H and H

[2008] FCWAM 2

JURISDICTION : MAGISTRATE COURT OF WESTERN AUSTRALIA - 150

TERRACE ROAD

ACT : FAMILY LAW ACT 1975

LOCATION : PERTH

CITATION : H and H [2008] FCWAM 2

CORAM : FLEMING M

HEARD : 5 DECEMBER 2007

DELIVERED : 14 MARCH 2008

FILE NO/S : PT 1464 of 2007

BETWEEN : H Applicant/Wife

AND H

Respondent/Husband

Catchwords:

Property Settlement - Contribution by Third Party - Future Needs

Legislation:

Family Law Act 1975, s 75(2), s 79(4)(A)(B)(C)(D) to (G)

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr Dawson
Respondent : Self Represented Litigant

Solicitors:

Applicant : Dawson Davies
Respondent :

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

Hickey & Hickey and the Attorney General for the Commonwealth of Australia (Intervener) (2003)

1 The application before this Court for determination is that of the wife filed

24 March 2007 wherein she seeks orders in respect of property settlement. She did not attempt to quantify her exact entitlement in that application.

2On 20 August 2007 she filed a Minute of Proposed Orders wherein she sought the following orders:

1.The monies held by [the settlement agent] trust for the parties be disbursed:

a) in discharge of the parties debt to Statewest Credit Union;

b) the residue to the Applicant

2.Any interest of the respondent in the [Holden motor vehicle], the [Toyota motor vehicle] and the [Motor Scooter] vest in the applicant.

3.Each party otherwise retain the good, chattels, savings, superannuation and other assets in their respective possessions.

Transition of this Matter through this Court

3The husband resides [overseas]. The wife experienced difficulties in serving the documents on the husband. On the first Court date the wife brought an application in a case seeking orders dispensing with personal service of the documents on the husband and on 1 May 2007 the Court dispensed with personal service on the following basis:

1 Personal service upon the Respondent [Mr H], of the form 1 application filed by the Applicant [Mrs H] on 24 March 2007, be dispensed with on condition that the Applicant emails a copy of the Form 1 application, supporting documents, and a sealed copy of this order to the Respondent’s [email address] or by posting the same by International Express Post to [his overseas residential address]

2 The said Form 2 application filed by the Applicant on 24 March 2007 otherwise be dismissed.

4The solicitors for the wife filed an affidavit on 20 July 2007 which confirms that the documents, together with the copy of the Court order of 1 May 2007 were emailed to the respondent in accordance with the orders of 1 May 2007.

5The matter was listed for a Case Assessment Conference (financial) which occurred on 22 June, 2006. The husband did not attend at that conference nor was there any request to attend by way of electronic communication. It was quite clear that he was aware of the proceedings given the comments of the Registrar conducting the conference who indicated that a series of letters had been received by the Registry in relation to this matter from the husband.

6 The Registrar made the following orders on that day:

1 Permission is granted to uplift the correspondence from the respondent and from [Ms P D B] to be returned with this conference file note to the respondent.

2 Within 14 days the respondent file and serve upon the applicants solicitors a Form 1A response and a Form 13 financial statement.

3 This matter is adjourned to the General List for directions on

17 July 2007 at 10 am with the Presiding Magistrate requested to consider the question of leave to the applicant to proceed on an undefended basis in the event that the respondent fails to comply with the orders made today.

7On 17 July 2007 there was still no appearance by or on behalf of the respondent and he had not filed any documents in accordance with the directions of the Registrar of 22 June 2007. On that basis the Presiding Magistrate made the following orders:

1 Affidavit of proof of substituted service to be filed within 21 days.

2 Applicant at leave to proceed on an undefended basis.

3 Applicant to file trial affidavits within 28 days.

4 Adjourned to General List 24 August 2007 at not before 12 noon.

8The Presiding Magistrate also directed that the Registrar write to the respondent advising him of the consequences of his continued failure to participate in these proceedings. That letter stated as followed:

“I refer to the above matter and confirm that this matter came on before

Magistrate Fleming on 17 July 2007.

The matter was further adjourned to 24 August 2007 at not before 12 noon.

The Magistrate made orders that this matter proceed on an undefended basis on the ground that you have failed to file any documents in response to the application.

The presiding Magistrate also requested that I contact you and advise you that unless you appear on the day or have representation and comply with the orders then the matter may proceed on an undefended basis and in your absence.

If you are in any doubt as to your position please take independent legal advice.”

