GREEN and GREEN
[2018] FCWA 42
•15 MARCH 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
CITATION: GREEN and GREEN [2018] FCWA 42
CORAM: O'BRIEN J
HEARD: 20 NOVEMBER 2017
DELIVERED : 15 MARCH 2018
FILE NO/S: PTW 4018 of 2014
BETWEEN: MS GREEN
Applicant
AND
MR GREEN
Respondent
Catchwords:
FAMILY LAW - PROPERTY SETTLEMENT - Where wife sought orders for alteration of property interests - Where the only significant property of the parties is the former matrimonial home - Where property is subject to Property (Seizure and Sale) orders - Where the liabilities significantly exceed the value of the property - Where husband argues that the Court and the Supreme Court of Western Australia are invalidly constituted - Where arguments have been previously advanced by the husband in proceedings elsewhere and determined to be without merit - Where no admissible evidence to establish the value of the parties' property - Where husband withdrew from the trial - Consideration of interest of creditors - Where joint tenancy severed and orders made for parties to retain personal property
Legislation:
Family Law Act 1975 (Cth) s 75, s 79
Civil Judgments Enforcement Act 2004 (WA)
Local Government Act 1995 (WA) schedule 6.3, s 6.64, s 6.56
Vexatious Proceedings Restrictions Act 2002 (WA) s 4
Child Support (Assessment) Act 1989 (Cth)Category: Not Reportable
Representation:
Counsel:
Applicant: Self-Represented Litigant
Respondent: Self-Represented Litigant
Solicitors:
Applicant: Self-Represented Litigant
Respondent: Self-Represented Litigant
Case(s) referred to in judgment(s):
Citation omitted.
Citation omitted.
Citation omitted.
Citation omitted.
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia and Another (2013) 251 CLR 533
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Mr Green] (“the husband”) and [Ms Green] (“the wife”) were married [in] 1990. They have five children, who are all now adults.
2Proceedings were first commenced in this Court by the husband filing an application for divorce on 18 July 2014, in which he asserted that the parties had separated in April 2013.
3The wife filed a response to that application in which she indicated that, while she did not oppose the granting of a divorce order, she disputed the husband’s evidence as to the date of separation. She asserted that the parties separated on 19 July 2014.
4At a hearing on 19 January 2015, the husband was granted leave to withdraw his divorce application. He filed a fresh application on 14 July 2015, still asserting that the parties separated in April 2013, but that they had been separated under one roof until 15 August 2014. That application was dismissed on 15 October 2015.
5The husband filed a third application for divorce on 27 October 2015, asserting that the parties had been separated since 15 August 2014. That application proceeded to a hearing on 21 January 2016, when a divorce order was granted.
6The proceedings presently before the Court were initiated by the application for alteration of property interests filed by the wife on 12 August 2016. The progress of the present proceedings has much in common with the various proceedings leading to what might have been expected to be a simple divorce.
7The parties are the joint registered proprietors of a property at [Suburb A] (“[Property A]”). While that property is not encumbered by any mortgage securing borrowings, it is subject to separate Property (Seizure and Sale) orders under the Civil Judgments Enforcement Act 2004 (WA) (“sale orders”). One of those orders (“the City sale order”) attaches to the interests of both parties in the property, and arises from a judgment against them in favour of the [Shire A], now part of [City A] (“the City”) for non-payment of rates. The other (“the [Company A sale order]”) attaches only to the interest of the husband in the property, and arises from a judgment against him in a damages claim brought by [Company A] (“[Company A]”).
8In addition to the sale orders, steps have been taken by the City pursuant to the provisions of the Local Government Act 1995 (WA) to take possession of Property A and sell it, as set out in more detail later in these reasons.
9The amounts awarded under the judgments the subject of the sale orders greatly exceed the value of the Property A, even before any consideration of the debt sought to be recovered pursuant to the provisions of the Local Government Act. That being the case, and in the absence of any other identifiable property of the parties of significant value, an application for alteration of the property interests of the parties might, like the divorce proceedings, have reasonably been expected to be uncomplicated.
10Any such expectation would have been sadly misplaced.
