Haberfield & Berne

[2021] FCCA 2160

FEDERAL CIRCUIT COURT OF AUSTRALIA

Haberfield & Berne [2021] FCCA 2160

File number(s):

MLC 1099 of 2021

Judgment of:

JUDGE BENDER

Date of judgment:

26 August 2021

Catchwords:

 FAMILY LAW – PARENTING – the Mother’s application for parenting orders – the Mother and child exposed to extreme family violence – the child has spent no time with the Father post-separation – the Father has been charged with breaches of an intervention order protecting the Mother and the child – the Father has not filed any material and has not participated in proceedings.

HELD – leave granted to proceed on an undefended basis – orders made for the Mother to have sole parental responsibility for the child, the child to live with the Mother and spend time with the Father as agreed between the parties – the time the child spends with the Father be subject to such conditions as determined by the Mother.

FAMILY LAW – PROPERTY – the Wife’s application for property orders – the Husband has not filed any material and has not participated in proceedings.

HELD – leave granted to proceed on an undefended basis –  the former matrimonial home to be transferred into the Wife’s sole name and she refinance the mortgage – the parties otherwise retain assets in their name and possession including motor vehicles – there be no order as to superannuation  

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 75(2), 79(2), 79(4)

Cases cited:

 Stanfordv Stanford [2012] HCA 52
Hickey& Hickey [2003] FamCA 442
Bevan & Bevan [2013] FamCAFC 116

Kennon & Kennon [1997] FamCA 27

Date of hearing:

26 August 2021

Place:

Bendigo

Counsel for the Applicant:

Ms Mallett

Solicitor for the Applicant:

Nickie King Legal

Counsel for the Respondent:

The Respondent did not appear

ORDERS

MLC 1099 of 2021

BETWEEN:

MS HABERFIELD

Applicant

AND:

MR BERNE

Respondent

ORDER MADE BY:	JUDGE BENDER
DATE OF ORDER:	26 AUGUST 2021

THE COURT ORDERS THAT:

1.The child, X, born in 2016 (“X”), live with the Mother.

2.The Mother have sole parental responsibility for X.

3.X spend time with the Father at times as agreed in writing with the Mother and subject to any conditions imposed by her.

4.Within 30 days of the date of the Final Orders, the Husband do all such acts and things as to transfer his interest in the property at B Street, Suburb C, in the state of Victoria, being the whole of the land more particularly described in the Certificate of Title Volume …, Folio … (“the real property”), to the Wife at the Husband’s expense;

5.Contemporaneously with the transfer of the real property set out above, the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the subject property and replace it with a mortgage to the Applicant acquiring the property alone.

6.Unless otherwise provided for in these Orders, the Applicant shall be solely entitled to the exclusion of the Respondent, to all legal and beneficial ownership of property in her name and possession, including but not limited to:

(a)monies standing to her credit in any financial institution accounts in her sole name;

(b)her motor vehicle, Motor Vehicle 1, registration number …;

(c)her Super Fund D superannuation entitlements held in her name; and

(d)furniture, furnishing and personal effects in her possession.

7.The parties retain all their right title and interest in and to their superannuation entitlements and have no further claim on such entitlements of the other.

8.The Respondent and Applicant do all acts and things and give all consents and execute all documents and writings necessary to give effect to these orders.

9.In the event of default by the Respondent with respect to the order 8 herein, Pursuant to s.106A of the Family Law Act 1975 (Cth) the Applicant Wife and/or her solicitor be authorised to execute all documents in the name of and on behalf of the Respondent Husband as are required to give effect to the transfer into the Applicant Wife’s name of B Street, Suburb C, Certificate of Title Volume …, Folio …), including but not limited to:

(a)all Duties Online forms required to be signed by the Respondent relating to a transfer in ownership of B Street, Suburb C; and

(b)all PEXA authorisations required to give effect to the electronic settlement for transfer of ownership in B Street, Suburb C.

10.Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:

(a)Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;

(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

(c)Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;

(d)All insurance policies are to become the sole property of the owner as named;

(e)Each 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; and

11.Any joint tenancy of the husband and wife in any real or personal estate is expressly severed

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Haberfield & Berne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BENDER:

INTRODUCTION

1. This is the Mother’s application for both parenting and property orders arising from the parties’ relatively short relationship that commenced in 2015 and concluded in September 2019.

2. The Mother filed an Initiating Application seeking both property and parenting orders on 3 February 2021. The matter came before the Court for the first time on 20 May 2021 before Registrar Sudholz. On that occasion there was no appearance by the Father, he having been personally served with all relevant material.

3. On 20 May 2021, Registrar Sudholz adjourned the matter for an interim defended hearing on 25 May 2021, having made notations that if the Father did not appear on the adjourned date and file answering material the matter may be listed on an undefended basis.