9 This letter was also emailed to the respondent care of his email address.

10 On 24 August 2007 submissions were made on behalf of the wife on the basis of the matter proceeding as an undefended matter in accordance with earlier orders. The wife filed her trial affidavit and also a minute of proposed orders on 20 August 2007. These documents had been forwarded to the respondent.

11 There was some urgency in relation to the payment of a relatively small debt of the parties’. The presiding Magistrate on an interim basis made an order releasing an amount of $3,296.80 to Statewest Credit Society to extinguish that debt. The moneys were paid out of the proceeds of sale of the former matrimonial home that were being retained by the settlement agents, Peel Settlements.

12 Unfortunately due to an administrative error the husband had in fact filed a trial affidavit and statement of financial circumstances by facsimile prior to the hearing. These documents had not been placed on the Court file. The documents were apparently received in this Registry on 22 August 2007 with the hearing having taken place on 24 August 2007.

13 On that basis and when I became aware of the fact that the matter was in fact not “undefended” I relisted the matter to give the husband the opportunity of putting forward submissions in support of his case.

14 To that end the Registry Manager wrote to the husband and had the matter relisted. The letter dated 6 September 2007 advised the husband of the relisted date of

28 September 2007 at not before 11.30am.

15 On 28 September 2007 at the procedural listing the Court made the following orders:

1 Both parties to file and serve chronologies no later than 7 days prior to hearing.

2 Both parties to file Papers for Judicial Officer no later than 14 days prior to the defended hearing.

3 The applicant’s costs be reserved.

4 The proceedings otherwise be adjourned to 5 December 2007 at

10.00am and be transferred to the Family Court of Western Australia.

16 At the final hearing date on 5 December 2007 the husband did not appear, did not seek to appear by way of electronic communication, did not submit a chronology or file any submissions in relation to this matter. The matter, therefore, proceeded on the basis of the submissions on behalf of the wife. These were in addition to the earlier submissions that had been made by counsel on behalf of the wife on 24 August

2007. In the absence of submissions and a chronology the husband’s case was effectively included in his somewhat brief affidavit and statement of financial circumstances.

Background

17 The parties met in April 2004 and were married on 14 October 2005. The respondent husband was residing [overseas] and the parties met over the Internet. He came to Australia on a tourist visa. The parties returned [overseas] 11 June 2004 and shortly thereafter the marriage began to deteriorate.

18 Whilst [overseas] the wife discovered that she was pregnant. The parties then separated and the wife returned to Australia in July 2004. The child [L] was born [in] February 2005.

19 The parties reconciled and the husband returned to Australia only to find that he had to again return [overseas] because his spouse visa had not issued. In April/May of that same year the visa was granted and he came back to Australia.

20 The parties purchased a property in [a suburb of Perth] in September 2005. The purchase price was $247,000. The funding of this property was as follows:

• Moneys borrowed from the National Australia Bank secured by mortgage.

• A first homeowner’s grant.

• An amount of $25,000 from the husband’s parents.

21 In addition to the former matrimonial home the parties also purchased the following items:

•A [2002 Holden] for $12,000 the purchase price of which was consolidated on the mortgage on the home.

• A [1987 Toyota] for $2,000.

• In January 2006 a [Motor Scooter] for $2,800 which was funded through

Statewest Credit Society.

22 The applicant deposes to a tumultuous relationship that was punctuated by episodes of violence. Apparently a violent episode occurred and the parties finally separated on 22 June 2006.

23 The respondent husband returned [overseas].

24 After separation the former matrimonial home was placed on the market for sale and sold for the sum of $360,000.

25 The wife deposes to difficulties caused and attributed to the respondent husband in relation to the settlement which caused a delay in the settlement and incurred additional costs in respect of the mortgage.

26 Ultimately the property was sold and [new settlement agents], were engaged to deal with the matter.

27 The net proceeds of sale after expenses were $99,784.88 and are currently being retained by [the settlement agents]. As stated, however, an amount of $3,296.80 has been taken from that account to settle the parties’ debt with Statewest Credit Society.

28 Currently the husband continues to reside and work [overseas]. The wife is residing with her parents with the child in her sole care. She deposes to the fact that she has not received any child support from the respondent since the date of his return [overseas].

The Law

29 The authorities are quite clear how a court must approach a property settlement that has been dealt with pursuant to s 79 of the Family Law Act 1975. The decision of Hickey & Hickey and the Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 details the four step approach the Court must take:

•The Court must make findings as to the identity and value of the assets and liabilities of the parties.

