FALLON and FALLON

[2010] FCWA 116

[2010] FCWA 116

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	FALLON and FALLON [2010] FCWA 116
CORAM	:	CRISFORD J
HEARD	:	22 NOVEMBER 2010
PUBLISHED	:	24 NOVEMBER 2010
FILE NO/S	:	PTW 4169 of 2006
BETWEEN	:	FALLON Applicant/Wife
AND
FALLON Respondent/Husband
Catchwords:

Property settlement - undefended hearing - s 79 exercise

Legislation:

Family Law Act 1975

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr S French
Respondent	:	Self Represented Litigant

[2010] FCWA 116

Solicitors:

Applicant	:	Dwyer Durack
Respondent	:	Self Reprsented Litigant

Case(s) referred to in judgment(s):

Nil

[2010] FCWA 116

1 I am asked to determine an application for property settlement filed by the wife,

[Mrs Fallon], on 19 March 2010. Her husband, [Mr Fallon], has played no part in the
proceedings.

Background to proceedings

2 The wife first commenced court proceedings on 26 July 2006. On that occasion

she was also seeking to resolve financial matters with her husband. Her application
was discontinued on 7 September 2006.

3 The parties have now finally separated. After the wife filed her initiating

application she had a process server, [Mr F], attend the parties’ home at [the suburban address] in order to serve the husband. The parties were then living under the same roof. On becoming aware of the reason for Mr F’s attendance the husband locked himself in his bedroom and refused to receive the initiating Court documents. The process server placed the papers by the bedroom door. The husband did not leave the bedroom for some time and when he did the papers remained on the floor.

4 On 17 April 2010 the husband telephoned the wife from [overseas] advising he

was now residing there. Apart from a short visit in October 2010 the husband has
continued to live overseas.

5 On his brief return visit in October 2010 the husband resumed living in the

former matrimonial home. The wife had some discussions with him at that stage and provided him with a copy of the Court Order of 8 October 2010 with the date of the final hearing on it. The husband indicated to her he would play no part in the trial. He returned overseas on 25 October 2010.

6 Orders made on 28 April 2010 by a Registrar of this Court enabled service of

Court documents to be facilitated by email communication to an overseas address. As a result of his continuing failure to take part in the proceedings an order was made on 27 May 2010 enabling the wife to proceed on an undefended basis.

7 The matter was dealt with in that manner on 22 November 2010. The wife gave evidence at the hearing. She also sought to rely on the following documents:

1. Her trial affidavit filed 4 October 2010.

2. Notice to Admit facts filed on 17 September 2010 (as to values).

3. Her financial statement filed on 19 March 2010.

4. Papers for the Judge filed 17 September 2010.

5. Various affidavits relating to proof of service.

8 The wife is seeking that the parties’ assets be divided 70/30 in her favour. She is seeking that the former matrimonial home be placed on the market for sale.

[2010] FCWA 116

Background of the parties

9 The wife was born [in] July 1963 and is 46 years of age. She is of [foreign]

descent. The husband is also [foreign] and was born [in] 28 February 1964. He is
aged 45 years. The parties have known each other since they were children overseas.

10 The wife migrated to Australia with her family in 1975, as did the husband. Both parties are now Australian citizens.

11 The parties were married in [Perth] in March 1985 and commenced cohabitation

thereafter. They separated for a brief period in 2006 but final separation took place on
10 November 2009.

12 There is one child of the marriage, [Carol Fallon], who is 22 years of age. She was born in January 1988.

The Applicable Law

13 Property proceedings are governed by s 79 of the Family Law Act 1975 (Cth). The determination of an application pursuant to this section involves a four step process which can be summarised as follows:

• To ascertain and value and the property of the parties;

• To determine the contributions made by each of the parties to that property;

• To consider the other factors set out in s 79(4) and s 75(2) of the Act which included the parties’ future needs, income earning capacities, responsibilities and resources; and

• To finally reach a decision that is just and equitable in the circumstances.

