FOSSE & FOSSE

[2019] FCCA 3140

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOSSE & FOSSE [2019] FCCA 3140

Catchwords:
FAMILY LAW – Undefended hearing – property proceedings – orders made. 

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 61DA, 65DAA, 65D,

4AB(1), 79(4), 79(2), 75(2), 79(1), 75(2).

Cases cited:

Lotta & Lotta [2017] FamCA 50

Russell & Russell [1999] FamCA 1875

Teal & Teal [2010] FamCAFC 120

Applicant: MS FOSSE

Respondent: MR FOSSE

File Number: PAC 2598 of 2019

Judgment of: Judge Newbrun

Hearing date: 2 October 2019

Date of Last Submission: 2 October 2019

Delivered at: Parramatta

Delivered on: 8 November 2019

REPRESENTATION

Solicitors for the Applicant: Mr Horsborough

No appearance by or on behalf of the Respondent.

ORDERS

1. Within 28 days of the making of these orders the Respondent it is to vacate the property situated at B Street, Town C in the State of New South Wales (“the property”) and thereafter shall provide vacant possession to the Applicant.

2. That the Applicant shall be permitted to undertake any necessary cleaning and/or repairs of the property in order to ensure that the property is in a presentable and marketable state for sale. The costs of such cleaning and repairs shall be borne equally between the parties, and in the instance that such costs are paid for by the Applicant then an adjustment shall be made at settlement.

3. That on or before 30 June 2020 the Applicant shall do all such acts and things to cause the property to be sold.

4. For the purposes of order 3, herein the Applicant shall:

   4.1Nominate the conveyancer to act on the sale of the property.

   4.2Nominate the Real Estate Agent to act on the sale of the property.

   4.3Nominate the Reserve Price of the sale of the property.

   4.4Determine the sale price of the property.

5. For the purposes of order 3, herein the Respondent shall:

   5.1Sign all documents required to facilitate the sale of the property, included but not limited to the contract of sale, the real estate agent agreement, the conveyancer's costs agreement.

6. That following the sale of the property, the proceeds of the sale shall be paid in the following manner and priority:

   6.1Payment of all costs and expenses of sale including agent’s commission, advertising costs and legal costs.

   6.2Payment to the Applicant for reimbursement of money spent on cleaning, materials and trades required to restore the house to saleable order.

   6.3The balance to be divided between the parties as follows:

   (a)60% to the Applicant; and

   (b)40% to the Respondent.

7. That from the date of the making of these orders the Applicant shall be solely entitled to the exclusion of the Respondent all of the right, title and interest in the property situated at D Street, Town C in the State of New South Wales.

8. That within seven (7) days of the date of the making of these orders the parties shall do all such acts and things and sign all necessary documents to transfer into the Respondent's sole name, at the cost of the Respondent, the registration of the motor vehicle E.

9. That from the date of the making of these orders each party shall retain all items of property in their possession, custody and/or control and unless otherwise specified in these Orders except for the purposes of enforcing payment of any money due under these or any subsequent Orders:

   9.1Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any choses in action, jewellery, furniture, furnishings, shares and motor vehicles.

   9.1.1Moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held.

   9.1.2Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.

   9.1.3Each 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 these Orders.

10. That:

    10.1Each 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.

    10.2If 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 or Deputy Registrar of the Parramatta Registry of the Federal Circuit 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.

    10.3A defaulting party shall pay the other party's taxed costs of and incidental to such request and production of documents to the Registrar.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2598 of 2019

MS FOSSE

Applicant

And

MR FOSSE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was the undefended final hearing of property proceedings between the parties.

2. The Court is satisfied that the husband has had adequate notice of these proceedings and he has chosen not to participate in them.

Proposals

1. The wife’s property proposals were set out in her minute of order which the court has marked Exhibit A.

2. Essentially, the wife sought property adjustment orders, inter alia, that the property at B Street Town C be sold, and after payment of expenses the balance then remaining to be divided as to 60% to the wife, and the balance to the husband; the wife retain her interest in the property at D Street Town C; the wife transfer the motor vehicle E into the name of the husband; and otherwise the parties retain all their other property.

3. At the outset, the Court should state that it is not prepared to make the notations attached to the wife’s proposed minute of order in exhibit a by reason of this being an undefended hearing.

Material relied upon

1. The wife relied upon the following documents:

   a)Her Summary of Argument document dated 1 October 2019

   b)Her Affidavit filed 4 June 2019

   c)Her Financial statement filed 4 June 2019

Evidence: property

1. Throughout these reasons the Court will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

2. The Court accepts the evidence of the wife in her Affidavit and Financial Statement.

Legal principles

1. In Lotta & Lotta [2017] FamCA 50 Foster J stated:

   “The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.

   The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.

   Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.

   There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.

   In many cases this requirement is readily satisfied where the parties are no longer in a marital or defacto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.

   In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.

   It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.

   In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties present property rights without a consideration of s 79 (4) matters.

   Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).

   The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.”

