Darby and Battersby

[2016] FCCA 2672

FEDERAL CIRCUIT COURT OF AUSTRALIA

DARBY & BATTERSBY [2016] FCCA 2672

Catchwords:
FAMILY LAW – Undefended final property hearing.

Legislation:

Family Law Act 1975, ss.75(2), 106A, 117(2)

Child Support (Registration and Collection) Act 1988, s.116(2)

Applicant: MS DARBY

Respondent: MR BATTERSBY

File Number: DGC 2581 of 2015

Judgment of: Judge Harland

Hearing date: 7 October 2016

Date of Last Submission: 7 October 2016

Delivered at: Dandenong

Delivered on: 7 October 2016

REPRESENTATION

Counsel for the Applicant: Ms Ramos

Solicitors for the Applicant: Ryan Carlisle Thomas

Counsel for the Respondent: No appearance

ORDERS

1. Within seven days of the date of these orders, the balance of sale proceeds of the property situate at Property R, namely $41,962.37, currently held in the trust account of solicitors for the Applicant, Ryan Carlisle Thomas, be provided to the Applicant.

2. Each party be solely liable for and indemnify the other, and keep them indemnified, from all debts and liabilities in their name whether solely or jointly with any other person.

3. The parties forthwith do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of the husband’s right, title and interest in the onsite caravan located in (omitted).

4. In the event either party fails, refuses or neglects to sign or execute and return a document required to be signed by them to give effect to these orders within seven days of a written request to do so then a Registrar of the Melbourne or Dandenong Registry of the Federal Circuit Court is hereby appointed under section 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of the defaulting party.

5. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   (a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;

   (b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

   (c)monies standing to the credit of the parties in any joint bank account are to be divided equally between the parties and thereafter each of the parties shall do all acts and things and sign all documents necessary to close that account/s;

   (d)each party forgo any claims they may have to any superannuation or work related benefits or entitlements belonging to or earned by the other;

   (e)insurance policies remain the sole property of the owner named therein;

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

6. All extant applications be otherwise dismissed and the matter removed from the pending cases list.

7. The husband pay the outstanding costs from the Order made on 4 May 2016 fixed in the sum of $3,341.00.

8. The husband pay the wife’s costs of the wife’s attendance at court on 27 June 2016 fixed in the sum of $1,320.00.

9. The husband pay the wife’s costs for the preparation of and appearance in the final hearing this day fixed in the sum of $6,230.00.

NOTATION

1. The parties intend these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2581 of 2015

MS DARBY

Applicant

And

MR BATTERSBY

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 case is listed today at 9.00am for an undefended property hearing.    It is almost 10 minutes past nine.  The husband was called outside the Court and has not attended.  That is consistent with the pattern of his lack of engagement with this matter.  The applicant wife filed her application on 19 August 2015.  The husband attended late when the matter was in Court on 28 October 2015 and orders were made by consent which included a requirement for him to file and serve a response affidavit and financial statement and also for the parties to sign all documents necessary to sell the former matrimonial home at Property R.

3. The matter was then before me on 4 May 2016 and the husband did attend on that occasion.  The husband has not complied with orders to file material.  All he has done is filed two notices of address, one on 28 October 2015 and the other on 6 July 2016.  The wife has had to bring this matter back to Court in May 2016 because of the husband’s failure to comply with the consent orders for the sale of the property.  The sale of the property was an urgent issue because of the husband’s failure to pay the mortgage.

4. The wife’s unchallenged evidence is that she and the husband were in a relationship that was on-again, off-again between 2006 until they married on (omitted) 2009.  They separated in the middle of April 2013.  There is one child of the relationship, X born (omitted) 2006 (“X”), who is aged nine and X has autism.  The wife has an older child who is 13 from a previous relationship. The wife has annexed a psychological assessment of X which makes it clear that X is a child with some special needs who needs assistance at school and has some difficulties with school environment and other environments that are subject to change.  He is a child who needs routine and consistency.

5. The wife says that she is working part time and she is not able to work more than part time because she needs to be there out of school hours for X, and I certainly accept that this is the case and that she does not have any greater earning capacity than what she is currently earning which is a modest income supplemented by Centrelink benefits.  She works casually.  The husband worked full time during the relationship and, as far as the wife knows, at least as at early 2015, remained employed full time earning about $1,350.00 a week.

6. The wife earns between $350.00 and $600.00 a week.  When the parties separated, the wife and children moved out of the former matrimonial home and the husband remained in the former matrimonial home.  The parties had been in negotiations with the assistance of their respective lawyers in 2014 and the wife’s consolidated trial affidavit filed on 20 September 2016 confirms that it was necessary for the wife to commence the proceedings once it came to light that the husband was in arrears of the mortgage and the bank had issued a default notice.

7. The wife says that after that first default notice was issued, the husband indicated that he wanted to mediate and wanted to try and raise finance so he could keep the former matrimonial home.  She says that she was patient in giving him that opportunity but he was not keeping her updated and she started to feel that he was delaying her starting proceedings.

8. The bank then issued a second default notice in August 2015.  That notice was issued on 5 August indicating that the mortgage was behind by $4,115.94, and gave the husband until 10 September 2015 to remedy the default.  The wife, while she was on notice of that default then issued proceedings.  Her concern being to avoid the asset pool from being diminished which, unfortunately, due to the husband’s ongoing conduct in the matter, her concerns about him diminishing the pool has been realised.

9. The husband consented to orders for the sale of the property but failed to cooperate with those orders which led to the wife having to bring an application in a case.  It was necessary to give her sole occupation of the former matrimonial home, making restraints against the husband from damaging the property and entering the property, giving the wife sole conduct of the sale of the property, as well as ordering the marshal to remove the husband from the property if he failed to do so.  On that occasion I also made a costs order against the husband in the sum of $3341.  That costs order remains unpaid. 