Assets and Liabilities

14 I now turn to consider the parties’ assets and liabilities and which are available

for division between them. The wife filed and served a Notice to Admit Facts on 17 September 2010. There was no responding notice and I accept the values set out in that schedule, save for any updating evidence at the trial. I find the assets and liabilities to be as follows:

Assets Ownership Value

$

[The matrimonial home]	Joint	510,000
[Savings account]	Wife	190
2004 [Mitsubishi]	Wife	9,000

[2010] FCWA 116

1996 [Ford]	Husband	1,500
Household contents	Wife	15,000
Jewellery	Wife	1,000
Superannuation Assets	Wife	50,000

586,690

Liabilities

[Bank mortgage]	Wife	152,000
BankWest loan	Wife	9,000

161,000

Total Net Assets	425,690
Contributions

15 Neither party had any assets of significance when they married. The wife was working as a receptionist and the husband as a labourer.

16 Throughout the relationship the husband was employed as an unskilled labourer

until 1994 when he suffered a lower back injury. The husband received a compensation payment in 1998 of $110,000. He thereafter qualified for a disability pension.

17 Since 1994 the husband has been severely hampered in his ability to obtain

employment. He has only worked for a period of 14 months between mid 2007 and late 2008 as a drive-in attendant at a bottle shop [in the suburbs]. The wife worked until the birth of the parties’ child in 1988. Thereafter she cared for the child on a fulltime basis for six years. Between 1994 and 2008 she was employed [by a Building Society], initially on a part-time basis and then commencing fulltime employment in 1995.

18 In 2008 the wife was made redundant by the [Building Society] and and received

a payout of $62,000. After her redundancy she did not work for six months. She then
commenced employment with [a company] as an [administration assistant].

19 The parties purchased a home on 28 June 1999 at [a suburban address] for

$160,000. A deposit was made utilising the husband’s compensation payment received the year before. The balance was borrowed from the State West Credit Society.

[2010] FCWA 116

20 The wife has been solely responsible for the mortgage repayments and also used some of her redundancy to reduce the mortgage.

21 Both parties contributed in their role as a parent. Although the wife claims she

did more of the housework, I note the husband was home during the early years of
their child’s schooling whilst the wife worked full-time.

22 This was a long marriage. It spanned almost 25 years. On reading the wife’s

affidavit material I am satisfied that they each had a role to play in the acquisition and
maintenance of their present assets, albeit in different ways.

23 The parties were able to purchase the former matrimonial home utilising the

husband’s lump sum compensation payment. Since his injury the wife has been the main financial provider for the family. She has made all the contributions in this regard since separation.

24 She has been solely responsible for the mortgage repayments which total

approximately $950 each calendar month. She has remained in the home for the entire
period.

25 While I consider the contributions during the marriage are likely to have been

equal I am satisfied that since separation the wife has made a greater contribution. On
this basis an adjustment of 5% should be made in her favour.

Section 75(2) factors

26 The wife is seeking an adjustment of 10% in her favour.

27 The wife is aged 46 and is in good health. The husband is aged 45 and he has

historically had lower back problems. This has prevented him working. The wife continues to be employed as an administration assistant. She earns approximately $53,000 a year. The husband is currently unemployed.

28 The wife provides financial assistance to the parties’ adult child while she

completes her tertiary qualifications. It is anticipated that this will continue for
another year or so.

29 It is likely the husband will continue to reside overseas. The wife says his cost of living will be less than hers in Australia.

30 I consider that the wife’s continuing obligation to assist the parties’ daughter warrants a further adjustment of 2.5%.

Just and Equitable

31 The wife is seeking the former matrimonial home be sold. On the basis of the

figures provided it is likely that the overall outcome will be the wife will receive approximately $244,772 from the asset pool and the husband $180,918. The wife has assets of $75,190 excluding the home. $50,000 of that is a superannuation

[2010] FCWA 116

entitlement. The husband has $1,500 worth of assets. She will receive about $170,000 less fees from the home. The husband will receive about $179,418 less fees.

32 The wife says anticipated agent’s commission and sale will be some $19,000. Her assets, apart from her entitlement from the house sale, are modest. The husband now lives or spends his time overseas. I do not know his circumstances there.

