Coulson and Coulson

[2016] FCCA 3319

FEDERAL CIRCUIT COURT OF AUSTRALIA

COULSON & COULSON [2016] FCCA 3319

Catchwords:
FAMILY LAW – Undefended parenting and property hearing.

Legislation:

Family Law Act 1975, s.79

Federal Circuit Court Rules 2001 (Cth), r.16.05

Cases cited:

Stanford & Stanford (2012) 247 CLR 108

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143

Applicant: MS COULSON

Respondent: MR COULSON

File Number: DGC 927 of 2016

Judgment of: Judge Harland

Hearing date: 9 December 2016

Date of Last Submission: 9 December 2016

Delivered at: Dandenong

Delivered on: 9 December 2016

REPRESENTATION

Solicitors for the Applicant: No appearance

Counsel for the Respondent: Mr Chalmers

Solicitors for the Respondent: Chris Wood & Associates

ORDERS

1. The Respondent Husband be granted leave to proceed on an undefended basis.

2. That:

   (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;

   (b)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

   (c)Insurance policies remain the sole property of the owner named therein;

   (d)Each party be solely liable for and indemnity and the other against any liability encumbering any items of property any items of property to which that party is entitled pursuant to these orders; and

   (e)Any joint tenancy of parties in any real or personal estate is hereby expressly severed.

3. That the husband have sole parental responsibility for the child X born (omitted) 2007 (“X”).

4. That X live with the husband.

5. That X spend time and communicate with the wife at times agreed in writing between the parties.

6. That the wife be restrained from using illicit drugs within 24 hours prior to or during any time to be spent with X.

7. That any time that X is to spend with the wife be conditional upon her undergoing a supervised drug screen within 24 hours of written request from the husband and providing the results to the husband within 30 days of the request.

8. Pursuant to sub-rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) the Applicant be able to apply for the Court to vary or set aside this final order within 60 days of the date of these orders.

NOTING

1. A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 927 of 2016

MS COULSON

Applicant

And

MR COULSON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was listed before me initially to be listed on 5 December 2016, but due to judicial unavailability was moved to today at 9.30am for an undefended hearing.  The background of the matter is that the applicant mother commenced proceedings on 4 April 2016.  She sought unparticularised property orders and maintenance orders and at that time the child of the relationship, X, born (omitted) 2007 (“X”), was living with the mother.

3. The matter first came before the Court on 2 May 2016 and some procedural orders were made and the matter was adjourned.  The parties attended a conciliation conference and further orders were made.  The father did not file his responding documents until 27 October 2016.  In documents initially the father was that the mother’s application be struck out and that there be no orders with respect to division of property.  He was also seeking that X live with him and that he have sole parental responsibility and that arose because of the mother’s drug use and concerns about X being at unacceptable risk in the mother’s care. 

4. There is a response from the Department of Health and Human Services (“the Department”) to the Notice of Risk dated 4 November 2016 where the Department noted that there were reports raising concerns about X being exposed to family violence between the mother and her ex-partner, Mr S, who is not the father in these proceedings. The Department noted that the mother had acted protectively in that regard by contacting the police and obtaining an intervention order.

5. There were also reports that the mother was allegedly using ice and that Mr S had overdosed on ice. The report for the period 22 August 2016 to 1 September 2016 indicated that the father had acted protectively by intervening and taking X into his primary care. Whilst the father was working in Perth and working on a fly-in fly-out basis, his father had come to Melbourne to assist with care for the child. The father also told the Department that he was going to make an urgent application to the Court, which he did by filing an Application in a Case on 27 October 2016. In that application he has sought parenting orders with respect to X and I made orders on 21 November 2016 providing for the father to have sole parental responsibility for X, for X to live with the father and spend time with the mother as agreed.

6. I also made orders restraining the mother from using illicit drugs within a 24-hour period prior to spending time with X and that her time be conditional upon her undergoing a supervised drug screen within 24 hours of a request from the husband’s solicitor.  The response from the Department further recorded an intake and assessment during the period of 26 to 27 September 2016 where a report was received about concerns that the mother was threatening to remove X from the father’s care and that they had received advice about an intervention order which would provide safety in the interim prior to a further hearing in this Court.

7. There was a further report raised for the period 1 October 2016 to 7 October 2016, being concerns that the father may have returned to work in the (employment omitted) and it was not known who was caring for X.  The Department noted that it assessed that there was no need for further intervention, because X remained living with the father and the father had arranged for his parents to travel to Melbourne to care for X whilst he was away for work.  The Department concluded that the father had continuously demonstrated protective capacity for X and that X was not at a significant risk whilst in the father’s care.

8. That report was sent to the parties on 7 November 2016.  The mother did not attend Court on 21 November 2016. The mother has also not attended Court today.  The mother contacted chambers seeking an adjournment.  She had sent that without copying in the father’s solicitors. Chambers advised her she needed to contact the father’s solicitors. The mother was seeking an adjournment saying that she wished to obtain legal representation and put on material, as she disagreed with what the father was saying. The mother said that she had changed address and had not informed the Court.

9. It is clear that the mother is aware of today’s Court date and also aware of the orders that the father is seeking and the allegations he makes.  Despite this the mother has not attended Court today.  I will treat her email as being an application to adjourn today’s proceedings and I refuse that application because the mother has had opportunities, being aware of the allegations, to put material before the Court and to attend Court.

10. It is clear from the father’s material that, as far as the property issues are concerned, there is a negative property pool.  In particular, he sets out the assets and liabilities in his updated affidavit.  Which was filed and served on 5 December 2016. Whilst that affidavit was only filed shortly before today’s hearing, as I have indicated, I am satisfied that the wife is on notice of it.  The father has provided material in that affidavit as to the value of the home and the mortgage on it, as well as other debts and liabilities and I do not propose to set them out in the reasons.

11. I am satisfied that there is a negative property pool or a pool so small that nothing would be gained in adjourning the matter, as there is a real possibility that it would simply increase the father’s costs by a further Court attendance given the mother’s failure to engage in these proceedings in recent months, despite being the person who commenced the proceedings. 

12. Until the High Court of Australia decision in Stanford & Stanford (2012) 247 CLR 108 (“Stanford”), the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court of the Family Court of Australia in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78, 386 [39].

13. The High Court considered the operation of s.79 of the Act in the matter of Stanford. In this case, the majority stated at [35]-[36] that:

    It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”

    The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. [Footnotes omitted]

14. The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:

    1.Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.

    2.Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.

    3.Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).

15. In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.

16. The High Court also pointed out that what is just and equitable is different in every case.

17. I am satisfied that it is just and equitable to make property orders and that, doing the best one can in a situation like this, that the orders that the father seeks are appropriate.

18. I will make the orders that he seeks in his minute of order, which essentially says the parties keeping the assets that they have, which means both of them will be carrying some debt and I am particularly mindful that the father has full-time care of X and that certainly on the evidence before me as it stands that is likely to be the case in the future.  The mother’s evidence that she filed when she commenced the proceedings is that she is in receipt of Newstart, so the father is responsible for providing for X financially, as well as providing for her emotional and intellectual welfare.

19. The father also gives evidence in his affidavit that he will need to find new employment in Melbourne because he cannot continue to rely on his father to provide that care.  As a (occupation omitted) worker, he was earning a good income but is unlikely to be able to earn that same income. One of the reasons why workers are well paid in that kind of arrangement is because they are spending significant times away from their home base.

20. If there is any equity at all in the home then on the father’s evidence, he would be in a net position of about $4000, which is extremely modest given the responsibilities that he will have to provide for X.  I am mindful of the report from the Department and I am satisfied that the father has acted protectively for X and will continue to do so.  I will also make the parenting orders that the father seeks in his minute, which really is in the same terms of the orders that I made on the last occasion.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  20 December 2016