4. When the matter came before me on 25 May 2021, the Father failed to file any material and did not appear. All requirements for service upon the Father of the orders made on 25 May 2021 had been attended to by the Mother’s solicitors. The Mother filed an affidavit in which she deposes to having had a recent conversation with the Father in which he made it very clear he had no intention of participating in these proceedings.

5. On 25 May 2021, I made orders adjourning the matter to 24 August 2021, directing the Father to file answering material, directing the Mother to file further material in the event the Father failed to file material and noting that if the Father failed to file that material or appear on the adjourned date the Mother would have leave to seek the matter be finalised on an undefended basis. I also made orders for the Mother’s solicitors to serve the Father with the orders made and the Mother’s further documents filed to ensure that the Father was afforded procedural fairness. 

6. The parties have a young son X, born in 2016 (“X”) who is four years of age.

7. When the matter was before me on 25 May 2021, I made interim orders that the Mother have sole parental responsibility for X, that X live with the Mother and that there be FaceTime or telephone communication between the Father and X on a day on the weekend.

8. The matter came before me on 24 August 2021. The Father had not filed any answering material and he did not appear. There had been some glitches in the Mother’s solicitor complying with the orders in relation to service. There were also some difficulties with the contents of the affidavit that was filed by the Mother in that it did not properly cover the matters that would have enabled me to fully determine whether the property orders sought by the Mother were just and equitable.

9. I directed the Mother’s solicitor to put the Father on notice that the matter had been adjourned to today and that if he failed to participate today then I would proceed to deal with the matter and that the orders that were being sought by the Mother in the Amended Initiating Application filed and served by her on 17 August 2021 could be made on the adjourned date.

10. I also asked the Mother’s Counsel to provide to me with a brief memorandum setting out the basis upon which it was submitted that I could make the orders as sought by the Mother. That very helpful document has been received from the Mother’s Counsel.

11. I am now satisfied that the Father is fully aware of the listing today and the orders being sought by the Mother. Given the Father’s complete failure to participate in these proceedings in any way from the outset, the communication that he has had with the Mother in which he has made it very clear that he is not going to participate in these proceedings and in circumstances where it is my understanding he is currently outside the jurisdiction of Victoria because he has outstanding criminal matters that relate to violence against the Mother which he is avoiding, it is quite clear that this matter can and should be dealt with today on a final basis and I intend to do so.

    BACKGROUND

12. The Mother was born in 1991 and is 30 years of age. She is a public servant by occupation. It is my understanding that she has re-partnered but she is not currently living with her new partner.

13. The Father was born in 1992. He is currently 28 years of age. He has previously engaged in various forms of employment but what he is currently doing or where he is currently living is completely unknown to the Mother and to the Court.

14. The parties commenced cohabitation in 2015, married in 2019 and separated on 15 September 2019. As noted, they have a young four year old son, X.

15. The parties’ relationship was marred by the Father’s violence to which the Mother and X were exposed and by his use of illicit substances and alcohol. It is fair to say that it was a very difficult, scary and unhappy relationship as a result of the behaviours of the Father.

16. The parties purchased their former matrimonial home at B Street, Suburb C (“the property”) in 2017 for $265,000. The purchase was funded by the first home owner’s grant of $7,500, $7,500 of joint savings and a mortgage. The Father’s mother provided $20,000 which was subsequently repaid to her either in part or in full during the course of the relationship.

17. During the relationship and since separation the Mother has paid all outgoings in relation to the property, save for $138.50 which the Father contributed to the rates on one occasion. 

18. It is the Mother’s evidence that the Father made a significant negative contribution to the property as a result of extensive damage done by him just prior to separation in June 2019. Not only did the Father damage walls and fixtures, it was discovered after separation that he had broken bathroom pipes which caused flooding that required the property to be restumped.

19. The Mother received $24,000 by way of insurance to assist in the cost of the repairs to the property. The total cost of the repairs exceeded the insurance received by the Mother and she has been responsible in meeting those additional costs and ensuring that the property was returned to a habitable state for her and X. In order to be able to do this she withdrew $10,000 from her own superannuation to meet that shortfall.

20. Additionally, during the relationship the Father drew down $10,000 on the mortgage secured on the property to purchase a motorbike which he retained. The Mother has been left with that debt as it now forms part of the liability over the property.

    PARENTING

21. In relation to parenting matters, Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the matters the Court must take into account when making parenting orders. The overriding requirement is that any order be in the best interests of X.

22. The matters to be taken into account in determining what is in the best interests of X are those set out in s.60CC of the Act.

23. In this matter the overriding consideration is that the Court must make orders that ensure X is not exposed to violence or risk. As set out in this judgment both the Mother and X were subjected to severe violence during the course of the relationship and after separation likely due to the Father’s use of illicit substances and alcohol. The Father is currently out of Victoria in order to avoid outstanding charges against him for serious breaches of the intervention order that the Mother has for her protection and for the protection of X.