33 The pool of assets is not large. By selling the matrimonial home neither party is

going to be left with anything other than a modest amount to recommence their lives separately. I intend that the wife’s loan in an amount of $9,000 be paid from the proceeds of sale of the home prior to any disbursement. The order I made, separately, for costs is to be paid from the husband’s share prior to disbursement to him.

34 I am satisfied that the orders I intend to make are just and equitable.

Orders
35	I intend to make the orders sought by the wife with some adjustments.

36 I have made an order restraining the husband from returning to the former

matrimonial home. Although the home is to be placed on the market for sale forthwith there can be no certainty when its actual sale will be. The husband and wife lived separately under one roof for a period before the husband went overseas. When he returned recently he again resided in the former matrimonial home. Now the property settlement has been finalised I do not consider it appropriate that he be able to return again. The wife has been solely responsible for its upkeep and maintenance both financially and non-financially since he left for overseas.

37 In my view she is entitled to live there without interference.

I will make the following orders:

1 The parties forthwith do all acts and sign all documents necessary to effect a sale of the home at [the suburban address] in the State of Western Australia, being more particularly described in Certificate of Title Volume xxxx Folio xxxx (“the home”) with the Applicant, Mrs Fallon being appointed sole trustee for the sale of the property.

2 Upon sale of the home, the parties do all things necessary to effect a distribution of the proceeds of sale of the home in payment of:

(a)	agent’s commission and reasonable expenses of sale;
(b)	the amount required to discharge the mortgage in favour of State West Credit Society registered against the Title to the home;
(c)	adjustment of rates, taxes and other outgoings;
(d)	payment of any monies owing to the State Housing Commission in relation to Caveat H12345;

[2010] FCWA 116

(e)	payment of the BankWest loan of the Applicant in the sum of $9,000 with the balance to be paid by the Applicant; and
(f)	subject to order 12 hereof and excluding the wife’s liability for $9,000 of her personal loan the balance to the parties in order to achieve a settlement of property of 57.5% to the Applicant and 42.5% to the Respondent, Mr Fallon.

3 In the event the Respondent fails to sign any documents to effect the sale of the property, then a Registrar of the Family Court of Western Australia be appointed pursuant to Section 106A of the Family Law Act 1975 to sign documents in relation to the sale of the property on behalf of the Respondent.

4 Pending settlement of the sale of the home:

(a)	the Applicant be entitled to the exclusive use and occupation of the home;
(b)	the Applicant pay the rates, taxes, outgoings and mortgage instalments from time to time payable in relation to the mortgage in favour of State West Credit Society registered against the Title to the home; and
(c)	the wife pay the instalments from time to time payable on the BankWest loan.

5 The Respondent be restrained and an injunction be granted restraining him from entering upon and residing at the property at [the suburban address].

6 The Respondent transfer to the Applicant the whole of his right, title, estate and interest in:

(a)	the furniture and personal effects in the home;
(b)	the 2004 [Mitsubishi] motor vehicle;
(c)	the Applicant’s savings, including those deposited with the Bank of Queensland; and
(d)	the Applicant’s superannuation entitlements.

7 The Applicant transfer to the Respondent the whole of her right, title, estate and interest, if any, in the personal effects in the Respondent’s possession to include his 1996 [Ford] motor vehicle;

8 Subject to any provision in these orders to the contrary, each party be solely entitled, to the exclusion of the other, to the property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders.

9 Subject to any provision in these orders to the contrary, each party be solely liable for and indemnify the other against any liability encumbering any item

[2010] FCWA 116

of property to which that party is entitled pursuant to these orders, including,
but not limited to, any capital gains tax liability.

10 Each party do all acts and things, including signing all documents necessary to give effect to these orders.

11 The Form 1 application filed 19 March 2010 otherwise be dismissed.

12 The Respondent is to pay costs in the sum of $10,000, such amount to be deducted from his share of the proceedings of sale of the former matrimonial home prior to disbursement to him.

I certify that the preceding [37] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate