FEARNE & FEARNE (No.2)
[2012] FMCAfam 917
•6 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FEARNE & FEARNE (No.2) | [2012] FMCAfam 917 |
| FAMILY LAW – Marital property proceedings – wife seeks that proceedings be heard on an undefended basis – marriage of ten years in duration – matters to be considered – small asset pool – assessment of contributions – parties’ respective contributions assessed as equal – section 75(2) factors – wife has care of parties’ two children aged 8 & 6 – children have special needs – wife is modest income earner – husband unlikely to pay child support – overall assessment of section 75(2) factors overwhelmingly favours wife – considerations of justice and equity indicate wife should retain former family home. |
| Family Law Act 1975 (Cth), ss.79; 79(4)(c); 75(2) |
| Taylor v Taylor (1979) 143 CLR 1 Fearne & Fearne [2011] FMCAfam 1432 Lee Steere v Lee Steere (1998) FLC 91-626 Ferraro v Ferraro (1993) FLC 92-335; Clauson v Clauson (1995) FLC 92-595 Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143 Wardman & Hudson (1978) FLC 90-466 Biltoft & Biltoft (1995) FLC 92-614 Russell v Russell (1999) FamCA 187 Waters & Jurek (1995) FLC 92-635 GH & CTH [2005] FamCA 734 |
| Applicant: | MR FEARNE |
| Respondent: | MS FEARNE |
| File Number: | ADC 3796 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 6 June 2012 |
| Date of Last Submission: | 6 June 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 6 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | In person |
ORDERS
The mother do have the sole parental responsibility for the children of the marriage X born (omitted) 2003 and Y born (omitted) 2006.
The said children do live with the wife.
The said children do spend time with the husband at such times and upon such conditions as may be agreed between the parties.
The wife do authorise the children’s school to provide to the husband copies of all school newsletters, school reports, photographs and the like of the children and the father be at liberty to attend at all school functions to which parents are usually invited to attend.
Each party do forthwith inform the other in the event of any serious accident or illness of the children and in the event of hospitalisation each parent do be entitled to attend at such hospital.
Each party be restrained and an injunction be granted restraining each of them from:-
(a)ridiculing or denigrating the other to the said children or in the presence of the said children or permitting any other person to do so;
(b)discussing the proceedings with the said children or permitting any other person to do so.
The appointment of the independent children’s lawyer is dismissed.
In full and final settlement of all claims for the settlement of matrimonial property:
The husband do all necessary things to transfer to the wife his interest in the Hyundai (model omitted) car registration number (omitted) currently in the wife’s possession.
The husband do all things necessary to transfer to the wife his entire right and interest in the former matrimonial home located at Property K in the State of South Australia and being the whole of the land described in Certificate of Title Volume (omitted) Folio (omitted).
The parties take all necessary steps and execute all necessary documents to discharge the mortgage in favour of mortgage number (omitted) to the Bank of Western Australia Ltd.
In the event the husband fails to comply with order 8, 9 and 10 hereof within thirty (30) days of the date hereof pursuant to section 106A of the Family Law Act 1975 the Registrar of the Family Court at Adelaide is appointed to execute any necessary deeds or instrument required to be completed to give effect to these orders in event either party refuses or neglects to comply with order (11) hereof.
The wife keep the husband forever indemnified in respect of all outgoings in respect of the former matrimonial home including payment of all monies due in respect of:
(a)All mortgage payments, rates, taxes, levies and other outgoings; and
(b)All debts and liabilities of the wife including personal loan, credit card and store account debts in the sole name of the wife or severally with others.
That as and from the date of this order, each party shall retain all assets which each now has when so ever or how so ever required; including but without limiting the effect hereto the respondent shall retain for her sole use and benefit absolutely free from any further claim or demand of the applicant:
(a)furniture and effects in her possession, power and control.
(b)any motor vehicle in her possession.
(c)any savings and investments in her sole name.