11The husband contends (among other things) that this Court is not properly constituted and accordingly has no jurisdiction to hear and determine the case. Similarly, he contends that the Supreme Court of Western Australia is not properly constituted and that, accordingly, the sale orders are of no effect, being based on judgments themselves made without power. He asserts that the State of Western Australia “has never been lawfully constituted”, that “no judges and magistrates have been lawfully appointed” and that, accordingly, “no decisions of these judges and magistrates have any binding force”.
12The husband further contends that the State courts of Western Australia have no power to make orders relating to any company, as companies are subject to the exclusive legislative authority of the Federal Parliament. He argues that the City, by virtue of having an Australian Business Number, is such a company as is the State Government of Western Australia.
13He goes on to assert that he has “lawfully seized [his] property under clause 61 of Magna Carta” and that he has also “lawfully seized the [City A] offices”. He says that he served a statutory demand for $2.9 million on the City, that the City has “defaulted” and that, accordingly, the City owes him that sum.
14He states further that he has “lawfully seized on behalf of the people of Western Australia the executive government of WA and the judicature under the provisions of clause 61 of Magna Carta and hold them under the Crown”. Similarly, he states that he has “lawfully seized” the Legislative Assembly and the Legislative Council, and that he has recently served on the Premier and the State Government a “commercial lien in tort” for $999 trillion for the “stealing of the people of Western Australia’s assets and usurping authority over the people who are sovereign”.
15On that basis, he argues that even were the Family Court of Western Australia to be properly constituted, I could not proceed to hear his case as my employment status would give rise to a conflict of interest on my part, by virtue of his claim against the State Government and his seizure of both the government and the judicature.
16For her part, the wife made various uncomplicated submissions as to the financial contributions of the parties, which the husband dismissed as a “nonsensical rant”.
17It was against that background that the proceedings were listed for trial before me with an estimated hearing time of two to three days. The parties were both self-represented at trial.
The parties as self-represented litigants
18The husband is, to state the position as neutrally as possible, an experienced self-represented litigant. He has conducted his own proceedings before the Magistrates Court, District Court, Supreme Court of Western Australia, the Court of Appeal and the High Court. [T]he Supreme Court declared him a vexatious litigant pursuant to s 4 of the Vexatious Proceedings Restriction Act 2002 (WA), on the basis of his persistence in instituting proceedings that had no hope of success.
19Nevertheless, I considered it appropriate to spend some time at the commencement of the trial explaining to both parties the steps that I was required to take to ensure that procedural fairness was afforded to each of them.
20I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and their right to cross-examine. I explained the importance of cross-examination and the likelihood that evidence that was not challenged could be accepted.
21I outlined for the benefit of both parties the key components of the law and the principles that apply to proceedings for the alteration of property interests. I specifically drew to the attention of the parties the provisions of s 79(5) and 79(10) of the Family Law Act 1975 (Cth) (“the Act”).
22I explained to the parties their right to object to inadmissible evidence, and the steps which I proposed to take to clarify the particulars of the orders sought by each of them, the evidence upon which they would intend to rely and the substance of their submissions.
23In that regard, I raised with the husband the apparent inconsistency between his primary submission that the Court has no standing to hear the matter or power to make orders, and the relief sought in his Form 1A response filed on 19 August 2016, in which he asked the Court to make orders for the transfer of the property to him.
24 In response, the husband told me that he would “stand on the fact that this Court has a conflict of interest due to the documents that [he] filed against the State Parliament because the State Parliament is a registered company and you are employed by that State Government which is a registered company”.
25He confirmed that his primary submission was that the Court was not properly constituted and, accordingly, did not have the power to make orders, and that the second limb of his argument was that even if the Court has power, it finds itself in a conflict of interest.
26He sought leave to amend his Form 1A response to simply seek the dismissal of the wife’s application. I granted that leave.
27It also became apparent at an early stage that the husband expected that his submissions referred to above would be heard and determined by me as preliminary points, with rulings delivered extemporaneously.
28I explained to the parties that I did not intend to proceed in that manner. I told the husband that I intended to hear and consider his preliminary submissions, and reserve my decision in relation to them. On that basis, I confirmed my intention to proceed to hear the evidence in the case so that all matters before the Court could then be the subject of judgment, without the need for a further hearing in the event that I did not accept those preliminary submissions.
