Duclos & Duclos
[2024] FedCFamC2F 1899
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Duclos & Duclos [2024] FedCFamC2F 1899
File number(s): MLC 11883 of 2017 Judgment of: JUDGE BENDER Date of judgment: 11 December 2024 Catchwords: FAMILY LAW – PARENTING – The Mother did not appear at the Final Hearing and the Father sought leave to proceed on an undefended basis – Father sought orders he have sole decision making for the parties’ two children, a daughter 12 years of age and a son 10 years of age, the children live with the Father and spend supervised time with the Mother as determined by the Father.
FAMILY LAW – HELD – Father have leave to seek orders on an undefended basis – orders made in the terms sought by the Father.
FAMILY LAW – PROPERTY – The Wife did not appear at the Final Hearing and the Husband sought leave to proceed on an undefended basis –Parties had previously reached a private agreement as to property that was partially executed – the Husband is seeking the agreement reached be formalised, such that the former matrimonial home be sold, the proceeds of sale from be used to pay the associated costs of sale, discharge the mortgage and the balance to be paid to the Wife – The Husband also sought orders the Wife transfer monies held in the children’s account to new accounts opened by the Husband to be held on trust for the children.
FAMILY LAW – HELD – Husband have leave to seek orders on an undefended basis – orders made in the terms sought by the Husband.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(2)(a) – (f), 75(2), 79(2), 79(4) Cases: Stanford & Stanford [2012] HCA 52 Division: Division 2 Family Law Number of paragraphs: 48 Date of hearing: 11 December 2024 Place: Melbourne Solicitor for the Applicant: Ms Keane of Keane Family Law Solicitor for the Respondent: No appearance Solicitor for the Independent Children’s Lawyer: Ms Perisic of Perisic Lawyers ORDERS
MLC 11883 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DUCLOS
ApplicantAND MS DUCLOS
RespondentINDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.All previous Orders be and are hereby discharged.
2.All extant applications are dismissed.
3.The Father have leave to proceed on an undefended basis.
Parenting
4.The Father have sole decision-making authority for X born in 2012 (“X”) and Y born in 2014 (“Y”).
5.The Father will keep the Mother informed regarding all major long-term decisions that he makes concerning the Children by notifying the Mother in writing within 48 hours of a decision being made by email to …@... or such other email as nominated by the Mother in writing.
6.X and Y live with the Father.
7.X and Y spend supervised time with the Mother at such times and on such conditions as agreed to by the Father.
Property
8.The Applicant remain the sole and beneficial owner of the real property known as and situate at D Street, Town E in the State of Victoria and more particularly described as Certificate of Title Volume … Folio … (“the D Street Property”) and any nett proceeds from the sale of the D Street Property.
9.By 22 January 2025, the parties must do all acts and sign all documents necessary to sell the real property known as F Street, Town E in the State of Victoria and more particularly described as Certificate of Title Volume … Folio … (“the F Street Property”) with the following conditions applying:
(a)B Company agents to be appointed as selling agent, or such other agent as agreed to in writing by the Applicant and Respondent;
(b)The conveyancer for the sale be as nominated by the Applicant;
(c)The F Street Property be listed for sale by way of public auction or private treaty as determined by the Applicant and Respondent, and if no agreement then on the recommendation of the selling agent;
(d)The reserve/sale price be fixed in consultation with the selling agent;
(e)The house be sold with vacant possession
(f)The proceeds of sale be paid in the following manner and priority;
(i)To pay the agents costs and commission and the conveyancing costs of the sale and any land tax, rates and other outgoings relating to the F Street Property;
(ii)To pay any costs associated with preparing the house for sale and settlement;
(iii)To reimburse the Applicant for any land tax paid by him in relation to the F Street Property;
(iv)To reimburse the Applicant for any costs incurred by him from the date of these Orders towards the preparation of the house for sale, mortgage repayments, insurance or other outgoings and all PEXA and conveyancing related costs incurred by him;
(v)To discharge the mortgage to Australia and New Zealand Banking Group Ltd registered as dealing number …
(vi)The amount of $720 to be deposited into an account held in the Father’s name on trust for X
(vii)The amount of $650 to be deposited into an account held in the Father’s name on trust for Y
(viii)The balance to the Respondent.