(d)any superannuation entitlement, long service leave, annual leave or other work related benefits.
(e)her personal effects.
(f)any other real and/or personal property and/or financial resources of the respondent in the respondent’s name and/or possession not otherwise specified herein.
Including but without limiting the effect hereof, the applicant shall retain for his sole use and benefit absolutely free from any further claim or demand of the respondent:
(a)the furniture and furnishings in his possession, power and control.
(b)any motor vehicle in his possession.
(c)savings, shares and investments in his name.
(d)any superannuation entitlement, long service leave, annual leave or other work related benefits.
(e)personal effects.
(f)any other real and/or personal property and/or financial resources of the applicant or in the applicant’s name and/or possession not otherwise specified herein.
All extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Fearne & Fearne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3796 of 2011
| MR FEARNE |
Applicant
And
| MS FEARNE |
Respondent
REASONS FOR JUDGMENT
The parties to the proceedings before me today are Mr Fearne “the husband” and Ms Fearne “the wife”. The wife is representing herself in these proceedings. The husband is not present.
These reasons for judgement are being delivered orally. They principally turn on property proceedings and the appropriateness and necessity of them being determined, on an undefended basis, in the absence of the husband.
Mr Fearne commenced these proceedings on 11 October 2011 and Ms Fearne responded to them on 18 October 2011. At this stage, the wife wishes me to finalise her application for property settlement. The proceedings had earlier been listed before me today for a three day trial. It being anticipated earlier that the husband would participate in them.
The proceedings also concern final arrangements for the care of the parties’ two children, X, who was born on (omitted) 2003 and Y, who was born on (omitted) 2007.
Earlier today, in the absence of the husband, I made final orders in respect of the arrangements for the care of the two children concerned. It now falls for me to deal with the wife’s application for property settlement in the absence of the husband.
Before orders are made in respect of the person’s property, he or she should be given an opportunity to be heard and put forward any evidence he wishes to be considered before orders are made.[1]
[1] See Taylor v Taylor (1979) 143 CLR 1
However, if the court is satisfied that a person has been given proper notice of the proceedings and it is fair that the proceedings be finalised, the court has a discretion to deal with an application on the basis that one of the parties has failed to take part in the proceedings or conduct them properly or to conduct them with due diligence.
The Federal Magistrates Court is a court of private law. It determines disputes between parties according to law. In this case, according to the provisions of the Family Law Act 1975, which provides criteria for the division of property following martial breakdown and arrangements for the parenting of children.
The court cannot compel a respondent to engage with litigation. It is however obliged to give a respondent the opportunity to put evidence before the court and, if he or she wishes, to contest any evidence relied on by the applicant.
However, a respondent, whether by disinterest or manipulation or because his or her life is in disarray, cannot succeed in denying an applicant a just resolution, according to law, to his or her application, by choosing not to take part in proceedings.
I have come to the conclusion that it is appropriate that these proceedings be finalised on an undefended basis without any further input from the husband. I am satisfied that he knows these proceedings are on foot and has consciously elected not to take any further part in them.
In those circumstances, the wife is entitled to have these proceedings finalised, so that she can move on with arrangements for her life, particularly in respect of financial matters.
In order to understand why I have reached this conclusion, it is necessary for me to outline the relevant matters which bring the matter to this point.
The husband was born in 1971; the wife was born in 1970. Accordingly, both parties are in their early 40s. They were both born in (omitted). They married in (omitted) on (omitted) 2001. Neither party had been previously married. They emigrated to this country in 2003.
There can be no doubt that they separated following a marriage of about 10 years in duration on 31 August 2011. There is also no doubt that the circumstances surrounding the parties’ separation were difficult for all concerned.
The husband commenced these proceedings quite soon after the parties had separated. It is the wife’s case that the marriage had been deeply unhappy for many years. She categorises the husband as a person with an unusual personality. She would say that he is a person who finds it difficult to fit in with others in life and who easily falls into conflict with other people.
