FAMILY COURT OF AUSTRALIA
| HARPER & PINT | [2011] FamCA 771 |
| FAMILY LAW – DE FACTO RELATIONSHIPS – PROPERTY SETTLEMENT – Where the parties were in a de facto relationship for a short period of time – Where there are two young children from the de facto relationship – Where there is a modest asset pool – Where the father declared bankruptcy before the final hearing – Where the mother’s contributions were greater than the father’s contributions – Where the mother will have greater needs in the future than the father. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| C & C [2005] FamCA 429 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC ¶93-143 Russell & Russell (1999) FLC ¶92-877 Milankov and Milankov (2002) FLC 93-095 Townsend and Townsend (1995) FLC 92-569 |
| APPLICANT: | Mr Harper |
| RESPONDENT: | Ms J Pint |
| FILE NUMBER: | MLC | 8349 | of | 2009 |
| DATE DELIVERED: | 24 August 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATES: | 28, 29, 30 and 31 March; 1 April; 2 and 11 May 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | In person |
Orders
IT IS ORDERED THAT:
On Friday 26 August 2011 at 3 pm the father deliver the car, … Holden registration number …, to the mother with sufficient petrol so that the petrol tank is at least 1/5th full, along with all sets of keys to the car and any service history documentation, to a car space next to Flagstaff Gardens northbound on or near the corner of William Street and La Trobe Street, Melbourne.
Contemporaneously with Order 1, the father obtain and sign all documents necessary to transfer all his right, title and interest in the car to the mother and deliver all such documents to the mother.
Contemporaneously with Order 1, the father leave the following items on the back seat of the car for the mother to retain:
(a) 1 television receiver; and
(b) 1 Apple laptop computer.
Within 30 minutes of compliance by the father with Order 1, the father collect the DVD of his friend’s wedding, stored in room 8 on level 3 of this Registry of the Family Court of Australia and the mother be and is hereby entitled to all chattels and things deposited in that room pursuant to Orders or directions of the Court.
The mother contact my Associate … on … within 14 days to organise a suitable time for the collection of the items of property referred to in Order 4.
Pursuant to s90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest held by the father, Mr Harper (born … December 1976) member no. …, in the H Superannuation Fund, the mother, Ms J Pint (born … November 1980) shall be entitled to be paid 100% of that splittable payment and that there be a corresponding reduction to the entitlement the father would have received in the…
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- AGLC
- Harper and Pint [2011] FamCA 771
- Case
- [2011] FamCA 771
- Decision Date
CaseChat Overview and Summary
The court was required to determine various issues, including the transfer of specific assets, the disposition of chattels, and the division of superannuation interests. A key issue was the impact of proposed property orders on the income-earning capacity of both parties, particularly the father's ability to maintain his current employment following the transfer of his motor vehicle. The court also considered the father's financial conduct and the mother's need for financial support due to her care of young children.
Justice Bennett reasoned that the mother's financial circumstances and her need for maintenance outweighed the father's need to retain his particular motor vehicle, despite the potential impact on his employment. The court applied principles relating to the division of property and financial resources in de facto relationships, considering factors such as the duration of the relationship, the impact on earning capacity, and the needs of the parties, especially in relation to child-rearing. The court also took into account the father's history of income concealment and the likelihood of artificially low child support payments.
The court made detailed orders regarding the transfer of a motor vehicle, its keys, and service history to the mother, along with specific chattels. It also ordered the transfer of 100% of any splittable payments from the father's interests in two superannuation funds to the mother, effective from a specified time after service on the trustees. All other extant applications were dismissed, and the matter was removed from the docket. Exhibits and subpoenaed documents were to be returned after one month, unless an appeal was lodged.
Orders
Orders of the court
IT IS ORDERED THAT:
1.
On Friday 26 August 2011 at 3 pm the father deliver the car, … Holden registration number …, to the mother with sufficient petrol so that the petrol tank is at least 1/5th full, along with all sets of keys to the car and any service history documentation, to a car space next to Flagstaff Gardens northbound on or near the corner of William Street and La Trobe Street, Melbourne.
2.
Contemporaneously with Order 1, the father obtain and sign all documents necessary to transfer all his right, title and interest in the car to the mother and deliver all such documents to the mother.
3.
