CHESTER & MCKENNA

[2017] FCCA 2481

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHESTER & MCKENNA [2017] FCCA 2481

Catchwords:
FAMILY LAW – Parenting and property orders sought – undefended – extensive history of family violence – arson of former matrimonial home – father incarcerated – sole parental responsibility – transfer of the former matrimonial home to the Applicant.

Legislation:

Family Law Act 1975 (Cth), ss.61DA, 106A

Family Law Rules 2004 (Cth), r.7.10

Applicant: MS CHESTER

Respondent: MR MCKENNA

File Number: MLC 8012 of 2017

Judgment of: Judge Hartnett

Hearing date: 2 October 2017

Orders made: 2 October 2017

Judgment Delivered at: Melbourne

Judgment Delivered on: 13 October 2017

REPRESENTATION

Counsel for the Applicant: Ms Swann

Solicitors for the Applicant: Lander and Rogers

The Respondent: No Appearance

ORDERS MADE 2 OCTOBER 2017

Parenting

1. The mother have sole parental responsibility for the children of the relationship, being:-

   (a)[X] born (omitted); and

   (b)[Y] born (omitted) (together ‘the children’).

2. The children live with the mother.

3. The children spend time or communicate with the father as agreed in writing between the parties and that for the purposes of any such time, this must be supervised at a professional supervision centre by a professional supervisor to be agreed between the parties.

Property

1. Within 14 days of the date of these Orders, the Respondent do all acts and sign all documents required to transfer to the Applicant, at her expense, all of his right, title and interest in the property situate at and known as Property A in the State of Victoria being Certificate of Title Volume (omitted) (‘the Real Property’).

2. The Applicant retain for her sole use and benefit, to the exclusion of the Respondent:-

   (a)(omitted) ex-gratia payment, being $(omitted) in her name; and

   (b)the benefit of the (bank omitted) Partial Debt Waiver of $(omitted).

3. Unless specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders:-

   (a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders with the motor vehicles and personal property previously situated at the Real Property being deemed to be in the possession of the Applicant;

   (b)monies standing to the credit of the parties in any bank account are to be retained by the party in whose name the account appears save that any monies standing to the credit of the parties in any joint bank account is to be the property of the Applicant;

   (c)each party hereby forgoes any claim they may have to any superannuation that is belonging to or earned by the other;

   (d)all insurance policies are to become the sole property of the owner named therein;

   (e)each party be solely liable for and indemnity 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. Pursuant to s121 of the Family Law Act 1975 (Cth) (‘the Act’), the Applicant may publish the reasons for judgment to the Victorian Police Services and Corrections Victoria when taking steps to protect herself and the children before or upon the Respondent's release from prison.

5. A Registrar of the Federal Circuit Court is hereby appointed pursuant to s106A of the Act to execute any such documents on behalf of the Respondent necessary to give effect to these Orders, in the event that he fails to comply with his obligations pursuant to these Orders within 7 days of any request to do so, including but not limited to all documents required to effect the transfer of the Real Property to the Applicant.

6. Otherwise all extant applications are dismissed and the matter is removed from the list of active cases.

AND THE COURT NOTES THAT:

A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

B.Pursuant to s 81 of the Act the parties intend these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

C.With respect to the transfer of the real property situate at and known as Property A in the State of Victoria, being the whole of the land contained in Certificate of Title Volume (omitted), to the Applicant pursuant to these Orders, the Court requests that the State Revenue Office of Victoria allow the Applicant to complete and lodge any documents required for the assessment of stamp duty, including but not limited to the prescribed Form 9A Transfer between Domestic Partners Statutory Declaration and Form 62 Purchasers Statement, in lieu of the Duties Online Form required to be completed by both parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8012 of 2017

MS CHESTER

Applicant

And

MR MCKENNA

Respondent

REASONS FOR JUDGMENT

1. These reasons support the making of orders on 2 October 2017.

2. These proceedings commenced upon an initiating application being filed on 9 August 2017 by the Applicant mother.  In that application, the Applicant sought final orders in respect of the parties’ children and property orders in respect of the parties’ property.  In that application, the Applicant sought sole parental responsibility of [X] born (omitted) and [Y] born (omitted) (together, ‘the children’).  [X] is now aged (omitted) months and [Y] is aged (omitted).  The Applicant sought further that the children live with her and that they spend time or communicate with their father as agreed in writing between the parties and that for the purposes of any such time, this must be supervised at a professional child supervision centre by a professional supervisor to be agreed between the parties.  Such orders as sought were made on 2 October 2017.

