Frape-Lindstrom and Frape-Lindstrom (No. 3)

[2007] FamCA 1118

FAMILY COURT OF AUSTRALIA

FRAPE-LINDSTROM & FRAPE-LINDSTROM (NO. 3) [2007] FamCA 1118

FAMILY LAW - PROPERTY - Husband’s failure to attend hearing - Very modest pool of assets - Given that fact and the relevant prospective adjustments, the husband’s failing to contribute to the support of the two children, all assets transferred to wife noting that the husband owed some $15,000 in court ordered costs

Family Law Rules 2006 Rule 19.37
Family Law Act 1975 (Cth) s 79(4), s 75(2)
Child Support (Assessment) Act

APPLICANT: Mrs Frape-Lindstrom

RESPONDENT: Mr Frape-Lindstrom

FILE NUMBER: MLF 3515 of 2004

DATE DELIVERED: 10 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 10 September 2007

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

(1)That the wife forthwith be paid the balance of the funds invested in the National Australia Bank term deposit account No. … in the name of Cole & Co., Solicitors Control Money Account, on behalf of Frape-Lindstrom.

(2)That the husband sign all documents and do all necessary things to transfer into the wife’s sole name the whole of his interest (if any) in the Management Investment Funds held by Colonial First State account No. … AND THAT the wife thereafter administer the funds for the benefit of the elder son born in February 1999 and the younger son who was born in October 2000.

(3)That in the event the husband fails to execute any necessary deed or instrument pursuant to paragraph 2 hereof within 21 days of the date of this Order a Registrar of this Court be appointed to execute all such documents as may be necessary to give validity and operation to the Order.

(4)That unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent orders:

4.1each party 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;

4.2each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

4.3each party retain the benefit of all furniture chattels and effects in their possession.

IT IS FURTHER ORDERED

(5)That the wife do cause to be forthwith served upon the husband a sealed copy of the Orders made this day.

(6)That all extant applications be otherwise dismissed AND THAT the proceedings be removed from the Active Pending Cases List.

IT IS DIRECTED

(7)That the ex tempore judgment delivered this day be transcribed, and when transcribed a copy placed upon the Court file and made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3515  of 2004

MRS FRAPE-LINDSTROM

Applicant

And

MR FRAPE-LINDSTROM

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1.The proceedings before me concern a Form 1 Application for Final Orders filed by the husband on 9 December 2004.  The wife filed a Form 1A Response on 14 January 2005 and an amended Form 1A Response on 2 August 2007.  The assets of the parties are very modest indeed, and in any event by order made on 30 July 2007, Young J made an interim partial settlement of property on that day by ordering the wife be paid $35,000 which has left within the available pool of assets a total balance of about $18,000.  Each party have, as I understand it, some modest superannuation benefits.

BACKGROUND

2.The husband was born in March 1972, and is 35 years of age.  He works in the hospitality industry.  The wife was born in January 1972 and is 35 years of age.  She works in the customer service industry.  The parties married in August 1994 at M in the state of Victoria.  Following unhappy differences between them they separated in December 2003.  There were two children born of their union, the elder son born in February 1999 and he is eight years of age.  The younger son was born in October 2000 and is nearly seven years of age.

3.The parties have been engaged in bitter dispute now for several years with the children's welfare issues now being the subject of orders made by consent on 5 May 2006 by Registrar Kaur as varied by Young J on 18 April 2007, and further varied by orders made by me on 23 May 2007.  The extempore judgment of Young J on 18 April 2007 and those delivered by me on 23 May 2007 and 10 August 2007 when dealing with seven counts of contravention by the husband of the orders made on 5 May 2006 detail in summary form the current difficulties between the parties. 

4.Following an incident outside the court on 18 April 2007 the husband has failed to attend court at any further hearings, including that before Young J on 30 July 2007.  I am satisfied that the husband has had notice of each of the hearings.  He has failed to attend, and clearly evidences an intention to not participate nor be heard on the issues before Young J on 30 July 2007 or myself this day.  That is his choice. 

5.I made an order on 10 August 2007 that all extant property proceedings be adjourned for final determination before me this day, and for the filing of any affidavit material upon which either party sought to rely.  Nothing has been filed by the husband.  I am satisfied as to service of the orders made that day and of the affidavit material relied upon by the wife in this application. 

THE EVIDENCE

6.The wife’s material comprises her affidavit filed on 15 May 2007 together with her Form 13 Financial Statement, her affidavit of 10 July 2007 and that of 2 August 2007.  I have read those affidavits.  Since separation, the husband has demonstrably failed to contribute to the children's financial support including their health and education.  He has, it is asserted by the wife, lied to the Child Support Agency concerning his employment and has wilfully acted to reduce his child support commitments by reducing his hours of employment. 

7.The wife is and has been the primary carer of the children with the consequence that she has borne the onerous obligation of their day-to-day nurture and care.  The associated costs of that are set out by her in her Financial Statement. 

8.Another issue is that concerning costs.  The husband was ordered to pay the wife's costs of the hearing before me on 23 May 2007 to be assessed by the registrar and the costs ordered on 1 July 2005 by Morgan J which amount to $4681.69.  I understand that the estimate of costs of the proceedings before me amounts to about $10,000. 