Contemporaneously with Order 1, the father leave the following items on the back seat of the car for the mother to retain:
(a) 1 television receiver; and
(b) 1 Apple laptop computer.
4.
Within 30 minutes of compliance by the father with Order 1, the father collect the DVD of his friend’s wedding, stored in room 8 on level 3 of this Registry of the Family Court of Australia and the mother be and is hereby entitled to all chattels and things deposited in that room pursuant to Orders or directions of the Court.
5.
The mother contact my Associate … on … within 14 days to organise a suitable time for the collection of the items of property referred to in Order 4.
6.
Pursuant to s90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest held by the father, Mr Harper (born … December 1976) member no. …, in the H Superannuation Fund, the mother, Ms J Pint (born … November 1980) shall be entitled to be paid 100% of that splittable payment and that there be a corresponding reduction to the entitlement the father would have received in the H Superannuation Fund, but for this Order.
7.
Order 6 has effect from the operative time and the operative time for this Order is four (4) business days after the service of sealed orders on the Trustee of the H Superannuation Fund.
8.
Orders 6 and 7 bind the said Trustee of the H Superannuation Fund.
9.
The mother be responsible for service of this Order on the Trustee of the H Superannuation Fund forthwith.
10.
Pursuant to s90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest held by the father, Mr Harper (born … December 1976) member no. …, in the Z Superannuation Fund, the mother, Ms J Pint (born … November 1980) shall be entitled to be paid 100% of that splittable payment and that there be a corresponding reduction to the entitlement the father would have received in the Z Superannuation Fund, but for this Order.
11.
Order 10 has effect from the operative time and the operative time for this Order is four (4) business days after the service of sealed orders on the Trustee of the Z Superannuation Fund.
12.
Orders 10 and 11 bind the said Trustee of the Z Superannuation Fund.
13.
The mother be responsible for service of this Order on the Trustee of the Z Superannuation Fund forthwith.
14.
Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.
15.
All exhibits tendered in these proceedings be returned (to the party on whose behalf the exhibit was tendered) at the expiration of one calendar month unless an appeal is lodged.
16.
The Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner at the expiration of one calendar month unless an appeal is lodged.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Maintenance payable by the father to the mother would ease the mother’s burden. It is not envisaged at this stage that the mother will retrain.(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; The mother’s income earning capacity is seriously curtailed by reason of her care of the two very young children of the relationship. (n) the terms of any order made or proposed to be made under section 90SM in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; The mother is entitled to be registered as a proprietor of the C property which is worth less than is owed by way of encumbrances and monies advanced by her family.(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; The father will be subject to administrative child support assessments. However, I am satisfied that he is likely to try to minimise and hide some income as the mother was able to demonstrate he has done already. The father is particularly conscious of any earnings which he receives in excess of $48,000 per annum being able to be attached, as to 50%, by his bankruptcy trustee. It is likely that the mother will receive some child support. However, it is unlikely that the father will declare all of his earnings so the child support is likely to be artificially low. Pursuant to s 90SM(4)(d), I take into account the effect of any proposed order on the income earning capacity of the parties. The proposed orders do not impact adversely on the mother. However, the mother seeks an immediate transfer of the father’s car to her. The father’s evidence is that the loss of his motor vehicle will mean that he will “have to give notice to work”. I accept that there is a distinction between having to offer a resignation for a particular position and not being employable. The father asserted that, because he works on-call casual in the security industry, he is expected and required to do a range of shifts including over weekends, covering five sites with finishing times varying between 10.00 p.m., 11.00.p.m. and 3 a.m. Some weekend shifts start at 6.00 a.m. He said, for instance, that a C site shift concludes at 11.30 p.m. after which there are no trains or buses. On the other hand, the mother says that the father has had an extended period in which to accumulate funds with which to buy a car and that, if he has to resign, which she doubts, he will get another job. Frequently, final property orders do impact on income earning capacity of a party. I accept that a transfer of the father’s car to the mother will make it more difficult for him to transport himself, particularly if he cannot acquire a new car, and may render it impracticable for him to remain in his current position or working his current roster. It may reduce his income significantly and do so by more than any net saving between paying for public or other transport and being relieved of car running expenses. However, I am satisfied that the necessitous circumstances of the mother outweigh the father’s need to keep this particular car.