• Identify and assess the contributions made by the parties within s 79(4)(A)(B)

and (C).

•Identify and assess the s 75(2) factors, together with any matters relevant pursuant to s 79(4)(D) to (G).

• Consider whether the proposed orders are both just and equitable.

Assets and Liabilities

30 There is little argument as to the asset and liability position in this matter save and except in relation to the moneys provided by the husband’s parents.

Assets

• Proceeds of sale of the home now $96,488.08 (together with interest)

• [Holden] valued at $9,000.

• [Toyota] valued at $1500.

• [Motor Scooter] valued at $2000

• Contents of the matrimonial home valued at $5,000.

31 The Court will rely on the above values/appraisals that have been provided by the wife. The husband has not put forward any evidence to suggest that the above figures are not correct.

32 Given that the loan to Statewest Credit Society has been repaid the only apparent outstanding loan may be the moneys due to the husband’s parents. The wife deposes to the fact that she believes this was a gift to the parties. The husband, on the other hand, clearly indicates that he believes that it was a loan from the parents that was to be repaid in due course.

33 For reasons to be advanced later in this decision I do not believe insofar as assessing the parties’ entitlements that it is significant as to whether or not it is a loan or a gift.

34 The wife’s position is quite clear in relation to this matter. She states categorically that it was a gift to both parties.

35 The husband’s evidence has not been properly put. The only evidence that has been adduced in relation to this alleged debt to the parents are contained in the annexures to the husband’s facsimiled documents, being letters from the parents confirming that they were of the view that this was a loan and certainly not a gift.

36 At no time have they endeavoured to properly file affidavit evidence in support of their claim and similarly they have not attempted to intervene in these proceedings to protect their interests. Given that I am not required, in my view, to make a determination as to whether or not there is a debt owing to the parents and it is clearly a matter that they would need to pursue if they wished to rely on this “debt”. The only significance to these proceedings, therefore, relate to the contribution aspect of these moneys which I will comment on in due course.

37 In saying that, therefore, the net asset position in this matter is $113,988.08 (plus interest). The “debt” has not been included as a liability.

Financial Contributions

Initial Contributions

38 The wife concedes at paragraph 33 of her affidavit sworn 20 August 2007 that she made no substantial initial contribution to the marriage other than through an entitlement to a grant of funds as a joint first homebuyer.

39 Again it is not contentious that the respondent did provide the sum of $25,000 to enable the initial purchase of the former matrimonial home. As stated herein whether or not this was a gift or a loan is immaterial for the purpose of this determination because it is clearly a contribution that has been made on behalf of the respondent husband through the auspices of his parents.

Contributions during the Marriage

40 During the course of the relationship the applicant wife was engaged as a full time mother and home provider. She indicates that she also assisted with the maintenance and improvement of the home. She did not engage in employment in this relatively short relationship.

41 The respondent husband, on the other hand, was fully engaged in employment during the course of the relationship.

Post Separation Contributions

42 There is little argument in this area given that the property was sold as soon as possible after the parties separated.

43 The applicant wife, however, does contend that due to to certain actions of the husband that the settlement of the property was delayed and caused a loss of

approximately $10,000 by way of further payments on the mortgage. She attributes this to the failure of the respondent to sign an authority for the initial settlement agents to act and then failing to sign transfer documents. As a result of these disputes the initial agents needed to be replaced and she takes the view that these actions of the husband have contributed to a loss and reduction of the parties’ assets in the sum of

$10,000.

44 The husband in his affidavit simply denies the fact and does not embellish or provide any information to assist the Court in making a determination in this area.

Contributions to the Family and non financial Contributions

45 The wife deposes that she provided domestic roles within the relationship and was the principal carer of the child. In addition she indicates that she assisted in the improvement and maintenance of the home.

CONCLUSIONS ON CONTRIBUTION

46 The matters that a Court must take into account in relation to contribution are set out in s 79(4)(A), (B) and (C) of the Family Law Act 1975.

47 The parties were married on 14 October 2005 and separated on 22 June 2006.

They had previously co-habited from February 2005. The relationship was punctuated by periods of separation. On that basis it is quite clear that this was a relationship of a very short duration.

48 The only real asset that the parties acquired during the course of the relationship was the matrimonial home. It is conceded by the wife that she made little or no direct financial contribution to the purchase of this property other than being eligible to a First Home Buyer’s Grant.