3. In her application, the Applicant also sought orders with respect to passports issuing for the children to enable them to depart the Commonwealth of Australia.  She withdrew from proceeding with that part of the application upon the hearing of this matter.

4. The Applicant sought final property orders in terms of the final orders made by the Court on 2 October 2017.  Additionally, on the hearing of this matter, the Applicant sought that the notations which accompany the final orders of 2 October 2017 be made.  Notations A and B are usual notations in respect of the making of parenting orders and property orders, and notation C facilitated the efficient and less costly administrative matters pertaining to the execution of the orders.

Background

1. These proceedings first came before the Court on 21 August 2017.  There was on that day no appearance by or on behalf of the Respondent father.  The Court was satisfied that the Respondent had been served with the initiating application and initiating affidavit of evidence and financial statement, both sworn 9 August 2017, by the Applicant. Affidavits were filed, which went to an acknowledgment of service filed on 18 August 2017, and an affidavit of service proving signature filed 20 September 2017. 

2. On 21 August 2017, the following orders were made by the Court:-

   “(1)   The matter be adjourned to 2 October 2017 at 10.00am for final hearing (with an estimated hearing time of 1 day).

   (2)     Until further order the mother have sole parental responsibility of the children [X] born (omitted) and [Y] born (omitted) (‘the children’).

   (3)     The children live with the mother.

   (4)     The Respondent file and serve a response, financial statement and trial affidavit within 28 days hereof.

   (5)     The Applicant file and serve any further affidavit evidence on which she seeks to rely by 29 September 2017.

   (6)     The Respondent is to file and serve a notice of address for service within 7 days hereof.

   (7)     The Respondent is to appear or be represented on the trial date. In the event the Respondent fails to so appear or be represented or fails to file affidavit evidence for trial then there is liberty to the Applicant to seek to proceed undefended.

   (8)     The solicitors for the mother serve upon the father a copy of these orders as soon as is practicable. 

   AND THE COURT NOTES THAT:

   A. Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

   B. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012 (Cth).”

3. The Respondent failed to comply with the procedural orders set out in the orders of 21 August 2017.  In particular, the Respondent failed to comply with orders 4, 6 and 7.  The Court was satisfied on the affidavit evidence filed that the Applicant had complied with order 8 of the orders made on 21 August 2017.  Given the failure of the Respondent to comply with the orders, the Applicant sought to proceed undefended on 2 October 2017. 

4. For the purposes of the hearing on 2 October 2017, there was tendered in the proceeding and marked as “Exhibit 1” correspondence from the solicitors acting on behalf of the Applicant to the Respondent, care of Mr W, General Manager, (omitted Correctional Centre) in (omitted), dated 27 September 2017.  That correspondence enclosed by way of service the further affidavit of evidence on which the Applicant relied which was filed with the Court on 27 September 2017.  That correspondence also noted, relevantly:-

   “We confirm that the final hearing for this matter is listed for Monday, 2 October 2017 at 10.00am.  We again refer to our letter to you dated 10 August 2017 in relation to the requirement to attend Court by electronic communication and outlining the steps required for same.

   You are required to appear or be represented on the trial date.  In the event you fail to attend, our client will be seeking to proceed undefended.”

1. The earlier correspondence of 10 August 2017 to the Respondent, care of Mr W, was also tendered as part of “Exhibit 1” in evidence in the proceedings, with that earlier correspondence going to the service of the initiating application, the affidavit of the Applicant filed 9 August 2017, the notice of risk filed 9 August 2017 and the Applicant’s financial statement filed 9 August 2017. An acknowledgment of service accompanied the above documents, together with a Court request form for electronic attendance by video/telephone (with stamped envelope addressed to the Family Court for sending by Mr McKenna).

2. The correspondence of 10 August 2017 dealt with special service and noted that r.7.10 of the Family Law Rules2004 (Cth) required that the person in charge of a prison must be served by way of special service to effect service on a prisoner. The correspondence was thus addressed to the General Manager of (omitted Correctional Centre) and required Mr McKenna to receive all the enclosed documents as soon as possible. That correspondence by way of special service was forwarded by Women’s Legal Service Victoria prior to Lander & Rogers commencing to act on behalf of the Applicant.