The parties’ assets and liabilities

1. The Court finds the parties’ assets are:

   a)the property at D Street Town C, value $230,000 (registered in the name of the wife)

   b)the property at B Street Town C in the joint names of the parties, value $350,000

   c)wife’s bank accounts, $1,880

   d)wife’s motor vehicle F $1,500

   e)motor vehicle E in the joint names of the parties, $1,000

   f)wife’s household contents $7,000

   g)wife’s superannuation $80,000

2. The Court finds the parties’ liabilities are:

   a) the wife’s mortgage loan of $180,000 in respect to her property at D Street Town C

3. Accordingly, the parties’ non-superannuation assets total $591,380; their liabilities are $180,000. Accordingly, the parties’ net non-superannuation assets are $411,380.  The wife’s superannuation entitlement is $80,000.

Section 79 (2) of the Act

1. The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of the property (see above), and the fact that the continuance of the current legal ownership of the property would not afford them justice and equity.

Contributions

1. At the outset the Court observes that the parties’ relationship spanned the period from about 1985 to about June 2016.

2. At the commencement of the parties’ relationship the mother had about $14,800 in assets, and the husband had assets of about $4,500.

3. The parties had one child Mr G Fosse who was born in 1992. 

4. The wife received an inheritance in 2008 of $195,000.  When the parties purchased the property at B Street Town C in 2008 they used the money that the wife received from her inheritance to help pay for this property.

5. The husband became unemployed in 2008.  He did not obtain another job, instead he relied on the wife and some Centrelink payments.  By reason of the husband’s inaction, his Centrelink payments were intermittent.

6. In 2010 the husband received an inheritance in the sum of about $49,000.  This money was paid into the parties’ savings account and was later used by the husband to purchase a motorbike.

7. The wife worked in paid employment for significant periods during the relationship.  She used her income to support the family.

8. The wife received inheritances from her late parents in the total sum of about $32,000 and she used these monies, together with other personal savings of herself together with a loan by herself from NAB bank, to purchase her property, post separation, in December 2016, at D Street Town C.  The Court finds that the husband made no contribution towards this property.

9. The husband, at times during the relationship, drank alcohol heavily, particular the after he lost employment in 2008.  He developed an alcohol dependency during the parties’ relationship.  From about June 2014 the husband was usually drunk.

10. During the parties’ relationship, the wife was primarily responsible for the parties’ finances.  The husband was not interested in saving money so any savings that the parties had were directly from money that the wife had saved during the course of her employment.  The husband was rarely involved in house repairs and maintenance.  The home at B Street requires many repairs presently.

11. Following separation in about June 2016, the wife continued to pay the majority of the parties’ joint household bills up until September 2016.

12. The Court infers from the husband’s alcohol consumption, his loss of employment and subsequent worsening of his alcohol consumption habit and associated depression, that the wife made superior contributions as a homemaker and parent.  In this context the Court has not overlooked that the child went to live with the maternal grandparents in 2008 when he was about 16 years of age.

13. The Court is not satisfied that the husband made any relevant contribution towards the wife’s superannuation entitlement.  Nor is the court is satisfied that the husband made any relevant contribution towards the wife’s household contents, bank accounts and the wife’s motor vehicle F.

14. Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to non-superannuation asset being the property at B Street Town C (excluding the wife’s property at D Street Town C, her household contents and bank accounts, and the cars, whilst noting that the wife proposes to transfer ownership of the motor vehicle E, valued at $1,000, to the husband), as at trial date as 60% to the wife, and 40% to the husband. By reference to the value of the property at B Street Town C, being $350,000, this results in a disparity between the parties of some $70,000.

Section 75 (2) of the Act

1. The husband is aged 61 years and the mother 57 years.

2. The mother’s health is satisfactory. 

3. The father’s present state of health is unknown. 

4. The wife continues to work full-time and earns about $46,000 per annum.  The husband is unemployed and receives Centrelink benefits.  The wife would appear to have a greater earning capacity than the husband.

5. The mother has superannuation entitlements of $80,000.

6. The husband has not participated in these proceedings and has not provided financial disclosure to the wife which the court takes into account; it is simply not known what the husband’s current assets, liabilities and superannuation entitlements are.

7. Taking into account the above matters, there should be no adjustment under section 75 (2) of the Act.

Justice and equity

1. Pursuant to the Court’s contribution assessment, the husband should be left with 40% of the value of the property at B Street Town C, being $140,000.  The wife agrees to transfer to the husband her interest in motor vehicle E valued at $1,000.  Again, it is unknown what the husband’s current assets, liabilities and superannuation entitlements are.  With the sum of $140,000, inter alia, he can likely afford to at least rent accommodation for the foreseeable future.

2. Pursuant to the Court’s contribution assessment, the mother should be left with 60% of the value of the property at B Street Town C, being $210,000.  The wife should be entitled to retain her other assets, including the property at D Street Town C, her household contents, her bank accounts, her motor vehicle F.

3. The Court is of the view, based on the material before it, that its proposed property adjustment Orders will represent a just and equitable property settlement between the parties.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 8 November 2019