29In response, the husband indicated that he would “take his leave from the Court” and decline to participate in the trial, preferring to take steps to “move the case into the High Court to deal with the constitutional issues”.
30I offered the husband the opportunity to have the matter stood down to give the matter more thought, or take advice if he wished to do so. He declined that opportunity, saying that he could not “participate in this case knowing that the Court is sitting unlawfully”. In response, I made it clear to the husband that it was entirely proper for him to continue to participate in the trial on the clear understanding that he did so under sufferance, and without prejudice to his preliminary submissions. I suggested to him that adopting that course of action would be in his best interests.
31The husband again declined that opportunity, saying that if he “accept[ed] the jurisdiction of the Court… in any shape or form” that would amount to a concession that the documents he had recently served on the State Government were “irrelevant”. Again, I made it clear to him that there could be no logical concern that by participating in the hearing under sufferance he was in any way making a concession inconsistent with the other actions he was taking outside the court proceedings. I explained that if he sought to withdraw I would give him leave to do so, but on the clear understanding that the hearing would proceed in his absence, and that he would be removing from himself the opportunity to cross-examine or make further submissions. He acknowledged that he understood that to be the case.
32The husband then withdrew and the trial proceeded in his absence.
The husband’s submissions
33The primary submissions advanced by the husband in the present proceedings have, albeit in slightly different form, been advanced by him unsuccessfully in other proceedings in other courts.
34That much was summarised by the Court of Appeal in [Citation omitted] when, in considering the husband’s appeal against the order made under the Vexatious Proceedings Restriction Act 2002 (WA).
[Quote omitted].
35To the extent that the husband’s additional submissions rested on the proposition either that the Chief Justice of Western Australia does not validly hold office as he allegedly did not swear an oath of allegiance to the Queen, or the proposition that accordingly the Governor of Western Australia was not validly appointed as her oath of office was administered by the Chief Justice, or the further proposition that I was not validly appointed as a judge of this Court as my oath of office was administered by the Governor, the asserted bases for those propositions were dealt with by the Court of Appeal in [citation omitted], when the Court observed that the arguments advanced in that case revealed [misconceptions in relation to Commonwealth and State constitutions].
36I respectfully adopt the analysis of the Court of Appeal in each of the decisions referred to. It is unnecessary to traverse the other submissions made by the husband in relation to constitutional matters other than to observe that they too reveal similar fundamental misconceptions and are without merit.
37The second limb of the husband’s preliminary submissions, to the effect that I am effectively disqualified from hearing the case by virtue of a “conflict of interest” arising from his purported actions against the State Government, is also misconceived. It is unnecessary to comment on the merit or otherwise of those actions as, irrespective of their merit, a so-called “conflict of interest” on the part of the Court simply could not arise. A central tenet of the doctrine of separation of powers is the capacity of the courts to deal independently and impartially with cases in which the executive branch of government has an interest, whether direct or indirect: TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia and Another (2013) 251 CLR 533 at [104].
38I find that the Court has jurisdiction to hear the substantive proceedings and the power to make orders for alteration of property interests as between the parties.
39Having dealt with those preliminary matters raised by the husband, it is appropriate to summarise the relevant legal principles applicable to the proceedings, the relief sought by each of the parties and the evidence relied upon.
The law
40The Court has a wide discretion conferred by s 79(1) of the Act. That discretion must be exercised in accordance with legal principle, and without assuming that the parties’ interests in assets are or should be different from those determined by common law and equity.
41The Court must be satisfied that it is just and equitable to make an order adjusting existing property interests. That requirement is readily satisfied in most cases, including this one. Both parties initially sought orders to alter existing property interests. They have been separated for years, are no longer living in a marital relationship and neither proposes ongoing common use of property.
42In determining what orders will be just and equitable, the Court’s power is not confined by any “steps” or “stages”. Having said that, a Court will satisfy the legislative requirements if it identifies and values the assets and liabilities of the parties (to the extent the evidence permits), takes into account their respective contributions (including contributions to any assets which have ceased to be owned by them), assesses the factors in s 79(4)(d) to (g) of the Act (to the extent they are relevant), and considers whether the proposed orders are just and equitable.