3. All of the above referred to documents were relied upon by the Applicant in the proceedings.  Additionally, the Court had before it information provided by the Department of Health and Human Services (‘DHHS’) in response to the notice of child abuse.  That notice advised that DHHS took no further action in response to the notice on the basis that no current concerns existed for the children in the primary care of the Applicant.  DHHS noted the Applicant was acting protectively and that she was supported closely by (omitted housing service) (family violence service) and had obtained an intervention order against the father, who is currently incarcerated and having no contact with the children.  It was reported that Child Protection had received four previous reports in relation to the children, the first being in (date omitted) which was closed at intake; the second report, received in (date omitted), resulted in protective intervention.  The response noted:-

   “Concerns were around the mother and father engaging in a verbal argument in their room and [A] intervening by verbally abusing Mr McKenna.  [A] has then gone to the kitchen with Mr McKenna following her and stabbed him three times with a steak knife.  CP intervened, and [A] went to reside with her grandparents and an IVO was put in place.  Report closed as family are engaged with services and [A] is residing out of the home.”

4. The Court notes that [A] was born on (omitted) and is currently aged (omitted).  She is the Applicant’s daughter from a previous relationship.

5. A third report was received in November 2016 and closed at intake, as was a fourth report received in January 2017 closed at intake.  The report of 24 August 2017 from DHHS further noted:-

   “The pattern and history shows a clear escalation in the father’s level, frequency and severity of violence towards the mother.  The mother has obtained a full IVO against the father and is seeking full custody of the children through the Family Law Court.  The mother has maintained engagement for an extended period of time with (omitted housing service).  Whilst the father is currently incarcerated, there are concerns about the mother and children’s safety upon his release.

   Summary of Current Protective Concerns and Outcome

   
   
   

   In the Notice of Risk received by Child Protection in relation to [X] and [Y], the concerns relate to the children’s exposure to the father’s significant family violence towards the family, his illicit substance use and criminal behaviours that have led to this current incarceration and the risk to the children should he have unsupervised care of the children at any time.

   
   
   

   ...”

History

1. The Applicant was born on (omitted) 1981.  She is now aged 36 years.  She is engaged in home duties.  She receives no income from paid employment but receives income by payment of a disability support pension, family tax benefit A and B and Centrelink rent assistance payments. 

2. The Respondent was born on (omitted) 1982.  He is now 37 years of age.  He is unemployed.  He is in prison at (omitted Correctional Centre), serving two years in relation to arson, recklessly causing injury and a breach of an intervention order. 

3. The parties commenced cohabitation in around (omitted) 2014.  Separation occurred on a final basis around 29 November 2016 upon the Respondent physically assaulting the Applicant and attempting to strangle her. 

4. Throughout the relationship, the Applicant was the primary carer of the children, she continues in that role.  The Respondent was employed casually as a (omitted) and thereafter was a (omitted). The Applicant did some part-time work. Both parties attended to the household chores during their relationship. 

5. The Respondent abused alcohol and drugs throughout the relationship.  His consumption of alcohol to excess resulted in frequent outbursts of anger and violence toward the Applicant and the children.  The Respondent threatened to commit suicide on several occasions when the Applicant told him she wished to end the relationship.  The Applicant felt trapped and scared for the safety of herself and her children.  The Applicant set out in her first affidavit of evidence (paragraph 20) that she had serious concerns about the Respondent’s ability and capacity to care for the children unsupervised, if at all.  She noted her concern was due to a long history of severe domestic violence perpetrated by the Respondent, and in paragraph 21 of her affidavit sworn 9 August 2017, she set out a number of examples of such behaviour.  Each of these episodes as described is concerning, but the below incidences were particularly so:-

   a)in (date omitted) the Applicant’s daughter, [A], woke up to the Respondent standing over her and holding a knife.  She was terrified and thought the Respondent was going to kill her.  The Respondent then ran the knife over his wrists while standing over [A] and saying words to the effect that he was going to “kill himself”;

   b)in (date omitted) the parties got into a physical altercation in the course of arguing with each other.  The Respondent walked into the kitchen, picked up a knife and stabbed the knife into the parties’ bedroom door.  The child [A] and her friend witnessed this incident. The Respondent continued holding the knife and behaving erratically.  The Applicant was terrified that the Respondent was going to stab them all.  [A] called the police, screaming for them to “hurry up”. Following this incident, the police obtained an intervention order dated (date omitted) on behalf of the Applicant;

