DONOVAN & BOWER

[2014] FCCA 2509

FEDERAL CIRCUIT COURT OF AUSTRALIA

DONOVAN & BOWER [2014] FCCA 2509

Catchwords:
FAMILY LAW – Parenting – whether children should spend more than one week at a time in the father’s care.

FAMILY LAW – De facto property – whether the debts arising out of the parties’ property investments should be shared equally.

Legislation:

Family Law Act 1975, ss.60 CA; 60CC; 90SM; 90SF(3)

Applicant: MS DONOVAN

Respondent: MR BOWER

File Number: DGC 1662 of 2013

Judgment of: Judge Small

Hearing date: 30 October 2014

Date of Last Submission: 30 October 2014

Delivered at: Dandenong

Delivered on: 31 October 2014

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

ORDERS

1. All previous parenting orders in relation to the children X born (omitted) 2005 and Y born (omitted) 2007 (“the children”) are hereby discharged.

2. The mother shall have sole parental responsibility for the children.

ORDERS BY CONSENT

1. The children shall live with the mother.

2. The children shall spend time and communicate with the father as follows;

   (a)Each Wednesday from after school until 7.00pm with the father to collect the children from school and to deliver the children to the mother at (omitted) in (omitted);

   (b)Each alternate weekend from after school on Fridays to before school on Monday;

   (c)The first week of each two week school holiday break; and

   (d)At such other times as agreed between the parties in writing.

3. The father shall ensure the children have their own beds to sleep in whilst living at the paternal grandmother’s residence and when he finds alternate accommodation.

4. The father is restrained by injunction from ingesting or injecting any form of illicit substance for 12 hours prior to and during time spent with the children.

5. The father shall undertake supervised drug screen testing (“the Testing”) and that:

   (a)the Testing occur at a pathology centre or other appropriate place from time to time;

   (b)the Testing occur randomly (but not more frequently than one time in any four (4) week period), and within 48 hours of the mother making a request for the Testing to occur;

   (c)he forthwith provide written authorities for the release of the results of the Testing to the mother; and

   (d)the results of the Testing, on each occasion, be forwarded as soon as possible to the mother.

6. Changeover shall take place at the children’s school or at the front of (omitted) Shopping Centre on the days the children are not at school.

7. The parties, their servants and agents be and are hereby restrained by injunction from;

   (a)abusing, insulting, belittling, rebuking or otherwise denigrating the other, and

   (b)discussing these proceedings,

   to or in the presence or hearing of the children or either of them and from permitting any other person to do so.

8. The properties at Property M, QLD and Property B, QLD, shall be sold and the proceeds of the sale be used to pay all associated debt from those properties.

9. The father be solely liable for the Ergon Energy bill outstanding being approximately $1,102.53 plus any associate debt collection costs.

FURTHER ORDERS OF THE COURT

1. The children shall spend time and communicate with the father:

   (a)For the whole of weeks 3 and 5 of the long summer holidays each year by agreement and failing agreement beginning at 10:00 am on the Monday and concluding at 10:00 am on the following Monday;

   (b)From 10:00 am to 6:00 pm on Christmas Day each year;

   (c)From 6:00 pm on the day before Fathers’ Day to 6:00 pm on Fathers’ Day each year;

   (d)On each of the children’s birthdays and the father’s birthday each year:

   (i)from after school to 7:00 pm if they fall on a school day;

   (ii)from 10:00 am to 2:00 pm in even numbered years and from 2:00 pm to 6:00 pm in odd numbered years if they fall on a weekend or on a weekday that is not a school day.

2. The children’s time with the father shall suspend at the following times:

   (a)From 6:00 pm on Christmas Eve to 10:00 am on Christmas Day and from 6:00 pm on Christmas Day to 6:00 pm on Boxing Day each year;

   (b)From 6:00 pm on the day before Mothers’ Day to 6:00 pm on Mothers’ Day each year;

   (c)From 2:00 pm to 6:00 pm on each of the children’s and the mother’s birthdays in even numbered years and from 10:00 am to 2:00 pm in odd numbered years should they fall on a weekend when the children would usually be spending time with the father.