The husband acknowledges that he suffers from dyslexia. In March of 2011 or thereabouts, it seems that the husband, who is a (occupation omitted) by occupation, went on WorkCover payments as a result of allegedly being bullied in his workplace. It seems that he was under some stress at this time. This seems to have been a further factor which exacerbated the stresses in the parties’ marriage.
At any event, in August of 2011, the parties were on a bicycling expedition together. In the past it seems that each of them has had a strong interest in cycling. It is the wife’s case that in a fit of unexplained behaviour, the husband rode his bicycle in an erratic and dangerous manner and attempted to ride it at her.
In any event, she suffered no harm but the husband fell heavily from his bicycle and fractured his pelvis. He had to go to hospital. He was in hospital for an extended period of time and this episode seems to have been the final precipitating factor, so far as the wife was concerned, which brought the parties’ unhappy marriage to an end. There is no dispute, I think, between the parties, that since 31 August or thereabouts they have been separated.
The husband, by his application of October 2011, wanted the court to make orders that would have allowed him to return to the former matrimonial home, following his discharge from hospital after his bicycle mishap. This is a property located at Property K. It was purchased some time in 2004. It is the parties’ major financial asset. It is owned in joint names.
This issue of sole occupancy was vehemently contested between the parties. It was the wife’s position that it was simply impracticable for the husband to return to the home, given what had occurred earlier between them and the fraught nature of their fairly recent separation.
It was the husband’s position, as I recall, that he could sleep in the family room and, from his perspective this was a workable outcome, although clearly not the optimal one. At that stage he asserted that he had nowhere else to go and, in effect, would be living on the street once he was discharged from the rehabilitation facility, where he had been treated following his discharge from hospital, unless some order was made permitting him to return to the Property K property.
At any event, I elected that the wife should continue to have the sole occupation of the parties’ home. I provided extensive reasons in regards to this contentious issue.[2] The husband was represented by senior counsel at the hearing. The wife by her then solicitor.
[2] See Fearne & Fearne [2011] FMCAfam 1432
I formed the view that the wife was the person who was providing predominant care for the parties’ two children and they were children who had some special needs, which required some measure of stability to support. In these circumstances, I came to the view that it was simply unworkable for Mr Fearne to return to the household.
At that stage, it was also the husband’s position that he had been extensively involved in parenting X and Y, prior to separation. In those circumstances he wanted to be as close as possible to the two children concerned. However, at that stage he was far from mobile due to his recently fractured pelvis.
The sole occupancy issue, as I say, was vigorously contested. It consumed a significant proportion of the parties’ savings, savings which they could ill afford to spend.
In January of 2012 the proceedings returned to court. By this stage both parties had exhausted their available savings for legal proceedings. The husband agitated to spend more time with the two children concerned. The wife opposed that, it being her case that the husband remained emotionally unstable.
Ultimately, I determined that the husband, who by this stage had obtained alternative accommodation for himself, should be allowed to spend some overnight time with the children concerned.
But at that stage it was apparent to me that there was significant conflict between the parties and there were significant factual disputes between them regarding previous care arrangements for the two children, the chief dispute being the level of involvement of Mr Fearne with the two children concerned.
There was also a subsidiary dispute as to what was the level of disability which the two children concerned suffered, it being the case that the younger child, Y’s special needs had not as yet been fully diagnosed and assessed.
Because each of the parties was representing himself or herself and because of the extreme degree of conflict between them, I thought it was appropriate that the two children be independently represented. The children’s representative was Mr K, an experienced family lawyer in the employ of the Legal Services Commission of South Australia.
In January, at the instigation of Mr K, it was ordered that there be a family assessment report prepared in respect of the needs of the two children concerned. That report was prepared by Dr C, a psychologist. It is a lengthy document and in my view provides a comprehensive assessment of the psychological needs of X and Y and the nature of their relationship with each of their parents.