   c)in (date omitted) [A] heard the parties arguing and tried to intervene.  The Respondent told [A] to “get the fuck out”. The Respondent followed [A] in an intimidating manner.  [A] responded by going to the kitchen, picking up a knife and stabbing the Respondent in the hip, chest and arm.  She then rang 000 and asked for the police and an ambulance. Following this incident, [A] was charged by the police with assault.  She is currently on probation.  The Applicant assisted [A] in relocating into crisis accommodation in (omitted) prior to [A] returning to live with the Applicant following the departure of the Respondent; 

   d)in (date omitted), the Respondent left the home, taking a considerable dosage of the Applicant’s prescription medication and removing most of the money in the parties’ joint account to spend on “massages and alcohol”;

   e)on (date omitted), following an assault perpetrated by the Respondent upon the Applicant, the Respondent followed the Applicant into the bedroom holding a kitchen knife.  He raised it to his stomach and told the Applicant she could “watch him bleed”.  The Respondent then grabbed one of his neckties and proceeded to wrap it around the Applicant’s neck twice. He pulled on the tie so hard the Applicant could not breathe.  She thought she was going to faint and was terrified that the Respondent was going to kill her. Struggling to breathe, she asked the Respondent to stop. He did so. The Respondent then left the house.  Upon his return, he took a bottle of champagne and pills from the parties’ medication cupboard and went into a room in the home.  The Applicant believed he was trying to kill himself.  She then called an old work manager, the ambulance and the police. 

6. As a result of the immediately above described incident, the Applicant varied the intervention order she had already obtained to a full no contact intervention order on (date omitted). The intervention order named the Applicant and the children as affected family members. The order required the Respondent to vacate the former matrimonial home.

7. On learning of the Respondent being served with the intervention order of (date omitted), the Applicant determined to vacate the former matrimonial home for a short time.  She drove with the children to Melbourne.  She and the children relocated to temporary crisis accommodation.  (omitted housing service) assisted the Applicant with petrol, as the Respondent had again withdrawn all of the parties’ funds from their joint bank account.  Later that night, the Applicant received a phone call from the police advising her that the Respondent had burned down the former matrimonial home. 

1. The Respondent was taken into custody following his burning down of the former matrimonial home and the police obtained a further intervention order on the Applicant’s behalf dated (date omitted).  That order was then extended and varied on (date omitted) to allow the Respondent to communicate with the Applicant for the purposes of negotiating property matters by letter, email or phone. The intervention order dated (date omitted) is for a period of five years and expires on (date omitted).

2. The Applicant remains extremely concerned for the safety and wellbeing of the children in the care of the Respondent.  She is, however, supportive of the children’s father having contact with them in a supervised setting with a professional supervisor, in light of the Respondent’s violent history toward the children and the Applicant. 

3. No responding material by way of response, affidavit evidence, financial statement or notice of address has been filed in these proceedings by the Respondent.

4. The Respondent’s criminal proceedings were heard in the (omitted) County Court on (date omitted).  The Respondent was sentenced as follows:-

   a)Charge 1, recklessly causing injury.  Sentenced to nine months imprisonment (two months of his sentence is to be served cumulatively upon the sentence imposed on charge 2);

   b)Charge 2, arson.  Sentenced to two years imprisonment, followed by a community corrections order for a period of three years;

   c)Charge 3, contravention of family violence intervention order.  Sentenced to four months imprisonment (one month of this sentence is to be served cumulatively upon the sentence imposed on charge 2).

5. The total effective sentence for the Respondent is two years and three months imprisonment, followed by a three‑year community corrections order.  (omitted) days were declared as having already been served. 

Parenting Orders

1. The Court is satisfied that it is in the best interests of the children that they live with their mother and that she have sole parental responsibility for them.  The history of domestic violence, as perpetrated by the Respondent upon the Applicant, is very concerning.  It continued throughout the parties’ cohabitation period and involved very violent physical assaults.  Upon being required to leave the former matrimonial home by court order, the Respondent returned to burn it down. 

2. The presumption of equal shared parental responsibility, as set out in s.61DA of the Family Law Act 1975 (Cth) (‘the Act’), is clearly rebutted in the circumstances of this case. Intervention orders have been required to be obtained on behalf of the Applicant and children in relation to the risk the Respondent presents to them.

3. The Respondent will be incarcerated for the next two years and, as a matter of undisputed fact, the Applicant will be solely responsible for all decision making in respect to the children’s lives. The Respondent’s criminal acts and violence demonstrates a significant lack of capacity on behalf of the Respondent to care for the children, provide for their safety, and promote the children’s relationship with their mother.  His acts of severe domestic violence throughout the relationship have created a very dangerous and toxic environment for the children. 

