HATTON & AIMES

[2014] FamCA 1218

FAMILY COURT OF AUSTRALIA

HATTON & AIMES [2014] FamCA 1218

FAMILY LAW – PROPERTY – De facto relationship – Where the wife makes an application for final orders regarding property – Where the wife has been the primary carer of the child – Where the husband had not attended court on multiple occasions – Where the husband requested multiple extensions of time – Where the husband has not filed any material – Where an adjustment is made in favour of the wife – Section 90SM Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth) s 4AA, s 90SM, s 106A

Kennon v Kennon (1997) FLC 92-757

APPLICANT: Ms Hatton

RESPONDENT: Mr Aimes

FILE NUMBER: SYC 4190 of 2013

DATE DELIVERED: 15 May 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 8 May 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Sydney Criminal & Family Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance for the Respondent

Orders

1. That the applicant wife shall retain the assets currently in her possession together with her superannuation entitlements.

2. That the applicant wife shall bear the liabilities she presently holds being her credit cards and the GE Money loan.

3. That the parties are to do all acts and things necessary to have the net proceeds of sale of the properties situate at and known as C Street,  Suburb D and W Street, Town L distributed as to sixty-five per cent (65%) to the applicant wife and thirty-five per cent (35%) to the respondent husband.

4. That the parties shall do all acts and things necessary and give all consents and execute all such documents in writing to give effect to these Orders in the time periods prescribed.

5. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

6. That the respondent husband shall pay one half of the applicant wife’s costs of and incidental to these proceedings.

7. That the costs payable by the respondent husband are assessed by me to be $36,015.31 representing one half of the applicant wife’s total costs of $72,030.62.

8. That these costs are to be paid from the proceeds of sale of the properties, C Street,  Suburb D and W Street, Town L, prior to the distribution of any of the proceeds to the respondent husband.

9. That the respondent husband has liberty to apply to set aside Order 6 within twenty-eight (28) days of today.

10. That all applications and cross applications be and are hereby dismissed.

11. That all issues be removed from the Active Pending Cases List.

12. That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4190 of 2013

Ms Hatton

Applicant

And

Mr Aimes

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. These are proceedings under s 90SM of the Family Law Act 1975 (Cth) (“the Act”). I have had regard to the following documents:

   a)Initiating application filed on 24 July 2013;

   b)An amended initiating application of 27 November 2013;

   c)I have read the affidavits of the applicant sworn on 23 July 2013, 28 August 2013, two affidavits of 27 November 2013 and one of 8 May 2014;

   d)I have had regard to the applicant’s financial statement of 6 September 2013 and a letter from Gadens Lawyers to which I will refer shortly.

3. No material of any kind has been filed by the respondent and he has not filed a response. 

4. Pursuant to orders made by a registrar, documents were served upon the respondent by post.  That relevant documents were posted to the last known address of the respondent is established by the affidavits of Mr H and the two affidavits of Mr R. 

5. After service by post the respondent still did not appear.  The matter was listed for an undefended hearing on 2 December 2012.  On that day the respondent emailed the court seeking an adjournment of the proceedings and referring to the documents that had been served upon him in November.  The matter was adjourned and listed before a registrar on 3 March 2014 and there was no appearance by the respondent.  The matter was again listed for hearing on 30 April 2014. 

6. There was no appearance by the respondent.  He was telephoned on the number that he had sent to the court the previous year. He informed the court that he was unaware of the hearing and wished to participate.  Accordingly the matter was adjourned to 8 May 2014.  The respondent was informed that if he did not appear on 8 May 2014 I would proceed to hear the case in his absence.  He did not appear on 8 May 2014 and his phone did not answer when telephoned from court. 

7. As the applicant had a further short affidavit the prudent course was to ensure the respondent was served with it.  I adjourned the matter to today and gave some directions for service of the affidavit and the time and notice of the adjournment date. I otherwise heard the evidence of the applicant and her submissions and reserved my decision.  The respondent has not appeared today.  I am satisfied that the direction as to service of the affidavit and the notice of the adjourned hearing date has been complied with. 

8. Accordingly the matter will proceed in the absence of the respondent and I will proceed to deliver reasons forthwith.

9. The parties’ relationship commenced in 1993.

10. In 1998, according to the written outline of the applicant, the evidence not appearing to disclose the date, the parties purchased the property at C Street, Suburb D in the State of New South Wales (“the D property”).  They commenced to reside there.

11. In 1999 the parties had a son N. 

12. In 2010 the parties purchased W Street, Town L in the State of Queensland (“the L property”).

13. The parties separated on 6 November 2011. 

14. During the period from 1993 to 2011 the parties lived together, shared household expenses and chores, had a joint bank account, raised their child together, went on holidays together and generally lived together as a couple. I am satisfied for that period they were in a de facto relationship as defined by s 4AA of the Act.

