EVANS & BARNES

[2011] FamCA 453

FAMILY COURT OF AUSTRALIA

EVANS & BARNES [2011] FamCA 453

FAMILY LAW – PROPERTY SETTLEMENT - Contributions

Family Law Act 1975 (Cth)

APPLICANT: Ms Evans

RESPONDENT: Mr Barnes

FILE NUMBER: MLC 10206 of 2010

DATE DELIVERED: 29 April 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bristow

SOLICITOR FOR THE APPLICANT: Kliger Partners

THE RESPONDENT: No appearance

Orders

1. That the applicant wife have leave to proceed against the husband on an undefended basis.

2. That each party retain the assets in their respective possession as at the date of these orders and the other party relinquish any interest therein.

3. That the husband pay the wife’s costs fixed in the sum of $2360 within 14 days of this date.

4. That the application of the wife filed 15 April 2011 is otherwise dismissed.

5. That the reasons be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10206 of 2010

Ms Evans

Applicant

And

Mr Barnes

Respondent

REASONS FOR JUDGMENT

1. This is an application brought by Ms Evans against her former husband Mr Barnes.  For the purposes of these reasons I shall refer the parties as husband and wife, notwithstanding they were divorced by an order of the Federal Magistrates Court of Australia in January 2011.  Mr Barnes, the husband, has not attended today.  He was called at 20 past 10 and there was no appearance.  In addition, notwithstanding the matter has been before the Court on two prior occasions, the husband has not filed any documents at all. 

2. I am satisfied, having regard to all of the evidence I have heard and the documents that I have read, that it is appropriate to give leave to the wife to proceed with her application on an undefended basis.  Having regard to what I have just said about the husband, there can be little doubt that he is aware of the proceedings on the basis that the wife has given evidence that she has spoken to him on at least two occasions, the last of which was today.  The wife said that the husband doesn’t really have an objection to the orders that she is seeking but just “can’t face the paperwork.” 

3. Sad though it may be, the Court cannot allow people to simply shrug their shoulders at these sorts of proceedings.  They are serious matters and they require attention. 

4. I am satisfied in the circumstances, therefore, that no injustice is done to the husband by allowing the wife to proceed on the limited evidence that is before the Court. 

5. The parties married in July 2005 and separated in February 2009.  Their relationship is of some three and a half years duration.  There are no children of the relationship.  The husband is a 55 year old engaged in the information technology field who appears, on the best evidence that I have, to be self employed but he does not appear to be doing that terribly successfully.  The wife is a 48 year old employed in the education field who earns around $50,000 per year.  Her evidence is that both parties enjoy good health.  Neither party would appear to have re-partnered in the sense that there is any financial support provided to or provided by any other person.

6. In terms of the background of the matter the evidence is undisputed by the husband. 

7. At the commencement of the relationship the wife came into it with a property at P Street, Melbourne Suburb 1, which became the matrimonial home and she had a motor vehicle, some house contents, some superannuation and some savings.  Without being unkind, it would be fair to say that the husband had next to nothing.  He had some very modest motor vehicles and some furniture and equipment and a very small amount of savings in superannuation.  Although it is not a mathematical exercise that I am required to undertake, it is clear that on a percentage basis it can be seen that the numbers favour the wife substantially. 

8. Ironically, at the end of the relationship some three and a half years or so later little appeared to have changed.  Certainly, the amount in the bank in the wife’s name had gone up and her superannuation had increased but it would appear that the husband had done substantially better out of the relationship.  If I was to look at the matter in terms of percentages it would appear that the husband brought in about 10 to 15 per cent and the wife the balance and some three and a half years later only by dint of the increase in the value of the real property and her superannuation, what each party ultimately now has equally reflects about 10 to 15 per cent in the hands of the husband and the balance to the wife. 

9. Section 79 of the Family Law Act 1975 (Cth) (“the Act”) requires the Court to consider the contributions made by the parties, both of a financial and the non-financial nature towards the acquisition, conservation and improvement of the property of either of them as well as their respective efforts during the marriage. This is not a conduct exercise but rather to look at how the parties ultimately got what they now have and what they did to achieve that. There can be no doubt in this case that in terms of the financial arrangements the wife has been the major provider. She gave evidence that during the relationship she continued to earn and support the husband, including putting money into a business that he was conducting that does not appear to have been at all successful.