3. Both parties shall ensure that they take the children to any medical and allied appointments and extra-curricular activities in which they are enrolled while the children are in their care.

4. Any debts remaining after the sale of the two properties known as and situate at Property M, Queensland and Property B, Queensland shall be apportioned as to 75% (seventy five percent) to the Respondent and 25 % (twenty five per cent) to the Applicant and the Respondent shall indemnify and keep indemnified the Applicant against all liability for 75% of that debt and the Applicant shall indemnify and keep indemnified the Respondent against all liability for 25% of that debt.

5. The Respondent shall pay to the Applicant the sum of $22,750 (twenty two thousand seven hundred and fifty dollars) within 90 days of the date of these orders (“the payment”).

6. Contemporaneously with the payment, the Applicant shall relinquish all her right, title and interest to the items set out in Schedule A to these orders.

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

Schedule A

Wife’s Bike
Children’s Bikes
Children’s Scooter
Outdoor furniture
Day lounge
BBQ
Treadmill
Boxing bag
Rower other exercise equipment
Trampoline X’s therapy equipment
My work stuff
X’s books
Cutlery, crockery etc.
Manchester
Ornaments
Camping gear
Televisions x3
Fridge
Washing machine
Dryer
Beds
Drawers all rooms
Couch
Table and chairs
TV cabinets x2
Fridge bar
Children’s toys
Furniture down stairs beds, couch, desk
Sewing machine
Chest
Lawn mower
Dolls house
Boat
Vending machines
Fish tank
Car (omitted)
Mr Bower's Car

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1662 of 2013

MS DONOVAN

Applicant

And

MR BOWER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings for parenting and property orders arising out of the breakdown of the relationship between the Applicant, Ms Donovan (“the Applicant”) and the Respondent Mr Bower (“the Respondent”).

2. The parties have two children, namely X born (omitted) 2005 and Y born (omitted) 2007 (“the children”).

3. When the matter came before me for trial on 30 October 2014, the Applicant had filed all required material, but the Respondent had filed none.

4. In those circumstances, I allowed the Applicant to proceed on an undefended basis, although I did allow the Respondent to cross-examine her.

5. The Applicant had provided an Outline of Case Document which set out the orders she sought and the trial was greatly shortened by the Respondent agreeing to most of those orders. I will therefore make those orders by consent.

6. The only issues that remained for decision were as follows:

   A.Should the children spend two or perhaps three separate weeks with the Respondent during each long summer holiday period, or half of those holidays in one block?

   B.Should the shortfall from the sale of two properties in Queensland be apportioned equally between the parties?

   C.Should the Respondent pay the Applicant a sum for half the value of items she says were in the family home at the date of separation?

Background

1. The parties began living together in Melbourne in (omitted) 2005 and separated finally on 23 August 2012 in Queensland.

2. There are two children of the relationship as set out in paragraph 2 above.

3. Since separation the children have lived with the Applicant and spent time with the Respondent.

4. During the relationship the parties purchased two real properties in Queensland: one at Property M, (“The Property M property”) which became the family home, and one at Property B (“the Property B property”) (together referred to as “the Queensland properties”) which was rented out.

5. There is no evidence before the Court as to the purchase prices of those properties, but the parties borrowed about $490,000 against the Property M property and about $180,000 against the Property B property, which was obtained as an interest-only loan.

6. At separation on 23 August 2012 the Applicant left the Property M property with the children and drove back to Melbourne. The Respondent stayed in the Property M property for some time and then left, with the Property M property then being rented out.

7. Both properties were repossessed by the mortgagee as payments on the loans fell into arrears, and the Property M property was recently sold, with the sum of $358,155 being paid into the mortgage on that property on 13 October 2014, leaving a shortfall of $169,467.57 as at 26 October 2014.