24. There is no evidence before the Court that the Father has addressed his substance abuse, alcohol issues and his anger and violence. I note that the information from the Department of Fairness, Families and Housing confirms that they have concerns in relation to the Father’s behaviour and they have expressed their belief that he is a risk to X.

25. The Mother is seeking orders that she have sole parental responsibility for X, that he live with her and that any time X spends with his Father be as agreed between the parties in writing and subject to any conditions or requirements as determined by her.

26. It was distressing to read in the Mother’s affidavit that X continues to be impacted by the violence to which he was exposed at the hands of his Father. He still experiences a serious and visceral response to any suggestion he spends time with his Father. I am comforted in the knowledge the Mother will ensure that X receives all professional assistance he needs to deal with his trauma because a four year old should not have to deal with those demons alone.

27. In all these circumstances I am satisfied that the only orders that are available to the Court that are in X’s best interests are those that have been proposed by the Mother.

    PROPERTY

    The Law

28. Section 79 of the Act defines the Court’s powers in determining applications for property settlement after the breakdown of a marriage. Section 79(2) of the Act provides that:

    (2) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

29. Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:

    (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

    (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

    (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

    (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and

    (e)       the matters referred to in subsection 75(2) so far as they are relevant; and

    (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and

    (g) 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.

30. The matters to be taken into account under s.75(2) of the Act are as follows:

    (a)        the age and state of health of each of the parties; and

    (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; and

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

    (d) commitments of each of the parties that are necessary to enable the party to support:

    (i)        himself or herself; and

    (ii)       a child or another person that the party has a duty to maintain; and

    (e)       the responsibilities of either party to support any other person; and

    (f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

    (i) any law of the Commonwealth, of a State or Territory or of another country; or

    (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

    and the rate of any such pension, allowance or benefit being paid to either party; and

    (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

    (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

    (ha) 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; and

    (j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

    (k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

    (l) the need to protect a party who wishes to continue that party's role as a parent; and

    (m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

    (n) the terms of any order made or proposed to be made under section 79 in relation to:

    (i)        the property of the parties; or

    (ii)       vested bankruptcy property in relation to a bankrupt party; and

    (naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

    (i)        a party to the marriage; or

    (ii) a person who is a party to a de facto relationship with a party to the marriage; or

    (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

    (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

    (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; and

    (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

    (p) the terms of any financial agreement that is binding on the parties to the marriage; and

    (q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

1. The High Court in the matter of Stanfordv Stanford [2012] HCA 52 held that, prior to making orders that adjust any interest in the property in which the parties have an equitable interest, in accordance with the provisions of the Act, the Court must first determine that it is just and equitable to make such orders. The High Court in Stanford (supra) held that in the majority of matters, the decision as to whether it is just and equitable for the Court to make orders adjusting the parties property interests is resolved by the breakdown of the marital relationship and the mutual desire of both parties for orders altering their respective property interests.

2. Whilst there is not a mutual application before the Court by the parties to alter their property interests, it is apparent that in circumstances where the only asset of the parties is held jointly and there has been a breakdown of the relationship, it is just and equitable that orders be made that enable a finalisation of the parties’ financial relationship so that they can move on independently of each other.

3. I am therefore satisfied that it is appropriate I should be addressing orders that alter the parties’ equitable property interests.

4. Prior to the decision in Stanford (supra), a trial judge would in most cases follow the four-step approach in determining how to alter property interests between the parties as articulated in the Full Court decision of Hickey& Hickey [2003] FamCA 442. The four-step process in Hickey is as follows:

   (a)firstly, the court will determine the nature of the property pool and attribute valuations;

   (b)secondly, the court will consider the contributions of the parties to the property pool, including direct and indirect financial contributions, and non-financial contributions, often in the form of homemaker and parent;

   (c)thirdly, after considering entitlements based on contributions, the court determines whether any further adjustments to either party’s entitlement is proper given the considerations under s.90SM(4) of the Act;

   (d)finally, the court stands back and considers whether the proposed division of property is just an equitable pursuant to s.90SM(3) of the Act.

5. The High Court in Stanford (supra), and subsequently the Full Court in the matter of Bevan & Bevan [2013] FamCAFC 116, neither approved nor disproved the four-step approach. The Full Court in Bevan (supra) noted the four-step approach should not be rigidly followed but it does provide a useful guide to a Court when it is determining the division of property between the parties once the Court is satisfied that such a division is just and equitable.

6. I am satisfied that this is a matter where the four-step approach of Hickey (supra) is the appropriate approach to take to determine a just and equitable division of property between the parties.

   Assets and Liabilities

7. In circumstances where the Father has failed to participate in the proceedings and make full and proper disclosure, the Court’s capacity to have a complete understanding of the parties’ assets and liabilities is difficult.