43The Court is required to consider the respective contributions of the parties, both financial and non-financial, holistically over the whole period to trial. That does not lend itself (other than in an atypical case) to a strictly mathematical approach. The holistic approach to the assessment of contributions accommodates the wide range of factual scenarios dealt with by the Court.
44There is no presumption that, even over the course of a long marriage, the contributions of the parties are to be regarded as having been equal. There is no requirement for an entirely discrete consideration of the impact of initial financial contributions, nor that the contributions of the parties be quantified at a particular past moment in time, whether by reference to the date of commencement of cohabitation or for that matter the date of separation.
45Nothing in the Act requires the Court to express in percentage terms its assessment of contributions, or its assessment of the factors in s 79(4)(d) to (g), although that is often convenient and practical. Similarly, nothing in the Act requires the Court to allocate a percentage entitlement of the property to each party.
The relief sought by the parties
46In her Form 1 application filed on 12 August 2016, the wife sought orders in the following terms:
1.The Applicant be appointed sole trustee for the sale [Property A].
2.The proceeds of the sale are to be applied:
(a)firstly, to pay all costs, commissions and expenses of the said sale;
(b)secondly, to discharge the caveat;
(c)thirdly, 65 percentum there of the net proceeds to the Applicant solely.
3.If the property is not sold via the bailiff auction on 5 September 2016, then the Applicant forthwith sign all documents and do all things necessary to list the property for sale on the open market through [a local real estate agency] and that the real property be forthwith sold (“the sale”) and the proceeds of the sale be applied pursuant to paragraph 2 above.
4.Pending the completion of the sale the Applicant have the sole right to occupy the real property.
5.The Applicant shall do all acts and sign all documents necessary to arrange an orderly sale of the said property in accordance with these orders.
6.The Applicant is indemnified against all other caveats and deficits associated with the real property that the Respondent is solely liable for.
47In his Form 1A response filed on 19 August 2016, the husband confirmed his opposition to all of the orders sought by the wife, and sought orders in the following terms:
1.That [MS GREEN] sign over [Property A] to me, the only person that has contributed to the purchase of the property and paid for it.
2.[MS GREEN] remove herself from [Property A] and leave all of my personal property at that address, inside my home.
3.[MS GREEN] be restrained from entering the property except to see our children and to attend family gatherings.
4.THE APPLICANT PAY all of the court costs and any other costs awarded by the court.
48As set out earlier in these reasons, prior to his departure from the trial, the husband sought and was granted leave to amend the relief he sought. In short, he simply sought the dismissal of the wife’s application, on the grounds already summarised.
49After the husband left the trial, during the course of her opening statement, the wife indicated that she hoped to be able to raise finance to pay out the liabilities to the City and other outstanding debts apparently owed to the Water Corporation, and then seek the transfer of the property into her sole name. It became clear that she had not advanced any plans to seek the necessary finance beyond obtaining what she described as “preapproval” for a loan of $300,000 prior to a recent change in her employment, nor had notice in any formal sense being given to either the City or to Company A, being parties whose interests might be affected by the proposal she foreshadowed.
50I explained the potential issues arising from those circumstances and from the fact that the husband had not had notice of any proposed amendment to the relief sought by the wife prior to taking his decision to depart the trial. I explained to the wife that it was open to her to seek to adjourn the proceedings in order to file an amended application and effect appropriate service of it. On reflection, she decided not to seek any amendment to the relief sought in her initiating application.
51The other matters before the Court were the Form 2 application of the wife filed on 3 November 2017, and the husband’s response to that application filed on 14 November 2017.
52In her Form 2 application, the wife sought orders in the following terms:
1.The Applicant be appointed sole party for all negotiations with property trustee, the [City A Council] (herein after known as the ‘property trustee’), for the sale of [Property A] (herein after known as the ‘property’).
2.The proceeds of the sale of the property are to be applied:
(a)firstly, to pay all costs, commissions and expenses of the said sale;
(b)secondly, to discharge the outstand debt owed to the [City A];
(c)remaining funds to be held on trust for the parties in a jointly owned Interest bearing account until further Order of the Court as to the division of the proceeds.
3.Both parties are restrained and an injunction is hereby granted restraining them from in any way directing or requesting that the funds be disbursed unless by way of Order of the Court or filing of a Minute of Consent.