4. Although the Applicant understands and recognises the importance of the children being able to have a relationship with both their parents, she does not support anything other than supervised time spent with between the father and children, and in a professional supervision environment. Given the Applicant’s seeking of such order and her confidence that she can ensure such professional supervised setting, the Court shall make the order as sought by the Applicant.  On the facts of this case, it is also quite open to the Court to make no order for time spent with between the Respondent and children. 

5. The children are very young, vulnerable children, unable to protect themselves.  Their primary attachment figure and carer is clearly their mother. The children have a close, loving and trusting relationship with their mother and with their sister [A]. It is only the Applicant who has shown an understanding of the proper responsibilities of parenting.  Indeed, not only has the Respondent shown a complete lack of insight into promotion of the children’s physical and emotional wellbeing, but he has sought to deprive them of any financial security in his actions of depriving them of a roof over their heads and removing funds from the parties’ joint bank account so as to leave the Applicant destitute.

Property Matters

1. At the commencement of cohabitation, neither the Applicant nor Respondent had any assets of significance, save they both owned motor vehicles of nominal value. 

2. At the commencement of cohabitation, the Applicant was residing with her eldest daughter, [A] at Property A in the State of Victoria. The property was owned by [A]’s paternal grandfather, Mr P, who rented the property to the Applicant for approximately $250 each week.  The Respondent moved into this property upon cohabitation commencing, and the parties resided in it throughout the relationship.  The Applicant deposes that both she and the Respondent contributed financially to the best of their respective abilities in running the household. The Applicant earned around $200 per fortnight from her part‑time work. The Respondent earned around $500 per week from his employment.

3. In or around February 2016, Mr P decided to transfer the property to the Applicant and Respondent for the sum of $250,000.  At the time, the property was valued by the bank advancing the mortgage in the sum of approximately $310,000.  The parties were approved finance on the basis that they acquired a loan secured by mortgage over the Property A property in the sum of approximately $248,000.  Thus, the equity in the property of approximately $60,000 was effectively gifted to the parties by Mr P.

4. The only other direct financial contributions that came into the parties’ household during the period of cohabitation was a total amount of $10,000 gifted to the Respondent from his mother and grandmother.  Those amounts were applied by the Respondent toward the purchase of his motor vehicle, motorbikes and trailer. 

5. During the relationship, the Applicant made greater non‑financial contributions to the household and was primary carer of the parties’ two young children, and of her eldest daughter, [A].  She attended to all their schooling, health and other needs. 

Damage to Former Matrimonial Home

1. As the Respondent deliberately burnt down the former matrimonial home on (date omitted), (omitted) denied cover under the parties’ home insurance policy, (omitted) (‘the policy’).  However, (omitted) thereafter advised, that notwithstanding the Applicant was not entitled to be indemnified pursuant the policy, (omitted)) were prepared to offer an “ex gratia” payment to her in the amount of $(omitted).  (omitted)) entered into a deed of settlement with the Applicant providing that she receive the sum of $(omitted).  A copy of the deed of settlement signed on 7 September 2017 is before the Court in “Exhibit REC-04” to the affidavit of the Applicant sworn 27 September 2017.

2. The payment to the Applicant was made outside the terms of the policy.  The payment was made to the Applicant solely.  The (omitted) paid the sum of $(omitted) into the Applicant’s solicitor’s trust account on 19 September 2017. 

3. The Applicant has, following receipt of the payment from (omitted)), been required to make payments as follows:-

   a)the amount of $(omitted) with respect to the demolition of the burnt down dwelling;

   b)the amount of $(omitted) to the (omitted) with respect to the (omitted)’s attendance at the property, installation of temporary fencing and boardings to secure the property and make it safe for the public; and

   c)the amount of $(omitted) to Telstra with respect to paying out the contract for the Applicant’s phone and iPad.

   Thus, an amount of $(omitted) remained in the Applicant’s solicitor’s trust account on her behalf as at 27 September 2017. 

Mortgage Balance

1. As at 9 August 2017, the balance of the loan secured by mortgage to the (bank omitted) over the property was $(omitted).  The (bank omitted) agreed to a moratorium on the mortgage repayments in relation to the property due to the Applicant’s ongoing financial hardship. 

2. Thereafter, the (bank omitted) offered to reduce the outstanding balance owing on the mortgage in the sum of $(omitted), subject to a transfer of the property into the sole name of the Applicant as a condition to any reduction in the mortgage. 