49 Similarly during the course of the relationship she did not work and therefore did not directly provide a financial stimulus.

50 The husband worked throughout the course of this relationship and therefore provided the financial wherewithal to enable the mortgage to be met and other living expenses to be paid.

51 I have already touched on the issue of the moneys from the husband’s parents.

Whether or not this is regarded as a gift or a loan is not material. What is material is the fact that without this initial financial input then it is likely that these parties would not have been able to acquire the asset pool that they currently enjoy.

52 On that basis it is quite clear that the husband has made the greater direct contribution to the acquisition of these assets.

53 I cannot, however, ignore the indirect contributions of the wife as a homemaker and provider for the child.

54 On the evidence available to the Court therefore I find that the contributions in relation to the matrimonial assets should be determined on a 70/30 basis in favour of the husband. In making this assessment I have also taken into account the husband’s actions (or inactions) in relation to the delay of settlement of the former matrimonial home.

Section 75(2) Factors

55 In determining property matters s 79 of the Family Law Act 1975 also requires the Court to consider the matters raised under s 75(2) of the Family Law Act 1975 insofar as they are relevant to the proceedings.

56 Accordingly I make the following findings:

(a) The age and state of health of each of the parties.

57 Not significant.

(b) The income property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

58 The husband is employed and states his occupation as [tradesman]. The wife on the other hand is not working and is the sole carer of [the young child] who is almost three years of age. She does not therefore, have an ability at this stage to support herself and obtain gainful employment given her role as a carer.

(c) Whether either party has the care and control of a child of the marriage who has not attained the age of 18 years

59 The wife has the day to day and long term responsibilities in respect of this child and it may well be that there will be little input in this area from the husband.

(l) The need to protect the party who wishes to continue that party’s role as a parent

60 As stated the wife has elected to maintain her role as a parent to this child which is an option that is open to her given the age of the child.

(na) any child support under the Child Support (Assessment) Act

1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

61 It is clear on the evidence to this point that the husband has not paid child support.

62 Given the logistics and given the fact that he has not provided financially for the child to this point the Court can draw a fair conclusion that obtaining proper child support in future for this young child may prove difficult.

63 Given the age of the child (almost 3) it is therefore beholden on the wife to provide solely for this child for an extended period of time and this is a factor that must be weighed appropriately in this particular case.

(o) any fact or circumstance which in the opinion of the Court the justice of the case requires taken into account

64 The Court has already referred to the issue of child support.

65 What the Court must also take into account is that the asset pool in this matter is relatively small. The wife, on the other hand, will have to meet the costs associated with this child over the next perhaps 15 years and on that basis the actual asset position does not put her in a strong position. The Court must place appropriate weight on the twofold issue of lack of child support and a relatively small asset pool. To do appropriate justice in this case the Court must consider these two aspects carefully.

The Final Outcome

66 As stated previously the asset pool in this particular matter is not particularly significant. It would also appear that neither party has anything by way of superannuation entitlements.

67 The Court must assess the initial contributions of the husband by way of direct financial contribution but in addition the Court must also look to the future and to the wife’s employability and the fact that she is likely to have the sole responsibility in relation to the financial support of this child. Whilst the husband has not given any real detail as to his support of the child into the future one can only surmise that the fact that he has not paid any child support to this point is perhaps a pointer as to the likely future.

68 Accordingly and on the evidence available to the Court I believe that the adjustment for the s75(2) factors should be an amount of 45% in favour of the wife. This would substantially reverse the percentage position viz a viz the conclusion in respect of contribution. This would amount to an overall division of assets between the parties as to 75% to the wife and 25% to the husband.

69 I make the comment that whilst this would appear to be a relatively large percentage adjustment one must consider the relatively limited pool of assets and the likely lack of financial support into the future for this young child.

Orders

70 Accordingly I propose the following orders: As and by way of settlement of property:

1 From the proceeds of sale of the former matrimonial home as retained by [the settlement agent] the husband is to be paid an amount of

$28,497 together with any interest accrued on that account in the ratio of 25% to the husband and 75% to the wife.

2 The balance of the proceeds of sale of that fund be paid to the wife.

3The husband’s interest in the following do vest in the wife: (a) [the Holden ] motor vehicle

(b) [the Toyota] motor vehicle

(c) [the Motor Scooter]

(d) the contents of the former matrimonial home

The only other orders that I would make would be to dismiss the applications and prior to making that order I would hear from counsel or parties in relation to the issue of costs.

I certify that the preceding [70] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Secretary