4.Pending the completion of the auction, the Applicant, in negotiations with the property trustee, have the sole right to occupy the real property.
5.The Applicant is indemnified against all other caveats and deficits associated with the real property that the Respondent is solely liable for.
53In his Form 2A response, having confirmed that he did not agree to any of the orders proposed by the wife, the husband sought orders in the following terms:
1.That the Court orders, the Applicants application for Orders be STRUCK OUT.
2.The Applicant and the lawyer [Ms G] be Charged by the court for Attempting to Pervert the Course of Justice by her verbal submission to court to get an Interim Order.
3.The Applicant, her lawyer, the Executive Officers of [City A] and [AQ] be Bound over to STAND TRIAL for CONSPIRACY to pervert the Course of Justice, CONTEMPT of the Higher Court and FRAUD in this case.
4.Complicity in cases, [Green v Shire A], [Company A v Green] and Attorney General for WA v [Green].
5.THIS CASE BE REMOVED to a Court of Competent Jurisdiction.
Evidence relied upon at trial
54At the commencement of the hearing, I required each party to confirm the affidavits being relied upon.
55The wife confirmed that in support of her Form 1 application, she relied on her affidavits filed on 12 August 2016 and 15 June 2017, and her financial statement filed on 13 June 2017. In support of her Form 2 application, she relied on her affidavit filed on 3 November 2017.
56The husband confirmed that in support of his amended Form 1A response, he relied on his affidavits filed on 19 August 2016, 19 July 2017 and 12 September 2017, and his financial statement filed on 15 November 2017. In support of his Form 2A response, he relied upon his affidavit filed 15 November 2017.
57In addition, he relied on witness affidavits sworn by adult children of the marriage, [A], [B], [C]and [D]. He relied also on witness affidavits sworn by [Mr W], [Mr E] and [Ms A].
58A number of the husband’s witnesses did not present at court for cross-examination, notwithstanding adequate notice having been given to the husband by the solicitor then representing the wife that their attendance was required. As it transpired, the non-attendance of the witnesses did not give rise to any issue as the wife confirmed that she did not seek to cross-examine any of them.
59As will appear below, there were significant difficulties in the evidence upon which each of the parties sought to rely.
The existing interests of the parties in property
60The parties are the joint registered proprietors of Property A. There was no admissible evidence before the Court to establish the value of that property.
61In her table of assets and liabilities annexed to her papers for the judge, the wife asserted that the home had a value of $460,000. In her financial statement filed on 15 June 2017, she asserted that the property had a value of $400,000. In her submissions at trial, she asserted, apparently on the basis of a recent market appraisal, that the value of the property was $300,000.
62In his financial statement filed on 15 November 2017, the husband asserted that the value of the property was $950,000.
63The difficulty presented by the absence of evidence as to the value of the home is obvious. That said, in practical terms, the difficulty is not insurmountable in determining what order (if any) for the alteration of property interests is just and equitable, for reasons outlined further below.
64The parties were also in dispute as to the existence and value of certain other items of property. Their respective positions (to the extent they could be ascertained) are summarised in the table below:
Item of property Wife’s asserted value Husband’s asserted value Wife’s [Holden] car $19,850 NK Wife’s moped $500 NK Wife’s bank account $50 NK Husbands [Toyota] utility $1000 $1000 Husbands custom trailer $2000 $500 Husbands [Toyota] van $500 NK Husbands tools and equipment $500 NK Husbands unlicensed trailer $300 denies ownership Collectible [items] $200,000 Nil - and given to children in any event Wife’s superannuation $21,208 not denied Asserted debt owed by the City nil $2,900,000 65While in his financial statement the husband referred to the debt he asserts to be owed to him by the City as a “financial resource”, if the debt is due and payable (as asserted by him) it is clearly property.
66While he agreed the value of the Toyota utility in his possession, the husband asserted that he had not yet paid Mr W, the previous owner, the agreed purchase price in the same amount. That evidence was supported by an affidavit sworn by Mr W.
67The husband denies ownership of the unlicensed trailer. He says it is owned by Mr E, who swore an affidavit to that effect.
68The husband disputes the value attributed by the wife to the [collectible items], and says that, in any event, the [items] were given to several of the children prior to separation. His evidence in that regard is supported by evidence from the adult children.
69Given that unchallenged evidence, the absence of any evidence to the contrary, and the absence of admissible evidence as to value, I am unable to find that the husband has any collectible items of value in his possession, nor can I attribute any value to any such items he may have given away.
70Notwithstanding the strongly held beliefs of the husband, there is no evidence to support his assertion that the City owes him any money at all, let alone $2,900,000. The “statutory demand” upon which he relies has no legal basis.
71Again, there was no admissible evidence available to the Court to establish the value of the other items listed in the table above.
72The best I can do on the evidence available is find that the wife has in her possession the chattels which she has disclosed, that they are of relatively modest value, and that the husband too has chattels in his possession of relatively modest value.
73I accept the evidence of the wife as to the value of her superannuation.
74The wife asserted that she has a liability to the Commonwealth Bank in the sum of $28,341 for a personal loan, and a liability to Macquarie Bank in the sum of $23,000 for a car loan. I accept her evidence in that regard.
75The central issues remaining in determining the interests of the parties in existing property, therefore, relate to the disputed liabilities to the City and to Company A.
76The wife accepts the existence of the liabilities. As already outlined, the husband does not. His position is based on his belief as to the constitution of the courts, his belief that both the judgments as to the liabilities and the sale orders are of no effect, and his further belief that the actions taken by the City pursuant to the Local Government Act are invalid.
77The City sale order is based on a judgment against the parties in proceedings in the Local Court. The parties’ appeal to the District Court was dismissed, as was their subsequent appeal to the Court of Appeal of the Supreme Court. Their application for special leave to appeal was dismissed by the High Court.
78Even if I accepted the husband’s submissions, which I do not, it is not within my power to do anything other than accept the existence and enforceability of the debt the subject of the City sale order in those circumstances.
79The wife gave evidence in relation to the quantum of the debt to the City.
80Annexed to the wife’s affidavit was a letter dated 5 April 2017 from lawyers representing the City, quantifying the amount owed by the parties at $216,950.34 as at 31 March 2017.
81The letter set out the relevant calculations by which that figure was reached. It was asserted that the amount owing under the sale order was $44,751.47, to which were added net legal charges and costs in the sum of $119,949.15, outstanding rates and charges for the relevant period since the initial judgment was obtained in the Local Court in the sum of $36,024.94, and penalty interest of $16,224.78.
82Also annexed to the wife’s affidavit was a notice dated 7 June 2017 from the City, pursuant to Schedule 6.3 of the Local Government Act, demanding payment of the sum of $146,458.97 within three months of the date of the notice, failing which the property would be offered for sale pursuant to s 6.64.
83Also annexed to the wife’s affidavit was a notice dated 8 August 2017, to the effect that the City had taken possession of the land pursuant to s 6.64 and intended to sell it.
84A further letter dated 20 October 2017 from the City’s lawyers to the wife’s lawyers was also in evidence. In that letter, the wife was advised of the City’s intention to sell the property by auction on 7 December 2017, and of its requirement that she vacate the property by no later than 30 November 2017.
85In her updating evidence at trial, the wife asserted that the total of the debts to the City and the Water Corporation was approximately $300,000, that the auction remained scheduled for 7 December 2017, and that the City was not optimistic that the property would be successfully sold.
86At the conclusion of the trial, I advised the wife that it was open to her to apply, during the period of reservation of my judgment, to reopen and lead any relevant updating evidence, particularly in relation to the result of the auction. No application to reopen has been received.
87While the wife is prepared to concede that the total of the joint liability of the parties to the City and the Water Corporation is approximately $300,000, I note that it appears that not all of that claimed liability is in fact the subject of the relevant sale order. Rather, it appears that a significant component of the claimed liability relates to rates incurred after the initial judgment in the Local Court, legal costs and interest. The evidence provided by the parties is inadequate to enable any more precise finding; I note, however, that my analysis appears consistent with the path chosen by the City for recovery and enforcement.