Contributions

1. Although both the Respondent and Applicant were registered on title to the property as joint proprietors, the equity in the property and, indeed, its purchase, was a contribution by the Applicant. [A]’s grandfather had intended for the wife to receive the benefit of the property, given the lack of financial and child support from his son, [A]’s biological father.  It was the intention of Mr P and the Applicant to transfer the property to the Applicant at a price affordable to the Applicant and Respondent, and therefore consideration for the transfer was $(omitted).  The (bank omitted) internal bank valuation was $(omitted). The equity in the property allowed the Applicant and Respondent to be approved for the loan for purchase and without needing to pay mortgage insurance. 

Asset Pool

1. The asset pool available for distribution between the parties is as follows:-

Asset	Ownership	Value
Property A	Joint	E$134,000
(bank omitted) Joint Bank Account	Joint	Nominal
(bank omitted) Bank Account	Wife	Nominal
Bank Account/s	Husband	Nominal
Bikes (Motor and Dirt Bike)	Husband	E$1,500
(car model omitted) (2003)	Wife	E$1,000
Liabilities
Mortgage on FMH	Joint	-$246,122
Total	-$109,622
Superannuation	Wife	$3,831
Superannuation	Husband	E$20,000
Total Pool (incl. superannuation)	E -$85,791

1. The above asset pool does not include the reduction of mortgage of $(omitted) by the (bank omitted), as such partial debt relief offer was contingent upon final orders being made which transferred the ownership of the former matrimonial home to the sole proprietorship of the Applicant. 

2. The Applicant intends to rebuild on the land at Property A.  She wishes to do so, she feels safe and supported in the community.  She has obtained preliminary building quotes for the works required from (builders omitted), which estimate the total cost of the building works required to be $(omitted).  In the event the partial debt relief offer made by the (bank omitted) is available to the Applicant, she will have approximately $(omitted) available to her in circumstances where no monies are distributed to the Respondent.

Future Needs

1. The Applicant currently has the full‑time care and support of the parties’ two young children and, additionally, supports her eldest daughter. She is unable to re‑enter the workforce, suffering psychologically as a result of the domestic violence perpetrated upon her.  She suffers from anxiety and depression.

2. The Applicant does not anticipate receiving any child support from the Respondent and, most certainly, she shall not do so for at least two to three years.  Given the history, it is unlikely that the Respondent will provide child support payments to the Applicant into the future. 

3. The Applicant does not anticipate that her future earning capacity will be high as she holds no qualifications and has the full‑time care of young children.  Her hope is that she might be able to return to work in the (omitted) industry at some point in the future. 

4. The Respondent’s immediate future earning capacity is also non‑existent or extremely minimal, and he shall have a low earning capacity.

Other Matters

1. The Applicant seeks the notation that is provided for in the final orders made on 2 October 2017, given the new “online duties” process now operative.  In order to complete the transfer of land pursuant to any final orders made by the Court, including the step of getting the transfer stamped non‑dutiable to obtain the exemption from stamp duty, requires the active participation of the Respondent.  It is not likely that the Respondent will cooperate with this process. 

2. The Applicant submits that in certain circumstances the State Revenue Office may allow a transferee to submit the “old forms” to the State Revenue Office when lodging the transfer to be stamped.  The Applicant believes that the notation now made to the orders will assist in obtaining exemption from the duties online form and allow the Applicant to instead submit the alternative forms, which will only require her signature as transferee.

Conclusion

1. The Court determines it is just and equitable in the circumstances of this case that the mother receive 100 per cent of the total net assets and liabilities (excluding superannuation entitlements) of the parties. The Respondent can retain his modest superannuation sum.

2. The Applicant’s direct financial contributions to the acquisition of the former matrimonial home were at least $60,000 greater than those of the Respondent.  Any contributions made by the Respondent during the parties’ short period of cohabitation to the rental, mortgage repayments and living expenses are far outweighed by the Applicant’s own additional contributions to the welfare of the family and indirect contributions, and by her future needs as the full‑time carer of two young children without any financial support provided by the Respondent.

3. Justice and equity considerations require that the Respondent should not benefit from his criminal actions of destroying the former matrimonial home.  As submitted by the Applicant, the considerable and highly debilitating family violence perpetrated upon the Applicant by the Respondent is a negative contribution of the Respondent. The Respondent, additionally, should not benefit from his criminal actions by having allocated to him any part of the monies or benefits received by the Applicant from the (bank omitted) and (omitted) post‑separation. The Court thus accedes to the application of the Applicant.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 13 October 2017