Dr C was of the view that it was neither practicable nor likely to be in the best interests of the two children concerned for them to be parented in a shared care arrangement. He considered that the children needed to live more with one parent than the other. It was Dr C’s opinion that the children should live more with their mother than their father.
At the time he assessed the family, which was in March of 2012 following interviews and observations in February of 2012, Dr C was of the view that the children concerned had a significant relationship with their father and needed to continue to spend time with him. However importantly, Dr C was also of the view that the husband needed continuing psychological support.
In essence, I think Dr C was concerned that Mr Fearne was not completely emotionally well in himself or emotionally resilient. I was well aware that Dr C’s assessment was likely to be contentious so far as Mr Fearne was concerned.
On that basis and because property issues remained outstanding, the trial for today was fixed, but after Dr C’s report came to hand, I ordered that there be a directions hearing arranged, so that the parties concerned could touch base with one another to see if there was any possibility of them reaching an accommodation with one another, in the light of the report’s recommendations and after hearing what Mr K’s view of the matter was.
That directions hearing was scheduled for 30 April 2012. I was anticipating that Mr Fearne would attend that appointment with the court. He did not do so. Rather he has sent letters to the wife and to others which make it very clear that he has no wish to take part any further in these proceedings. In effect, he has said that he washes his hands of both the wife and the children.
To a certain extent his behaviour up to this stage has confirmed the wife’s description of him and confirmed her assertion that he is unreliable and psychologically labile. The tone of his letters is unequivocal. In all these circumstances I have no doubt that Mr Fearne knows of these proceedings. I also have no doubt that he has decided not to take any further part in them.
In these circumstances, the wife is entitled to have her application determined and finalised, both so far as property and arrangements for the children are concerned. In the jargon of the times, she is entitled to have closure. She is entitled to be able to move on with her life and for her financial relationship with Mr Fearne to be brought to an end regardless of the fact that Mr Fearne is not cooperative with that process.
The husband’s position, as set out in his application, is that the parties’ assets and financial resources should be divided equally between the parties.
On the other hand, it is the wife’s position that she should retain the parties’ most significant asset, which is the Property K property. In her response, filed 18 October 2011, she proposed that she would pay an amount to be determined by the court to the husband for his interests in the property.
It is now the thrust of the wife’s position that, overall considerations of justice and equity now dictate, given the small pool of property available to be divided between the parties, that it would not be fair to her, if she was compelled to liquidate her interest in the Property K property in order for the husband to receive a relatively modest sum of money.
Earlier today in the light of Mr Fearne’s non-appearance and in accordance with the recommendations of the independent children’s lawyer, which were endorsed by Dr C, I made orders for X and Y to live with their mother and for Ms Fearne to have sole parental responsibility for the two children concerned.
That, of course, is a significant thing for the court to do. Mr Fearne has said he loves the two children concerned and, in the recent past, he has been a vociferous advocate that they should be parented equally by both their parents. However, the tone of Mr Fearne’s correspondence is that he does not wish to engage in any parenting role for the two children concerned.
Both X and Y have special needs. Both children are autistic and suffer from language delays. Their behaviour is at times challenging but not necessarily in the same way. As a result of the orders made earlier today the wife will essentially parent these two children alone.
The wife is not entitled, as of right, to the orders which she seeks. Rather, the onus remains on her to establish to the court that the orders which she seeks in respect of property are just and equitable according to law. Notwithstanding the absence of Mr Fearne, the court’s preeminent responsibility is to ensure that the outcome of the property proceedings is a just one according to law. I turn now to briefly outline the principles which I must apply.
The process to be followed for the division of the parties’ property is well established by law.[3] The relevant legal principles are primarily contained in sections 79 and 75(2) of the Family Law Act 1975. I am required to follow a number of specific steps.