9.The wife has caused to be filed an affidavit sworn by her on 5 July 2007 and an affidavit sworn by her former solicitors on 6 September 2007 dealing with the itemised costs outstanding pursuant to those orders.  The total overall is about $15,000, as I said.  A covering letter from the wife's solicitors to the court dated 6 September 2007 explaining that itemised cost account was prepared and served upon the husband on 14 August 2007. 

10.Rule 19.37 of the Family Law Rules 2006 provides for 28 days from date of service for the husband to file a notice disputing costs.  That takes it to 11 September 2007 - tomorrow.  I think, given the history, that it matters little as the husband has demonstrated an historic reluctance to attend court and will, I suspect, not attend Registrar Riddiford tomorrow.  I take these outstanding costs into account when coming to my determination.

CONCLUSION

11.In considering this matter I have a broad discretion to make such orders as I consider appropriate, tempered however by the requirements of such orders being just and equitable in the circumstances of the case. In undertaking this task I am required to take into account those matters set out in section 79(4) of the Family Law Act 1975 (as amended). The legislation provides me a discretionary power to adjust the property interests of the parties in a manner that will do justice and equity between them. The discretion I have is an extensive one.

12.I am not obliged to adopt an excessively mathematical approach in considering the contributions pursuant to section 79(4) of the Act, but rather a broad estimate of the financial contributions and otherwise those matters set out in section 75(2) of the Act. That is, my task is a matter of authoritative and informed judgment, not of exact computation.

13.Needless to say in general considerations of justice and equity as the statute requires, weighing matters where some may be calculated with apparent precision while others cannot be more than a practical assessment, a search for a true mathematical ideal is a misleading illusion concerning my task and in particular, this case.  An established line of authority has made it clear that there are three steps I must undertake in the determination of the property entitlements of each of the parties. 

14.First, I am required to identify a property of the parties.  In this regard the remaining property is set out in Table A to the wife's affidavit filed 10 July 2007, which was before Young J on 30 July 2007 when making his interim determination for a partial settlement of property.  The current assets remaining are very modest indeed and comprise approximately $14,000 being the balance remaining now from the sale of the former matrimonial home, and held on trust by the solicitors, Cole & Co.  There is a trust fund in the Colonial First State of about $3400.  The husband and the wife control those moneys.  Those moneys were set aside by the parties for the children's future education.

15.The wife has some superannuation benefits of approximately $40,000.  She is employed, as I said, in the customer service industry and earns approximately $75,000 per annum.  She has stable employment.  She clearly works hard.  She has been located in her place of employment for the last five years.  She has repartnered with a Mr S who works in the information technology industry. 

16.At the time of separation the husband had superannuation benefits of about $30,000.  He has failed to provide any further information.  The wife has little knowledge about his current circumstances.  He works in the hospitality industry.  Documents within the file persuade me that he has so acted as to manipulate his working hours with the consequence that he reduce his child support commitments pursuant to provisions of the Child Support (Assessment) Act.  I have little confidence that he will ever improve his position and undertake his parental responsibilities, as he ought.

17.Second, I am obliged to make an evaluation of what contributions have been made by the parties including direct and indirect contributions of a financial character and non-financial character and contributions to the welfare of the family including those as a home maker and parent. The parties, I rather suspect, contributed equally throughout the marriage to the date of separation. Thereafter the burden of support for the children fell upon the wife as the material on the court file demonstrates. In dealing with the very modest remaining assets I adopt a broad approach to both contribution and an assessment of the factors pursuant to section 75(2) of the Act, which are picked up by the terms of section 79(4)(e). Namely, the circumstances which relate to the present and future needs of the parties with their means resources and earning capacities both actual and potential.

18.Third, the provisions of section 75(2) of the Act do not apply automatically, but only to the extent where they are relevant.  I am mindful of the fact that the various paragraphs of that section of the Act come into play and are to be given appropriate weight when they are relevant to making a property order between the parties.  I take that into account.

19.Given the terms of section 79(4) and section 75(2) of the Act, and particularly given the very modest remaining assets for distribution and taking into account the partial settlement of property already made thus far, I am satisfied in the exercise of my discretion that the remaining funds in their totality should be transferred to and become the property of the wife with the wife to control the funds invested for the children’s benefit. An overall survey of the facts directs me to that conclusion. That will mean that the husband still owes moneys pursuant to the cost orders of this court and that is necessarily so given those orders and the circumstances which they were made. He was master of his own position.

20.Furthermore, the husband has not produced any evidence as to his assets, his liabilities, his income or financial commitments which is his choice and in respect of which it is appropriate for me to draw an adverse inference.  The overwhelming factors that influence me towards that decision are firstly the very modest nature of the remaining pool of assets, and secondly the fact that it is the wife who has the onerous obligation for the care, welfare and nurture of the two children of the marriage with little contribution from the husband, who on the affidavit material, manipulates his financial position to minimise his child support commitments.  In this regard, given his poor history and failure to obey court orders, the future looks bleak insofar as any expectation that the wife may have for the husband to honour his lawful and parental obligations.

21.I have little doubt that the modest funds invested with the Colonial First State will be utilised by her for the children's benefit.  She has given that indication very clearly to me from the bar table this morning. 

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate

Date:  21 September 2007.