8. The Property B property remains on the market. The Applicant says the parties “would be lucky” to realise a sale price of $150,000 for it and the interest-only loan stood at $181,510.46 at 21 October 2014.

9. The Applicant is a trained (occupation omitted) who works full time in the field of (omitted).

10. The Respondent was working in the (omitted) industry on a fly-in-fly-out basis until July 2014. He has been unemployed since then, although the Applicant says that he is attempting to build a career as a (omitted).

Procedural History

1. The Applicant filed her Initiating Application on 20 June 2013, together with an Affidavit and Financial Statement sworn on 19 June 2013.

2. In that Application she sought sole parental responsibility for the children, that they live with her and spend time with their father at a Children’s Contact Centre or by telephone, that he provide random drug tests and that he attend parenting and anger management courses.

3. She also sought orders for the sale of the two Queensland properties with the proceeds being divided 75:25 in her favour, that the Respondent be responsible for the shortfall in the loans, that he return personal belongings to her and the children, and that he pay a Telstra bill in the sum of $769 immediately.

4. She also sought a just and equitable superannuation split.

5. The Respondent’s lawyer a filed a Notice of Address for Service on 25 July 2013.

6. The matter came before Judge Curtain in the Duty List on 5 August 2013. On that day the Respondent made no appearance, although there is a notation on orders made that day that his father had been present in court.

7. Judge Curtain made an order that the Respondent make file and serve a Response, a Statement of Financial Circumstances and Affidavit in support within 28 days.

8. He made further orders for a Conciliation Conference to take place on 25 October 2013 and otherwise adjourned the matter to the Duty List on 4 November 2013 for Directions.

9. On 9 October 2013 the Respondent’s lawyer filed a Notice of Withdrawal.

10. The Conciliation Conference could not proceed on 25 October 2013 because the Respondent did not appear and had filed no material.

11. On 4 November 2013 the matter came before me in the Duty List. Both parties appeared in person on that day and the matter was adjourned to 27 November 2013 for mention. The Respondent was again ordered to file a Response, a Statement of Financial Circumstances and an Affidavit in support within 14 days.

12. A further order was made that if the Respondent failed to file the ordered material, the Applicant would have leave to proceed on an undefended basis.

13. The Respondent filed two documents on 26 November 2013.

14. The first was headed “Mr Bower Response” in handwriting. That document was not a Response, but a paragraph-by-paragraph response to the Applicant’s Affidavit sworn 19 June 2013. His signature was witnessed by a Commissioner for Declarations but the document was unsworn.

15. The second document was an Affidavit, again witnessed by the Commissioner of Declarations but containing no jurat clause.

16. The matter returned to court for a mention on 27 November 2013.

17. On that day the Respondent failed to appear, and orders were made for the rent from the Queensland properties to be applied to the mortgage loans over each property. The matter was then adjourned to 19 December 2013 with a notation that if the Respondent failed to appear at the adjourned date the court would hear the Applicant’s application to sell the Queensland properties on an undefended basis.

18. On 19 December both parties appeared and in addition to interim parenting orders, orders were made for the sale of the Queensland properties with the proceeds to be placed in a joint interest-bearing account in the names of the parties, and for the Respondent to transfer to the Applicant the car that she had been driving since separation but which was then registered in the Respondent’s name.

19. The matter was then set down for a mention on 7 July 2014 with the Respondent having leave to appear by telephone, and for trial on 30 October 2014 with the usual trial directions containing a timetable for the filing of documents.

20. On 7 July the Respondent failed to answer a telephone call from the court, and a call made outside the courtroom, and was registered in the court record as having made no appearance. The matter was adjourned for further mention on 11 July 2014 with the Applicant ordered to provide a copy of the orders at the next changeover, and the Respondent being given leave to appear by telephone if he was in Queensland.