[3] See Lee Steere v Lee Steere (1998) FLC 91-626; Ferraro v Ferraro (1993) FLC 92-335;
Firstly, I must ascertain what are the parties’ assets and liabilities as at the date of trial.[4] This is because there is only one exercise by the court of the power conferred on it by section 79 to make a matrimonial property order.
[4] See Wardman & Hudson (1978) FLC 90-466; and Biltoft & Biltoft (1995) FLC 92-614
The second step involves the court ascertaining the contributions which party each has made towards the assets identified following the first step. Contributions fall into two broad categories.
The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.”[5]
[5] See Family Law Act s79(4)(c)
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 75(2) of the Family Law Act 1975. Pursuant to section 75(2)(o), the court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
Finally in determining what order the court should make under section 79, the court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the court must consider.[6]
[6] See Russell v Russell (1999) FamCA 187
Turning towards the first step. The parties’ major asset is their former family home situated at Property K. During the course of these proceedings, the parties obtained a formal valuation of the property which valued the house at $280,000. The house is subject to a mortgage in favour of BankWest, as at today’s date approximately $168,000 is outstanding on that mortgage.
As a result of the sole occupancy proceedings I ordered that a sum of $10,000 be liberated from the parties’ equity in the property to enable Mr Fearne to re-accommodate himself. It is the wife’s position that that payment is a factor, which must be taken into account in these proceedings. Accordingly the parties’ net equity in the property is somewhere in the vicinity of $100,000.
The other assets are a car, in the wife’s possession, which is valued at $2,800; a car in the husband’s possession, which is worth $5,100; and the parties each have some superannuation, the husband’s being just over $21,000 and the wife’s being just under $13,500.
So on any view, when the mortgage is taken into account, the pool of assets available to be divided between the parties is a modest one. At best, the parties, putting aside their superannuation entitlements, have around $120,000 to be divided between them.
It is the wife's position, which I accept, that the parties' savings at separation have been largely exhausted in legal expenses and other living expenses.
In terms of the second step, the marriage between the parties was one of 10 years in duration. It is the wife's case that she was in the paid workforce for the vast majority of the parties' marriage, as indeed was the husband.
It is further the wife’s case that she discharged the majority of the responsibility for parenting X and Y, which at times was a challenging exercise because of the children's special needs. I accept that this was so particularly in the early stages when the diagnoses of each of the children were uncertain.
The wife portrays the husband as a narcissistic and self absorbed person who was not of much utility to her in parenting the children. Whether that is so or not is difficult for me to ascertain but I accept that it was the wife who discharged more of the parenting and homemaking responsibilities for the two children concerned and she did that whilst being engaged in the paid workforce.
The husband was also working. It seems that the nature of the husband’s personality created issues for him in the workplace, which led to instability in his employment. The wife is also somewhat critical of him for becoming involved in financial ventures, which were not particularly fruitful.
She portrays him as being something of a dreamer, who was at times out of touch with reality. Again, whether this is so or not is difficult for me to ascertain but clearly, on the wife's case, she was deeply unhappy in the marriage for very many years and as such had to do most of the work, both paid and unpaid, to keep the marriage afloat.
In general terms however, the wife is prepared to accept that the contributions, which each of the parties made during their relationship, although different in kind and quality, are approximately the same. Given the small extent of the asset pool, this does not seem to me to be an unreasonable position.
The husband's position, I think, is that he significantly improved the value of the property by renovating it. The wife concedes that he has talents in this regard but it is her case that the husband is a person who finds it difficult to follow through on things and that once the repairs and renovations were started they were not completed and their incomplete state has reduced rather than enhanced the value of the property.
Again, these are issues which are difficult for me to resolve, at this stage, in the absence of any detailed evidence. As such, it is difficult, if not impossible, for me to put in dollar terms what is either the value of the renovations or the detriment in dollar terms which resulted from the renovations not be completed or not being followed through with.