8. Given the information contained in the Mother’s affidavits and provided by her Counsel, I will adopt the table of assets and liabilities included in the memorandum prepared by the Mother’s Counsel as it is a reasonable reflection of the parties’ assets and liabilities:

ASSETS	VALUE
B Street, Suburb C	$340,000-$360,000
Wife’s Motor Vehicle 1	E$5000
Wife’s CBA Bank account	E$500–1000
Husband’s car (Motor Vehicle 2)	E$50,000
Total Assets	$416,000 (higher figures used)
LIABILITIES	VALUE
B Street, Suburb C	$236,000
Husband’s speeding fines placed in Wife’s name	$420
Husband’s car loan (Bank E)	E$48,000
Total liabilities	$284,420
Net Non-Super Asset Pool	$131,580
SUPERANNUATION	VALUE
Husband superannuation	Unknown
Wife’s superannuation – Super Fund F	$17,000

1. In summary, there is the property worth approximately $340,000 to $360,000. The current mortgage on the property is $236,000. The Father has a motor vehicle with a value of $50,000 and a car loan of $48,000 for which he is solely responsible.

2. On the information provided there is a small property pool of only $131,580. The Mother has a small amount of superannuation and the extent of the Father’s superannuation is unknown as a result of his failure to participate in these proceedings.

   Contributions

3. I have set out the manner in which the property was acquired in paragraph 16 of this judgment.

4. The deposit for the purchase of the property was met jointly by the parties. The Mother was the party responsible for meeting all outgoings in relation to the property both during the relationship and subsequently save for one payment made by the Father as detailed in paragraph 17 of this judgment.

5. The Father made a negative contribution to the property when he seriously damaged it just prior to separation. Post-separation the Mother has paid all outgoings in relation to the property. She has also had to pay for that proportion of the repairs to the damage to the property done by the Father not covered by insurance.

6. The Mother almost solely performed the role of parent and homemaker during the relationship. She has been solely responsibility for X’s care both emotionally and financially given that the Father has had almost no involvement with X and has provided no financial support. Given the parenting orders that I have made and the Father’s circumstances it is the Mother who will have full responsibility for X practically, emotionally and financially in the future.

7. It is argued that the level of violence to which she was subjected during the relationship is such that it reaches the threshold set out in Kennon & Kennon [1997] FamCA 27 whereby her contributions during the relationship were made considerably more onerous because of the impact on her of that violence.

8. It is therefore submitted on behalf of the Mother that the Court should be satisfied that the overwhelming contribution to the asset pool was made on behalf of the Mother.

   S75(2) Factors

9. The Mother works on a part-time basis and her income fluctuates depending on the availability of hours and her responsibility for X. She argues that her ability to work full-time is limited because of those responsibilities. She notes that she receives no support in relation to X from the Father.

10. Whilst the Mother will be able to re-finance the current mortgage securing the property into her name, she has capacity to increase the mortgage. If she is required to sell the property to effect a payment to the Father she would not again have the opportunity to own a property for herself, and more importantly, for X.

11. The Mother therefore argues that there should be a considerable adjustment in her favour.

    JUST AND EQUITABLE

12. It is submitted on the Mother’s behalf that the just and equitable outcome in this matter is that this Court make orders that see the Mother retain most of the property available for division. The Mother is seeking an order that the property be transferred to her, that she refinance the mortgage on the property and that otherwise each of the parties retain that which is in their possession and be responsible for any liabilities relating thereto.

13. This would see the Mother keep her old car, the small amount of superannuation that she has and the home and its contents which will enable her to properly care for X.

14. The Father would retain his car, his superannuation and whatever other property he owns.

15. I am satisfied the Mother has made a considerably greater contribution than has the Father both financially and as parent and homemaker. Those contributions were made more arduous as a result of the violence to which she was subjected during the relationship.

16. The Mother’s earning capacity is impacted by her responsibilities as the sole carer of the parties’ son X.

17. The Mother has received no financial support for X from the Father since separation and is unlikely to receive any support from the Father, either financially or practically going forward.

18. Section 79(1) of the Act provides the Court can make such orders it considers appropriate altering the parties’ property interests as it considers appropriate for the benefit of parties to the marriage or a child of the marriage (my emphasis). The Mother is able to refinance the current mortgage on the property into her sole name. She cannot however borrow any further monies. If she were required to do so, the property would have to be sold and she is unlikely to ever again be in a position to own a home for herself and, more importantly, own a home in which she can raise X.

19. For all these reasons I am of the view that the orders proposed by the Mother are a just and equitable outcome as they reflect her superior contributions, her greater s.75(2) adjustments and benefit both herself and very relevantly X. Accordingly property orders will be made in those terms.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender.

Associate:

Dated:       7 October 2021