21. Again a notation was added to the orders that the Applicant would have leave to proceed on an undefended basis at the next hearing if there were no appearance by the Respondent.

22. The Respondent did appear on 11 July, filing a Notice of Address for Service, and further interim parenting orders were made. A reminder was placed in those orders in the form of a notation that the matter was listed for trial on 30 October and that all material upon which the parties sought to rely was due 14 days before trial unless the party had leave of the court.

23. The Applicant filed her Trial Affidavit on 16 October 2014 and handed up an Outline of Case Document which the Respondent had seen, at trial. She also handed up an updated Financial Statement sworn on 28 October 2014.

24. On the first day of trial, as the Respondent had never filed a Response, and had failed to file any Financial Statements or properly sworn Affidavit material, the Applicant was given leave to proceed on an undefended basis.

25. I explained to the Respondent that this meant that the Applicant would give evidence and he could cross-examine her on that evidence but that I would not hear any evidence from him.

26. As the Applicant was the only witness, the trial ran for less than half a day and I reserved my decision to today, on what would have been the second day of trial.

27. I note that on the day before trial, I received in chambers information that the Respondent had called the National Enquiry Centre asking for an adjournment of the trial because his mother was in hospital and he needed to be at her side. I was informed that the Respondent would be asked to email my chambers with that request in writing. No such email was received.

28. At trial on 30 October 2014, the Respondent was accompanied to court by his mother, who sat in the body of the court throughout the trial and who appeared to the court to be hale and hearty.

Issues and Evidence

A.Should the children spend two or perhaps three separate weeks with the Respondent during each long summer holiday period, or half of those holidays in one block?

1. In her Outline of Case Document the Applicant sought an order that the children spend time with the Respondent for “week 3 and 5 of the major school holiday break”.

2. The Respondent said he wished for his long summer holiday time with the children to be spent in one three week block, as that would be “fair”.

3. I explained to him that it was not a matter of what was “fair” but of what orders would be in the children’s best interests.

4. When the Respondent asked the Applicant in cross-examination why she wanted to restrict the children’s time with him over the summer holidays to two separate weeks (it was only later that she said she would agree to three separate weeks), the Applicant replied that the children had spent one full week with him in the September-October holidays just a few weeks prior to trial, and that it had been “a disaster”.

5. She said that she had had to take time off work to attend to taking the children to medical appointments and that the children had arrived home exhausted at the end of the week.

6. In her Trial Affidavit, the Applicant had particularised the events of that week as follows:

   ·    X had had suffered a significant injury in an accident at the Respondent’s home and the Respondent had called the Applicant rather than taking X to the doctor himself. After some confusion about where she would pick X up from, and an alarming incident at changeover where the Respondent screamed at Y that if she did not stay with him she would never see him again, the Applicant took X to a medical clinic. After admitting to the doctor that the injury had happened at his father’s home and not at a friend’s home as the father had said, and saying that his father had told him to lie about the incident, X was then referred to the (omitted) Hospital Emergency Department for X-rays and then an MRI. The Applicant deposes that the Respondent sent her text messages throughout the evening saying she had ruined his night.  Luckily X’s wound was not serious although it needed follow-up treatment. The Respondent told the Applicant that he didn’t agree with the follow-up treatment plan although he did ultimately follow it when the children returned to his care later that night.

   ·    The Applicant had called the MRI clinic on the Monday and made an appointment for X to be seen. She told the Respondent of the time of the appointment and that it would cost about $300 out-of-pocket. The Respondent then said he would not be paying for the scan and therefore would not take X to the appointment. The Applicant arranged to take time off work and took X for the MRI scan, paying the $290 fee herself. She then returned X to his father’s care.