10.The Respondent must vacate the F Street Property on or before 8 January 2025 becoming operative and must arrange, at the Respondent’s cost for all keys to the property to be delivered to a real estate agent of the Applicant’s choosing and must leave the F Street Property in a clean and well maintained condition with all furniture and effects removed and thereafter is restrained by injunction from attending the F Street Property except at such dates and times and under such conditions as agreed to by the Applicant in writing.
11.The Applicant is permitted to dispose of any items remaining in the F Street Property after the 14 days has passed since the Respondent vacated the F Street Property as the Applicant deems appropriate and the Respondent is not entitled to any compensation for the replacement of any items located within the F Street Property disposed of by the Applicant.
12.Pending completion of the sale of the F Street Property, the Respondent must pay all mortgage repayments, including arrears, Council rates, including any arrears, insurance and all other outgoings associated with the F Street property as and when they fall due and must pay any arrears by 18 December 2024.
13.In the event that the mortgagee takes possession of the F Street Property and completes a mortgagee in possession sale then:
(a)The parties must do all acts and things necessary to facilitate the mortgagee in possession sale: and
(b)the nett sale proceeds are to be disbursed in accordance with Order 9(f).
14.By 2 January 2025, the parties must do all acts and things and sign all documents necessary to transfer any balance held in X and Y’s ANZ accounts numbered …86 and …18 to X and Y’s new bank accounts as set up by the Father in his name on trust for X and Y and the accounts closed.
15.That, subject to these Orders
(a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders including any jewellery, furniture, furnishings, shares and motor vehicles.
(b)Moneys standing to the credit of the parties in any bank accounts shall be the property of the party in whose name such bank account is held.
(c)Each party hereby foregoes any claims they may have to any superannuation benefit owned by the other. The party in whose name any such policy of superannuation or insurance stands shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
(d)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 this Order.
16.Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these Orders within 14 days of being requested to do so.
17.If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so, then the Registrar of the Melbourne Registry of the Federal Circuit and Family Court of Australia is hereby appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a Solicitor on behalf of the requesting party as to the said neglect or refusal.
18.The requesting party be at liberty to apply for costs when submitting such an affidavit to the Registrar.
AND THE COURT NOTES THAT:
A.Pursuant to rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Court may vary or set aside a judgment or order made in the absence of a party.
B.The Father and X and Y are relocating to City C after mid-December 2024 and Orders made 25 September 2024 permit this relocation to occur.
C.At the time of the Hearing on 11 December 2024, being the seventh hearing in these proceedings, the Mother has not complied with any Orders of this Court and has not filed any documents in these proceedings.
D.The Respondent is in default of the mortgage for the F Street Property and has failed to comply with Orders made on 25 September 2024 including to pay the arrears of the mortgage and meet the ongoing mortgage and other costs, for the refinance of the ANZ mortgage into her sole name and transfer of the F Street Property.
E.The mortgagee for the F Street Property, ANZ Bank, through their legal representatives, commenced proceedings in the Supreme Court of Victoria and obtained default judgment in late 2024. It is likely that the F Street Property will be disposed of by way of a mortgagee in possession sale.
F.Pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)
JUDGE BENDER
Introduction
This is a financial and parenting matter that is before the Court today for hearing.
The parties in this matter are the parents of X born in 2012 (“X”) who is 12 years of age and Y born in 2014 (“Y”) who is 10 years of age. X and Y identify as Aboriginal through the Mother.
The parties separated on a final basis on 21 August 2016 and were divorced in 2018. Following separation, the parties made informal arrangements as to parenting and the division of property.
The Father filed an Application for Final Orders in this Court on 9 November 2023 seeking both parenting and property orders.
The Mother has not appeared today despite being given every opportunity to participate in these proceedings. The Court has made orders that she address issues of concern to enable her to have an ongoing relationship with X and Y, such as her drug and alcohol use, however she has been unable to do so.
X and Y have been in the care of the Father since early 2024 following the Mother’s involvement with the Police and the Department of Fairness Families and Housing (“the Department”) making a Protection Application in the Children’s Court.
The Children’s Court made an Interim Accommodation order in the Mother’s absence that X and Y live with the Father and spend supervised time with the Mother.