88I record in any event that, pursuant to the provisions of the Local Government Act, rates and service charges together with the costs of proceedings for the recovery of them are a charge to the relevant land, and that the owners of the land are jointly and severally liable for those amounts and interest accrued. The City was entitled pursuant to s 6.56 to take action in a court of competent jurisdiction to recover the amounts owed, as well as costs of proceedings for recovery. If the amounts remain unpaid for at least three years, as is the case here, the City may take possession of the land and sell it pursuant to s 6.64.
89It is common ground between the parties that the judgment against them remains unsatisfied, and that the subsequent amounts claimed remain unpaid.
90As the wife does not dispute any aspect of the claim by the City, and the husband’s only submissions in relation to it are groundless, I conclude that the joint liability of the parties to the City is no less than the sum of $216,950.34 claimed as at 31 March 2017.
91I acknowledge that it is likely that the liability has increased in the period since 31 March 2017, and that the wife says that there is also a liability to the Water Corporation, which she could not quantify.
92The second significant liability (“[the Company A judgment debt]”) arises from the judgment against the husband in Citation omitted. In those proceedings, judgment was entered against each of the husband and [Company B] in the sum of $2,063,509.98. Subsequently, costs were also awarded against the husband and the company. The husband’s appeal was dismissed on 23 April 2012: Citation omitted.
93It is common ground that the Company A judgment debt has not been paid. Again, the wife accepts the existence and legitimacy of the liability; the husband does not. Again, it is not within my power to do other than accept the existence and enforceability of the liability even if I accepted the husband’s submissions, which I do not.
94The Company A judgment debt is the subject of the Company A sale order against Property A, as to the interest of the husband only.
95There is no evidence before me to enable an up-to-date quantification of the Company A judgment debt. For obvious reasons, that does not inhibit an appropriate assessment of what orders are just and equitable in all the circumstances given the findings already made as to the property available for division and the inevitable finding that the Company A judgment debt is in an amount no less than $2,063,509.98.
Contributions
96Given the findings already made, the determination of what orders (if any) will be just and equitable would not be usefully informed by a detailed analysis of the respective contributions of the parties, let alone an attempt to quantify those contributions in percentage terms.
97The evidence provided by the parties would not, in any event, permit such an analysis.
98On the wife’s evidence, upon which she was not cross-examined, the husband “controlled the finances” during the relationship and she was “unaware of [the] financial situation and the full debt incurred”. Regardless of the accuracy or otherwise of that evidence (and I note that it is inconsistent with the wife’s participation in the litigation with the City, in respect of which it is recorded that she made a written submission in support of the position taken by the husband), it is irrelevant to the determination I am required to make.
99Otherwise, notwithstanding that she was represented by solicitors until shortly prior to trial, the wife’s affidavit evidence in relation to the respective contributions of the parties was very limited. She said that she dealt with the “day-to-day finances involved in the running of the house” during the relationship, and that she “worked throughout the relationship in either part-time or full-time roles depending on the children’s ages and work availability”. She asserted that it was her “sole wage that paid for all the living expenses for the family and up to the date of separation”.
100Her evidence did not otherwise address the matters required to be considered pursuant to ss 79 (4)(a) to (c) of the Act.
101In his affidavit filed on 19 August 2016, the husband asserted that between June 1992 and 30 June 2003, he received an invalid pension and the wife received a carer’s pension. He said that the wife was not otherwise employed during that period. He asserted that he did some part-time work after moving to [Suburb B] in 1996, but was restricted by his injuries.
102The husband also said that he received a payout from his superannuation of approximately $103,000, but did not provide any detail as to the accumulation of that superannuation entitlement. He said further that he worked at home on his invention, asserting that “through [his] company” he “paid for the land, house and all expenses.” It was a dispute related to that invention which resulted in the [Company A] judgment.
103His evidence did not otherwise address the matters required to be considered pursuant to ss 79 (4)(a) to (c) of the Act.
104Neither party gave any useful evidence as to their respective indirect financial contributions, non-financial contributions or contributions to the welfare of the family. While the various adult children swore affidavits critical of their mother’s efforts during the marriage, and praising the efforts of their father, those affidavits (to the limited extent that they contained admissible evidence) were of no assistance to me.
105I do note the affidavit of Ms A, who said that she regularly visited the parties in the period 1993 to 1995, and that the wife did not hold a paid job during that period. During her visits over that limited period, Ms A recalled seeing the husband working on fixing vehicles, and his inventions, and observed him to care for the children.