   ·    On the Friday of the same week, X had a scheduled orthodontist’s appointment. The orthodontist’s receptionist called at 9:30 am to ask why X had not attended. The Applicant advised that X was in his father’s care and made a further appointment for the same afternoon. As the Respondent was not answering his phone, she left several voice and text messages for him informing him of the new appointment time. He did not take X to the orthodontist that day. When she asked him why he had not done so, he said he had forgotten.  The Applicant again rescheduled the appointment for the following Monday when the children were back in her care, which necessitated them missing out on visiting the Applicant’s aunt in (omitted).

   ·    Being angry about the father’s lack of responsibility, she had suspended his time with the children pending the trial. She deposes that the Respondent made no attempt to see the children in that period but that when she tried to contact him at his mother’s home, his mother abused her quite viciously and told her that she “hopes my children grow up and kill me one day”.

7. At trial, she said that she did not believe that the Respondent was a responsible parent and that she could not trust him to take the children to their appointments. She said that she could not keep taking time off work to perform tasks he should be performing as a parent.

8. I note that at that time, there was an order in place stating:

   Both parties shall ensure that they take the children to any medical and allied appointments and extra-curricular activities in which they are enrolled while the children are in their care.[1]

   [1] Orders of 11 July 2014 paragraph 4.

1. In addition to the medical appointments, the Applicant said in oral evidence that the children arrive home exhausted and that it takes her about a week to get them back to their usual routine when they are with their father for extended periods.

2. She said that the Respondent did not keep to their usual bedtime routine even on weekends, and that as X has been diagnosed as being on the Autism Spectrum, suffering from Asperger’s Syndrome, he especially needs a clear and consistent routine.

3. On the basis of that evidence, which the Respondent could not deny, I find that it is in the children’s best interests for them to spend only two separate weeks of each long summer holiday period with the Respondent.

The Law

1. Section 60CA of the Family Law Act 1975 (“the Act”) is clear that when making a parenting order, as I am required to do in this case, the Court must make the child’s best interests its paramount consideration.

2. Section 60CC sets out the matters the Court must take into account when considering what order will be in the child’s best interests, and I will set out the relevant parts of that section here in full.

   Section 60CC(1)     Subject to subsection (5), in determining what is in the child’s best interests, the Court must consider the matters set out in subsections(2) and (3).

   Primary considerations

   Section 60CC(2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:  Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Section 60CC(2A)  In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).

3. Pursuant to s.60CC(3), the additional considerations the Court must take into account are:

   s.60CC(3)(a): any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;

   Section 60CC(3)(b): the nature of the relationship of the child with:

   (i) Each of the child’s parents; and

   (ii)Other persons (including any grandparent or other relative of the child);.

   Section 60CC(3)(c):    the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major  long-term issues in relation to the child; and

   (ii) to spend time with the child; and

   (iii) to communicate with the child.

   Section 60CC(3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   Section 60CC(3)(e):   the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   Section 60CC(3)(f): the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant;

   Section 60CC(3)(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   Section 60CC(3):(i)    the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

   Section 60CC(3)(j):  any family violence involving the child or a member of the child's family.

   Section 60CC(3) (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the Court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

   Section 60CC(3)(m):  any other fact or circumstance that the Court thinks is relevant.

4. I have considered all these factors, and in the circumstances described in the Applicant’s Affidavit and oral evidence, I cannot find that it is in X and Y’s best interests to spend more than a week at a time with their father given:

   ·    his less than heroic attitude and response to their needs in both financial and personal terms

   ·    the allegations of the Applicant in her original Affidavit material of serious verbal and emotional violence on the part of the Respondent

   ·    the immaturity of the Respondent shown by his cavalier disregard of previous court orders and his behaviour in getting his son to lie about the circumstances of his injury. 

5. There is one more matter needing conclusion in the area of the parenting proceedings.

6. In her Initiating Application, the Applicant sought sole parental responsibility for the children.  However, in the orders she sought in her Outline of Case Document, she is silent on the issue of parental responsibility, and her trial Affidavit does not mention it.

7. Section 61DA of the Act states as follows:

   (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

   Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

   (b) family violence.

   (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

8. In this case the Applicant alleges family violence on the part of the Respondent in the form of verbal, emotional and psychological violence which occurred in the presence of the children. She deposes that he threatened to kill her and to commit suicide, that he screamed at her and the children when angry, and that he damaged property during what can only be described as tantrums.

9. The definition of child abuse in s.4 of the Act includes serious psychological harm suffered by a child as a result of being exposed to family violence.

10. On the evidence of the Applicant, I find that the Respondent committed acts of family violence against her and that the children were exposed to that violence during the relationship.

11. I therefore find that the presumption of equal shared parental responsibility found in s.61DA does not apply in this case.

12. If I am wrong on that point, I find that the presumption is rebutted under s.61DA(4) as it is not in the best interests of the children for the parents to have equal shared responsibility for them. I repeat the matters set out in paragraph 58 as the reasons for that finding.

13. I will therefore make an order that the Applicant have sole parental responsibility for the children.

14. That does not mean that the Respondent is not responsible for their care, and I will make a further order requiring each parent to take the children to medical appointments and other events that are scheduled to occur during their time with the children.

15. The sole parental responsibility order simply means that major decisions in relation to their education, health, religious observance (if any), where they live, and other matters falling under the heading of parental responsibility at law will rest with the Applicant.

16. In circumstances where the Respondent has shown a reluctance to care for the children in a responsible way, and an immature approach to his parental responsibilities in general, he should not be able to hold their mother to ransom in relation to decisions about their overall care welfare and development.

B.Should the shortfall from the sale of two properties in Queensland be apportioned equally between the parties?

1. The Applicant’s evidence is that the Respondent remained in the Property M property after separation and then rented it out. She says that despite the fact that he was receiving rent from both Queensland properties, he did not apply that rent to the mortgages, thus allowing them to fall into arrears to the extent that the mortgagee repossessed the properties and has sold one of them.

2. It was her evidence at trial that during the relationship the mortgages and other bills were kept up to date because she was in charge of the family budget and ensured that all bills were paid. She alleges that the Respondent had serious gambling and drug dependency problems and that it was only when she left and he ought to have taken over that the mortgages began to go into arrears.

3. The Respondent has filed no admissible evidence at all, but he does not deny that he was receiving the rent from the two properties when they were rented out.

4. The Applicant tendered statements from the parties’ home loans that show quite clearly that on 14 August 2013 the balance of the mortgage loan attached to the Property M property was $488,186.12.  At the date of settlement of the sale on 12 October 2014, the mortgage debt stood at $527,298.58. It was on that date that the amount of $358,155.34 was applied to the mortgage from the sale proceeds, leaving a shortfall of $169,467.57 on 26 October 2014 after enforcement costs were subtracted.

5. Those statements show that no payments, other than ones which were dishonoured, were made to that mortgage between 14 August 2013 and the date of the settlement of the sale on 12 October 2014.

6. This is despite an order made on 27 November 2013 that the rent monies received from the two Queensland properties were to be applied to their respective mortgages. It is not disputed that it was the Respondent who received that rent during that period.

7. The tendered bank statements show that the mortgage over the unit stood at $164,038.20 at the time the loan was obtained in early November 2011. Interest payments were made regularly until May 2013 so that at 30 June 2013 the mortgage was $545.20 in arrears and the parties then owed $164,583.40.

8. Interest payments continued to be made, albeit sometimes not in the full amount, until at 31 December 2013 the balance was $167,958.43.

9. From January 2014 the statements showed dishonoured payments, enforcement costs and bank fees and less than full interest payments so that by 30 June 2014 the balance was $173,210.26. The same pattern continues to the present day, with dishonoured payments and enforcement and bank fees meaning that at 21 October 2014, the parties owed the bank $181,510.46 on the unit.

