and to comply with even the most basic of the husband’s obligations of disclosure, might be seen as generous to him. I am conscious, as the wife effectively conceded before me this morning, that she is unlikely to ever know the husband’s true financial position. That too suggests an entitlement to her significantly greater than that determined by her Honour.
All of those things said, the wife acknowledges in the context earlier described, cooperation from the husband is likely to be non-existent, indeed she anticipates the necessity to invoke the order made by her Honour to have a person other than the husband sign the relevant documents so as to transfer the property to her. She effectively concedes that an order requiring the husband to facilitate a superannuation splitting order, would require her, through the agency of enforcement orders, to undertake all such necessary steps, including the provision of procedural fairness to the trustee, that would be required in order to effect same.
I am acutely conscious of the mandate in s 81 of the Act. This is a case as the wife herself acknowledges where the primary objective should be to bring to an end the financial relationship between these parties in the most expeditious way possible.
In that regard, the wife seeks to tell me about issues that attend the continuing relationship between them. No formal application to adduce that evidence is before me and I pay no regard to it accordingly. But, it is abundantly plain on the material before her Honour, that there are considerable difficulties which would attend the future relationship of the parties and a fundamental aspect of orders that are appropriate to effect justice and equity between these parties is to bring their financial relationship to an end in the most expeditious way possible.
Taking all of those matters into account I consider that the appropriate order to be made is an order that would see paragraph (2) of the orders made by her Honour on 27 November 2017 being set aside. I would otherwise indicate that the balance of those orders should be carried into full force and effect.
The overall effect of those orders will be to see the former matrimonial home transferred to the wife, for the wife and the husband to each retain their respective superannuation interests and all of the property they each currently own or possess and the exchange of the property would not require the payment of any money by the wife to the husband.
I consider that result to be just and equitable. It represents about 78 per cent to the wife and 22 per cent to the husband. I reiterate that in percentage and indeed perhaps in dollar terms such a result might be seen to be generous to the husband in light of the particular circumstances in this case. However, taking all of those circumstances into account, I am persuaded that the order that I have indicated is appropriate in all of the circumstances.
Costs
I reiterate that the wife appears before me this morning self-represented. She has prepared all of her own material. The husband has not appeared. She does not put any evidence before me of any legal costs incurred by her. I will formally order that each of the parties to this appeal bear their own costs of and incidental to it.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 19 April 2018.
Associate:
Date: 27 April 2018
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