I should say that it is the wife's position that, although the property has been valued at $280,000, she thinks that, if it goes on the market, in its present state, it is unlikely to secure such a sum but is more likely to reach something like $260,000.
From her perspective, if agents' costs are added on, it will further erode what is the modest equity which the parties hold in the property. Accordingly, the underpinning of the wife’s case is that the parties are facing an uncertain financial future, which is not assisted by the absence of the husband and his feckless behaviour to date.
I turn now to the third step. In this case, it seems to me, that the most significant matters for consideration arise under section 75(2) of the Family Law Act. In my view, what is the just and equitable outcome turns on the court’s assessment of the section 75(2) factors.
In the case of Waters v Jurek,[7] the Full Court of the Family Court directed that courts such as this one are to give the provisions arising under section 75(2) real rather than token weight.
[7] Waters & Jurek (1995) FLC 92-635 at 82,376
And, again, the Full Court in the case of GH v CTH[8] indicated that the court must be careful that any adjustment it makes under the section 75(2) factors should not be allowed to become hopelessly inadequate because of the small extent of the property pool available to be divided between the parties.
[8] GH & CTH [2005] FamCA 734
In terms of the relevant section 75(2) factors the parties are of similar ages both have some issues regarding their psychological health and resilience [section 75(2)(a)]. It is the wife's case that she has been subject to some depression and anxiety, since the parties separated. But she has been forced to struggle on with her work commitments and her responsibilities for the two children. I have not seen any up to date assessment of the husband's health. In the past, I have been told that his psychological issues are on the mend.
In terms of the parties' respective income and their physical and mental capacity to derive appropriate income [section 75(2)(b)], at the present time the wife is an (occupation omitted). She has a (qualifications omitted). She is earning a modest income of around $673 per week, which equates to an annual salary of about $35,000.
In the past she has acquired a (qualifications omitted) and has done some (course omitted) studies. She has prepared her own material for these proceedings and that demonstrates her, I think, to be an intelligent and capable person.
She intends to go back and acquire some further qualifications in future but at the present time because of her responsibilities for X and Y it must be difficult for her to contemplate further study.
At this stage it is, I think, a significant factor that the wife is only receiving a modest income, which is augmented by considerable Social Security benefits, which relate to a significant degree to the disabilities of the two children concerned.
Mr Fearne has skills as a (occupation omitted). What his physical capabilities are at the present time, due to his bicycle accident and due to his psychological issues, are unclear to me, but I would think that he is capable of working in the foreseeable future. It is the wife's view that he is likely to return to (country omitted) but whether this is so or not, I do not know.
In my view the most significant factor in this case arises from the fact that the wife will have the care and control of X and Y for the foreseeable future [section 75(2)(c)]. It is the wife's position that because of the children's special needs there are many financial outlays arising in respect of them, which given Mr Fearne has indicated he will have nothing further to do with them, will fall to her to supply.
I accept that this is so. X is eight; Y is five. Accordingly it is likely that the two children will be financially dependent on their mother for the remainder of their childhood and, indeed, quite possibly beyond.
This will be a very significant burden for Ms Fearne to discharge on her current level of salary. I also accept that it is unlikely that Mr Fearne will willingly pay child support for the two children concerned. The wife has deposed that he is currently in arrears of child support and his whereabouts are not known either to her or the registrar of the agency. The tone of his correspondence is that he has washed his hands of the children, both emotionally and financially.
Accordingly, it is likely that Ms Fearne will bear the burden of delivering and collecting the children to and from school alone. If the children are ill, it will be she who will have to take time off work and tend to their needs. Her responsibilities for the children will disrupt her work schedules and inevitably her employment prospects. It will be difficult, as I have pointed out, for her to acquire further qualifications to improve her and the children's financial lot.