10. The Applicant seeks an order that the shortfalls, adding up to about $347,000, be apportioned so that the Respondent is liable for 80% and she for 20%.

11. The Respondent says the shortfall should be equally borne.

The Law

1. The first thing I must do in order to decide this issue is determine what the current interests of the parties are in property (which includes debts) and then decide whether it is just and equitable in all the circumstances to alter those interests.

2. If I find that it is so just and equitable, then I must look at the contributions each of the parties has made to the property (or the debt).

3. That much is set out in s.90SM of the Act, which governs property settlements between de facto couples.

4. In this case, the property of the parties is essentially the debt owed to the bank from the shortfall in the mortgages, and the value of items the Respondent is said to have disposed of after separation.

5. Currently the debt is legally owed by the parties jointly and severally and I will deal with the items shortly.

6. As I have already set out, the Respondent received the rent from the unit and then from the Property M property as well. He was working at the time, but still allowed the properties to fall into considerable arrears, indeed so much so that the bank has foreclosed on both mortgages.

7. The evidence that the mortgages were up to date while the Applicant was responsible for making the payments and then fell into arrears when that responsibility passed to the Respondent is persuasive in laying much of the blame for the parlous situation the parties find themselves in at the feet of the Respondent.

8. I find that almost all the responsibility for the level of that debt and the foreclosure on the mortgages is his, and therefore that it is just and equitable in all the circumstances to alter the property interests of the parties in that debt.

9. I will quantify the Respondent’s responsibility at 75%. That is, he will be liable for 75% of the debt and the Applicant for 25%.

C.Should the Respondent pay the Applicant a sum for half the value of items she says were in one of the Queensland properties at the date of separation?

1. The Applicant tendered a list of items which she says were in the Property M property at the time of separation, but which were missing when a friend of hers came to collect her belongings after separation. She says that the Respondent has either sold or otherwise disposed of those items and therefore he should compensate her for their value.

2. That list is long and particularised, and she values the items at a total of $49,020. However, under cross-examination, she conceded that some of them were valued at new or near-new valuations and that all were estimates she had made based on the purchase prices.

3. There is no evidence to say what has happened to those items and I can only find that the Respondent has had the benefit of them since separation, either through their continued use, or through their sale or disposal.

4. In those circumstances I find that he should compensate the Applicant for some of their value, taking into account what evidence there is about the contributions of the parties to the property of the relationship in general.

5. The valuation of those items is a slightly more difficult matter, but I find that overall, where some items have been valued at new replacement value and some at second-hand value, they are worth about $35,000.

6. When I consider all the matters set out in s.90SM(4) of the Act, including those found in s.90SF(3), I find that it is just and equitable that the Respondent reimburse the Applicant for 65% of that amount, or $22,750.

Conclusion

1. This has been in many ways a very sad case.

2. The Respondent’s lack of attention to the proceedings and to putting his case before the court has no doubt placed him in a worse position than if he had been diligent in taking note of what was said to him in interim hearings about what he needed to do.

3. But it has been his refusal or inability to agree to any process by which the Queensland properties might have been saved from the mortgagee’s foreclosure that has really caused him detriment.

4. The Applicant impressed throughout the proceedings as a decent and intelligent woman who was trying desperately to salvage what she could from the relationship in terms of minimising the fallout from the Respondent’s failure to pay the mortgages, and to protect her children from their father’s irresponsible behaviour.

5. The Respondent impressed throughout the proceedings as a rather arrogant and insolent man who did not believe that he needed to comply with court orders or compromise in any way in relation to the care of his children.

6. He appears to wish to make life as difficult as possible for their mother and to deny responsibility for any of his behaviour either during or after the relationship.

7. It is to be hoped for the children’s sake that he can gain some maturity and skills that will allow him to take his parental and financial responsibilities more seriously in future.

8. Only then can he truly say that he is a real father to his children.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Small

Date:  31 October 2014