10. There were County Court proceedings against the husband which was with respect to the mortgage.  The house and the mortgage were in the husband’s sole name.  The wife says that from when she was able to get sole occupation of the home the husband had left the property in a state where there was accumulation of rubbish and broken items around the home and that she hand to spend approximately $2,170.00 to clean and fix the property with the assistance of friends.

11. The property was sold and settlement took place on 27 June 2016. Prior to the settlement the husband again was obstructive and it was necessary for the wife to approach a Registrar of the Federal Circuit Court of Australia pursuant to section 106A of the Family Law Act 1975 (Cth) (“Family Law Act”) to sign the discharge of mortgage papers and a transfer of land. The proceeds of sale of the property is $41,962.  That is sitting in a trust account, and that represents most of the property available for division.

12. The wife sets out the assets and liabilities of the parties as far as she is aware at paragraph 11 of her affidavit.  That includes a caravan in joint names that she estimates to be worth about $7,000.00.  She has a car, a (omitted) Hyundai which she says is worth about $800.00, and the husband has a Kia (omitted) car worth about $4000.  There is a loan to the wife’s mother which she says the husband took out in order to buy a car whilst they were married.  I don’t have any further evidence of that loan.  The wife has superannuation of $33,684.  The husband has a small amount of superannuation with (omitted) and the wife believes he has a claim which he was pursuing with his employer for unpaid superannuation of about $36,000.  The wife does not know what other assets and liabilities the husband may have because the husband has failed to comply with his obligations to provide full and frank disclosure and has also failed to file any documents in these proceedings.

13. The wife seeks orders that she receive the whole of the proceeds of sale; that she keeps her motor vehicle and that she keeps the caravan and her superannuation.  That leaves the husband with his motor vehicle, his superannuation and any other assets he may have.  The wife refers to the contributions that each of them made during the marriage.  She says that she contributed to half of the deposit for the former matrimonial home and half the cost of the caravan.  She says that she was working part-time and looking after the children during the marriage.  The husband was working full-time and they largely kept their finances separate but did open a joint account.  The wife says that she was primarily responsible for looking after the children. 

14. Certainly, it would be recognised that the husband has made contributions to the relationship and the wife acknowledges this. One of those contributions would have been having the wife’s oldest son as part of the household.  I am satisfied on the wife’s evidence which is unchallenged that the husband has deliberately obstructed the sale of the property and has reduced the asset pool through his failure to pay the mortgage in the first place when he had the benefit of occupying the property and not rectifying the defaults but also in the state that he left the property in.

15. The husband has also increased the wife’s legal costs in these proceedings through his actions.  I am satisfied that it is just and equitable to make a property settlement between the parties.  I am also satisfied that the orders that the wife seeks in her amended application which was served on the husband is just and equitable and I propose to make the orders now sought in her application.

16. The property pool is very modest, made more so by the husband’s conduct. The wife has significant section 75(2) factors in her favour, being the care of X, who as I have indicated needs a significant amount of care and assistance from the mother this is without any assistance at all from the husband. The husband has not seen X since March 2015, has made no attempts since then to be a part of X’s life. Exhibit A is a certificate under section 116(2) of the Child Support (Registration and Collection) Act 1988 (Cth) certifying that as at 19 September 2016 the husband has a child support debt of $8616.71. That is a relevant factor under section 75(2) of the Family Law Act 1975.  It seems unlikely that the husband will meet his child support obligations unless the child support agency is able to garnishee his wage if he is working or pursue it in some other manner.

17. It is likely that the wife will have sole responsibility for X’s care and sole responsibility for his financial support all the whilst with having a limited earning capacity in contrast to the husband.  So in those circumstances it is, in my view, to reward the wife what is most of the property pool that is available.

18. The wife also seeks an order for costs. She already has the benefit of a costs order made previously with respect to the application in a case. That hasn’t been paid and as discussed with her legal representative the wife is aware that there may well be an issue about enforcement of the costs order, bearing in mind the provisions of section 117(2A) of the Family Law Act 1975.  I am certainly satisfied that there are justifying circumstances for an award of costs.  The husband’s conduct has been such during the course of the proceedings that the wife’s costs had been increased, and that is particularly with respect to the necessity for her to prepare further material and seek that the Registrar sign documents on his behalf.

19. The wife seeks the sum of $11,997.19.

20. The amount that the wife seeks is an amount for indemnity costs. To make a costs order at all is a departure from the normal practice as set out in section 117(2) of the Family Law Act 1975.  I am certainly satisfied that a costs order should be made against the husband, even though it’s not possible to know what his financial circumstances are that is because of his own conduct.  In any event, impecuniosity does not prevent the Court from making a costs order, but what I propose to do is:  in addition to the order that was made previously for $3,341.00 - and I will confirm that that order will remain in place - I propose to make a costs order in accordance with the Federal Circuit Court scale of costs which will be a sum of $4,608.00 for the preparation of the one day hearing, costs for the appearance at the hearing today – and I propose to give costs for a half day, which is $1,081.00, as well as the advocacy loading which is 50 per cent of that amount.  So I will order that the husband pay further costs in the sum of $6,230.00.

21. I note on 27 June 2016 I reserved the applicant’s costs in the sum of $1,320.00.  I am satisfied that the husband should be ordered to pay those costs in addition so for ease of reference what I will do is set out, in essence, three orders for costs so that there is no doubt about what the wife is entitled to. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  14 October 2016