The responsibilities relating to children's health, education, socialisation and general wellbeing are myriad. Ms Fearne will have to discharge those responsibilities alone. Inevitably this will impact on the hours of paid work which she can undertake and so on her prospects of promotion. Inevitably her responsibilities for X and Y will impact on her financial bottom line.
The financial responsibilities do not fall on the wife’s shoulders alone, however, it seems unlikely that the husband will be a willing participant in providing financial support for the two children concerned. A relevant consideration is the amount of child support which will be provided, in future, to a party for the financial support of a child of the marriage concerned [section 75(2)(na)].
In Clausen v Clausen the Full Court said as follows:
The weight to be attached to a child support assessment will vary with the circumstances of each case including the amount of the assessment, the financial circumstances of the parties, the needs of the children, whether the assessment is being paid regularly, and whether it is likely that it will continue to be paid at a regular and adequate rate in the future.[9]
[9] Clauson & Clauson (1995) FLC92-595 at 81,911
In this case the financial circumstances of the wife are parlous. The child support assessment is not being paid regularly and it is unlikely that it will be paid regularly and adequately in future.
This factor, in combination with the wife's responsibility to parent the children without any input from Mr Fearne, is a factor which militates very significantly in favour of the wife.
In my view, a conservative allowance for the wife, at this third stage, is a further distribution in her favour, in the vicinity of 30 per cent or so of the parties' pool of assets.
However, it is all very well to speak in percentage terms, prior to making a final property order, but the ultimate function of the court is to consider what are the potential consequences of any order it makes in terms of what is just and equitable.
In so doing the court is not obliged to slavishly follow any findings regarding percentages in its crafting of what it considers to be an appropriate order.
On my calculations 80 per cent of the parties' modest pool of property is somewhere in the vicinity of $95,000, leaving Mr Fearne with a prima facie entitlement to $23,000 or so dollars. Extracting the motor vehicle in his possession, this leaves him with somewhere between $18,000 and $19,000.
It is the wife's evidence that she has no or very limited capacity to borrow. She has been in discussions with a mortgage broker and at best she is likely to be able to borrow up to $8000.
At this stage the fundamental - the most fundamental need that the wife has for herself and the two children is safe and stable accommodation. It is likely to be a financial and logistical catastrophe for Ms Fearne and the children if the property has to be sold and she and they are compelled to look for some other form of accommodation, either temporarily with friends or on the private rental market.
In my view there are some cases where the section 75(2) factors are so compelling that they must result in one party effectively retaining all of the parties' assets.
In my view this is one such case, particularly given that Mr Fearne has walked away from the proceedings and walked away from his financial and emotional responsibilities for the children.
This is a difficult case because of the small pool of assets available to be divided between the parties and the significant financial needs of the parties concerned. The wife is a modest income earner, who has sole parental responsibility for two children each of whom has a significant special need.
The children’s father has made it clear that he is content to leave responsibility for those children with their mother. Given the rancour in these proceedings to date, it does not seem improbable that Mr Fearne will carry through with his intention to abrogate his financial responsibility for the children and he will not pay any meaningful level of child support for or indeed any at all.
The wife has a pressing need for accommodation for herself and the children. She is settled in the former matrimonial home. Given the small amount of equity available in it, in my view, overall considerations of justice and equity dictate that she should retain this property. I am satisfied that the outcome, which I propose, represents a just and equitable one.
For those reasons I propose making orders which would see Mr Fearne transferring his interests in the Property K property to the wife and the parties taking necessary steps to discharge the mortgage in favour of Bank Western Australia and otherwise each party retaining the property including motor vehicles in their current possession and control.
In the event that the husband fails to comply with the orders for him to transfer his interest in the property within 30 days, I will direct that the registrar of the court execute any necessary deeds or instruments on his behalf.
It will be necessary for an order to be made transferring in a formal sense the wife's motor car to her which I am informed is registered in the husband's name but is in the wife's possession.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 6 June 2012
and Clauson v Clauson (1995) FLC 92-595; Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143
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