The matter came before this Court for interim hearing on 18 April 2024, on which date similar orders were made for X and Y to live with the Father, and for supervised time with the Mother, subject to the supervisor signing an undertaking as prepared by the Independent Children’s Lawyer.
Following these orders, the Children’s Court matters were discontinued as Child Protection were satisfied that this Court was the appropriate forum to resolve parenting matters.
The Mother has failed to appear in proceedings on a number of occasions and has not undertaken the required drug and alcohol screens, pursuant to Orders made on 18 December 2023 and 18 April 2024.
The Mother did not appear at the Compliance and Readiness Hearing on 30 July 2024 and the matter was listed for possible undefended hearing before me on 25 September 2024.
On 25 September 2024, the Mother appeared very late to the hearing and the Court afforded her a final opportunity to demonstrate that she was prepared to do what was necessary to enable her to participate in both parenting and property matters.
On this occasion, orders were made that gave the Father leave to move to City C, which he needs to do to complete his studies. I also made orders in relation to the Father being able to enrol them in schools in City C.
There were also orders made for the Mother to have some supervised time with X and Y which has not occurred. Unfortunately, it would appear that the Mother has not been able to address the factors in her life that are preventing her from engaging in these proceedings.
Both the Father's solicitors and the Independent Children's Lawyer have actively tried to engage the Mother since the matter was last in Court in September, but this has been to no avail. It is the Father’s evidence that the Mother continues to face issues in relation to her mental health and drug use and that the Mother has been involved in criminal matters. I am satisfied that the Mother has been given every opportunity to engage in proceedings and it is time for this matter to be finalised and for the Father, X and Y to be able to move on with their new lives in City C.
THE LAW
PARENTING MATTERS
When the Court makes a parenting order the Family Law Act 1975 (“the Act”) provides under s.60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out how a Court is to determine what is in a child’s best interests. It requires the Court to consider all the matters set out under subsection 60CC(2) in its considerations as to what orders are, in this case, in X and Y’s best interests.
Section 60CC(2)(a) what arrangements would promote the safety (including safety from being subject to or exposed to family violence, abuse, neglect or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child)
This is perhaps the most relevant consideration that the Court must have when making any orders to ensure the safety of X and Y.
The truth of the matter is because of the Mother's issues with illicit substances, her mental health and, unfortunately, criminal behaviours, I cannot be satisfied that it is safe for her to spend time with X and Y, which is sad because I am in no doubt she loves her children and they love her.
Despite the opportunities afforded by this Court and despite everyone's best efforts to help her to do so, she has been unable to satisfy the Court that X and Y would be safe in her care without orders for supervision.
In his proposed orders, the Father provides an avenue for the Mother to spend time with X and Y. If the Father can be satisfied that X and Y would be safe having supervised time with the Mother, I am satisfied he would ensure they do so.
Section 60CC(2)(b): any views expressed by the child
X is twelve years of age. In the Family Report of Ms G dated 2 September 2024, X expressed in her interview with Ms G a desire to live “50/50 between both parents and swap on Mondays”.
Y told Ms G in his interview that he would like to see his Mother but “would feel better if someone else was there watching them”.
X and Y clearly love the Mother very much and wish to spend time with her. Sadly the reality of this matter is that time with the Mother comes with a serious level of risk. X and Y’s desire to spend time with the Mother cannot be what determines the outcome of this matter.
Section 60CC(2)(c): the developmental, psychological, emotional and cultural needs of the child
Ms G describes X and Y as “happy, friendly and polite children, who appeared settled in the care of their father”. I am satisfied that X and Y’s emotional and psychological needs are being met by the Father.
Section 60CC(2)(d): the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
As has been stated, I am more than satisfied that the Father is very capable of doing what is required under s.60CC(2)(d).
Unfortunately, I cannot say the same about the Mother. The Mother has been unable to satisfy the Court, the Father or the Department that she has addressed her issues to an extent that would ensure she has capacity to care for X and Y.
Section 60CC(2)(e): the benefit of the child of being able to have a relationship with both of the child’s parents and other people who are significant to the child, where it is safe to do so
The unfortunate reality is that it is just not safe for X and Y to have a relationship with the Mother at this time. I have already mentioned that there is the possibility in the future for her to do so if the Father determines it would be safe and appropriate.