10. The husband’s contribution from an income sense has been, at best, modest.  On any view one could say that the wife’s contribution was overwhelmingly greater than that of the husband. 

11. Looking at the evidence as well which is uncontested, the wife said that she was the primary homemaker and she carried out the household duties such as cooking, cleaning, washing and other matters.  The husband is not here to dispute that and she also said that he did very little in terms of any household chores.  I am satisfied in those circumstances that her non-financial contribution, equally like the financial contribution, is much greater than that of the husband. 

12. It is not essential that the contributions be assessed in terms of percentages but in this case it seems abundantly clear that the contributions favour the wife at least as to 85 per cent. That does not necessarily mean that the outcome should reflect those percentages. I am obliged by section 79 to look at the provisions of section 75(2). The evidence I have, as I have already indicated about the parties’ personal situations, takes the matter no further. There are apparently no indications as to what the husband is currently earning, but I find that he has done much better out of the relationship over a very short space of time than what he contributed at the start. It seems to me that there are no financial matters that I should be troubled about for his future.

13. The process of determining a property settlement between the parties is a four step process. I have assessed the pool of assets as basically the home in Melbourne Suburb 1 which is now in the control of the wife, her motor car and some savings and a bit of superannuation. The husband, as best the wife can determine, had a self-managed superannuation fund and considerable sums of money in the bank and he also had a tax office cheque provided to him. The second step is to assess the contributions and I have done that. I have looked at the third step which is the matters under section 75 subsection (2). The fourth and final step is to decide what is an appropriate outcome having regard to all of those matters to ensure, for the purposes of section 79 subsection (2), that the outcome is a just and equitable one for both parties.

14. I am satisfied in the circumstances that what the wife is seeking, which is effectively that assets remain where they currently lie, accurately reflects not only the greater contribution by the wife but also the fact that there is very little difference between the financial circumstances of the parties for the future.  I am satisfied in the circumstances that those orders are just and equitable. 

15. In the amended application that the wife also filed and which I am satisfied was brought to the attention of the husband, she also sought costs.  Those costs are reflected in three particular areas. 

16. The first relates to an order that Registrar Marrone made on 22 February in the sum of $500.  That order was reserved to the next hearing date which was the first day that the matter came before me.  The husband, having failed to attend on the second occasion, and, more importantly, failed to comply with the Registrar’s orders to file material, he can hardly be said to have assisted the wife’s cause in endeavouring to resolve the matters.  It seems in the circumstances that the order that the Registrar reserved was an appropriate one.  But it is now time for the husband to face the fact that he has put the wife to that sort of trouble. 

17. The second appearance was on 24 March and on that occasion I fixed and reserved the wife’s costs of $660. The same principles that I have just espoused apply. Section 117 of the Act says that in proceedings in this Court each party shall bear their own costs unless the Court is satisfied that there are circumstances that justify departure from that principle. I cannot think of a more appropriate case to depart from the principle where somebody refuses or fails to participate in proceedings which would have eliminated the prospect of the wife having to go through what she has had to go through to retain the assets that I have found to have justifiably been hers anyway.

18. In those circumstances it seems appropriate that the principle that each party pay their costs be departed from. The Act requires that the Court consider the financial circumstances of the both of the parties. I have already set out what the husband would be receiving pursuant to an order of the Court by keeping the assets that he has or had and, therefore, I am satisfied that there are no circumstances of impecuniosity. I am also satisfied the husband has not contributed to the process and has failed to comply with the various orders that I made on 24 March and those of the Registrar on 22 February.

19. In those circumstances it is appropriate there be an order for costs as well.  I do not propose to make three separate orders for costs but rather to fix one.  And on that basis and the reserved costs of 22 February and 24 March will be rolled up into the order that I propose to make today. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 April 2011.

Associate: 

Date:  15 June 2011