Other matters – s 79(4) (d)-(g) inclusive
106Neither party contends that any order I might make would affect their earning capacity. There are no other relevant orders made under the Act, and there are no children eligible under the Child Support (Assessment) Act 1989 (Cth).
107The husband is aged 70 and would argue that he is in poor health. He is not presently employed. The wife is aged 48. She is employed as a [maintenance officer] working on a roster which involves her working for 13 days, followed by one day off, followed by 10 days working, followed by seven days off. She generally works 12 hour shifts, at a gross payment of $25 per hour.
108There was no evidence before me to enable an assessment of the commitments of either party necessary to support themselves or any other person. Neither party has the care of a child under the age of 18; both have re-partnered.
109The wife is not eligible for any relevant pension allowance or benefit. According to his financial statement filed on 15 November 2017, the husband is not in receipt of any income from any source.
110There is no evidence presented by either party to enable an assessment of a standard of living that in all the circumstances is reasonable, nor is there any evidence as to the financial circumstances of their cohabitation with their new partners. There is no evidence to enable an assessment of whether the duration of the marriage has affected the earning capacity of either party. There is no relevant financial agreement binding under the Act.
111Pursuant to s 75(2)(ha), the Court is required to take into account “the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant”. The orders for alteration of property interests proposed by the wife would not affect the ability of the City to recover its debt. They would have the potential, however, to affect the ability of Company A to recover its debt from the husband, given that she seeks a greater than equal share of any proceeds of sale of Property A remaining after the debt to the City is extinguished, thereby reducing the husband’s interest to which the Company A sale order attaches. I appreciate that in the circumstances that theoretical risk is unlikely to have any practical impact.
Conclusion
112For the reasons which appear above, I conclude that the liabilities of the parties to the City, and of the husband to Company A, significantly exceed the value of the Property A.
113The substantive orders sought by the wife, including her application that she be appointed as sole trustee for the sale of Property A, and the orders sought in her Form 2 application, would potentially affect the ability of Company A to recover its debt. In so far as she seeks orders appointing her as the “sole party for all negotiations” with the City for the sale of Property A, and the preservation of any funds remaining after the discharge of the debt to the City, the rights of Company A do not appear to have been considered. There is no proper evidence that Company A has appropriately been put on notice of the relevant relief being sought.
114In my view, the only appropriate order for alteration of the interests of the parties in Property A is to ensure the severance of their joint tenancy. The City’s rights against both parties will be unaffected by that step, as will Company A’s rights against the husband. In the unlikely event that following a sale of the property and discharge of the debt to the City, and any other joint liabilities, there is an amount remaining which relates to the wife’s interest in that property, her entitlement to that amount will be unaffected by any pursuit by Company A of its rights against the husband. The legal processes already in train pursuant to existing orders made in other courts can simply take their course.
115Otherwise, particularly given the paucity of evidence, it is in my view inappropriate to alter the existing rights of the parties in property other than to make orders ensuring that it is clear that they should each retain ownership of chattel property in their possession, to the exclusion of the other party, and responsibility for their individual liabilities.
116It follows that the Form 2 application of the wife and the Form 2A response of the husband should also be dismissed. It is unnecessary to further traverse the relief sought by the husband in his Form 2A response against the background of my earlier findings.
Proposed orders
117Subject to any submissions as to form, I propose to make the following orders:
(1)The joint tenancy of the parties [Property A] be and is hereby severed.
(2)The Court declares that the parties hold their interests in the said property as tenants in common in equal shares.
(3)The interest of the wife, if any, in the following vest in the husband:
(a) any chattels in the possession of the husband;
(b)any money standing to the credit of the husband in any account in a bank or other financial institution; and
(c) the husband’s superannuation, if any.
(4)The interest of the husband, if any, in the following vest in the wife:
(a) any chattels in the possession of the wife;
(b)any money standing to the credit of the wife in any account in a bank or other financial institution; and
(c) the wife’s superannuation.
(5)All outstanding applications and responses otherwise be and are hereby dismissed.
I certify that the preceding [117] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable CourtAssociate
15/3/2018
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