Section 60CC(2)(f): anything else that is relevant to the particular circumstances of the child
The Independent Children’s Lawyer is in agreement that the orders proposed by the Father are the orders the Court should make today as they are of the belief such orders are those that are in X and Y’s best interests.
CONCLUSION
The Father is seeking orders that confirm the arrangements that have been in place since X and Y came into his full time care earlier this year, which are that X and Y live with him, he have sole decision-making authority and time with the Mother will be supervised on such conditions as determined by the Father. I do not believe any further orders are necessary in that regard and am satisfied that these orders are in the best interests of X and Y.
PROPERTY MATTERS
The Husband seeks orders that reflect an agreement reached by the parties in May 2017 following their separation. On his evidence, both parties had the benefit of legal advice and entered into an informal agreement that equated to a split of the pool of approximately 53% to the Wife and 47% to the Husband.
Pursuant to that agreement, the Wife retained the former matrimonial home at F Street, Town E (“the former matrimonial home”) and was to refinance the mortgage into her sole name. The Husband deposes that although she did not do so, this was not an issue until mid-2023 as the Wife was meeting the expenses and mortgage repayments.
In late 2019, the Husband purchased his current home at D Street, Town E (“the D Street property”). The Husband was unable to obtain a mortgage to purchase the D Street property as the Wife had not refinanced the mortgage in the former matrimonial home into her sole name. The Husband had to borrow funds from his parents to purchase the D Street property.
The Wife has not made any mortgage repayments on the former matrimonial home since July 2023 and the mortgage is now in default. The bank has issued a default notice and a writ in the Supreme Court of Victoria.
The Husband’s proposed set of orders put in place the process for the sale of the former matrimonial home and what is to happen in relation to the proceeds of sale. Whilst those orders are the ones that I will make, I am advised that the mortgagee intends to obtain a writ of possession and then conduct a mortgagee sale.
THE LAW
Section 79 of the Act defines the Court’s powers to determine an application for property settlement after marriage.
Section 79(2) of the Act provides that
The 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) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the parties’ interest in property. Section 79(4) states:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last - mentioned property, whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last - mentioned property, whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under section 75(2) of the Act are as follows:
(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The High Court in the matter of Stanford & Stanford [2012] HCA 52 (“Stanford”) held that prior to making orders that adjust any interest in the property in which the parties have an equitable interest in accordance with the provisions of the Act, the Court must first determine that it is just and equitable to make such orders. The High Court stated:
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
Having determined the parties’ equitable property interests, the High Court in Stanford held that prior to making orders that adjust any interest in property in which parties have an equitable interest in accordance with the provisions in the Act, the Court must first determine that it is just and equitable to make such an order.
The High Court in Stanford held that in the majority of matters, the decision as to whether to make orders adjusting the parties’ property interest is resolved by the breakdown of the parties’ relationship and the mutual desire of both parties for orders altering their respective property interests.
The Act therefore requires me to be satisfied that it is just and equitable that orders be made. The Husband is unable to move on with his own financial affairs because he is on the mortgage that is in arrears. It is time that the parties' equitable property interests are adjusted and therefore I am satisfied it is appropriate I should be making orders.
Having already determined that it is just and equitable to make orders in this matter, the next step is for me to decide what is the just and equitable outcome for the division of the parties' property.
As I noted, the parties very sensibly sorted things out between themselves, seven years ago, dividing their property on a 53/47 basis.
The parties now each own real estate in Town E of not dissimilar value, albeit there is no formal valuation evidence before the Court. Both properties are being sold, the Husband’s because he is moving to City C and the Wife’s because of a mortgagee sale. The Husband’s proposed orders provide that he retain the proceeds of his D Street property and the Wife retain the proceeds of sale of the former matrimonial home.
If on sale of the two properties, the Husband were to receive an amount greater than the Wife, this would be acceptable given the Husband now has the responsibility of the full-time care of X and Y and any decrease in the equity of the former matrimonial home reflects the Wife’s failure to maintain that property and her non-payment of the mortgage and other outgoings.
In the circumstances, I am more than comfortable that the orders proposed by the Husband are just and equitable and I intend to pronounce them on a final basis.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Bender. Associate:
Dated: 11 December 2024
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