15. The applicant seeks a division of property under s 90SM of the Act.

16. First, it is necessary to establish the property of the parties.  In addition to the real estate properties the wife has a car valued at $10 000. She has superannuation entitlements of $23 348.60 and $3 979.81.  She has a life insurance policy in the sum of $50 000.  There is no evidence that she has a present entitlement to that sum so that will accordingly not be taken into account.

17. The husband also has a superannuation entitlement but what it is is unknown as the respondent did not file a response or provide any disclosure. His assets and liabilities are unknown.

18. In 2010 both properties became the subject of mortgages to F Mortgages Pty Limited.

19. Following separation the regular instalments due under the mortgage were not paid.  On 2 October 2013 the mortgagee commenced possession proceedings in New South Wales in relation to the D property and on 1 October commenced proceedings in Queensland in relation to the possession to the L property in Queensland.

20. On 25 November 2013 the applicant consented to judgments for possession of both properties and judgment against her in the sum of $519 014.26. 

21. Apparently the D property has been sold.  The evidence does not disclose the sale price.  Today a letter from Gadens Lawyers was tendered which indicates that on 6 May 2014 the sale of the L property was completed in the sum of $210 000.

22. Having regard to the way in which the property was owned by the parties and the relationship which has now ended it is just and equitable to consider making an order dividing the property given the separation of the parties.

23. Using the values given to the property by the mother and doing what I can with the somewhat confusing evidence, the property known to the court of the parties is as follows.

24. For convenience I will deal with the D and L properties as if they had not been sold and will use as the liability of the mortgagee the amount to which the applicant consented to have judgment entered against her.  I do not include the accounts as the evidence indicates that at September 2013 the balances were minimal.

25. I have included the L property at the mid-point of the values as I did for the D property.  It now appears that the property has sold for $15 000 less.  I will turn to that shortly. 

26. Accordingly the assets of the parties known to the court consists of:

    a)D property valued at $500 000

    b)L property valued at $225 000

    c)Car $10 000

    d)REST Superannuation $23 348 and other superannuation $3 980

    TOTAL $762 328

27. The liabilities are:

    a)Mortgage of $519 014

    b)The applicant’s Commonwealth Mastercard $10 134

    c)GE Credit Card $5 197

    d)GE Finance Loan $4 539

    TOTAL $538 884

28. This gives net assets to the parties of some $223 444. 

29. It is then necessary to consider the parties’ financial and non-financial contributions to the property and their contributions to the welfare of their property.

30. The wife said in her affidavit filed 27 November 2013:

    6.1.1[The husband] and I previously shared domestic duties and financial payments in relation to bringing up [the child] and payments of the mortgages, rates, electricity bills, telephone bills and all other bills and outgoings.  However, since our de-facto relationship ended I have been [the child’s] sole carer and have carried all of the financial burdens in relation to [the child’s] care, welfare and education. 

    6.1.2[The child] has lived with me and has been in my sole care since my de-facto relationship with [the husband] finally broke down.  [The husband] continues to live at [the D property] rent free whilst I have been forced to rent a house.

31. There was no other evidence of the financial contributions.  The applicant gave evidence that she also occupied the role of homemaker and parent.

32. On this limited evidence having regard to the length of the relationship I am satisfied that the contributions of the parties to the date of the separation as to the financial and non-financial contributions as to the property and the contributions as to the welfare of the property to be approximately equal.  Since the date of separation neither party has contributed to the acquisition of property.  The wife left the D property in November 2011 and the respondent remained living there until evicted by the mortgagee.  He paid neither the mortgage nor rent on the property but had the benefit of living there.  On the other hand the applicant had to rent premises at a total cost of $40 032. 

33. The applicant has had the sole care and support of the child, financial and otherwise since separation.  Although the respondent has been assessed to pay child support in the sum of $59.33 he has not paid any or any other support for the child.

34. Both of these factors call for an adjustment in favour of the applicant of 5 per cent.  From the child’s birth certificate it appears that he applicant is presently 57 years old and the respondent 42 years old.  The applicant is working as a personal trainer.  It is obvious that the respondent has many more years of productive working life ahead of him than does the applicant.  The effect of any orders that I will make will not as far as the evidence discloses affect either party’s earning capacity.  There was no suggestion of ill health on the part of the applicant, the health of the respondent remains unknown.

35. The applicant continues to have the sole care and support of the child, who is now 15, that involves expenses of $223 per week solely for him.  The applicant also has the responsibility to support her daughter C aged 35 who is severely disabled at a further cost of $211 per week. 

36. The applicant does not have the benefit of a pension and has modest superannuation entitlements.  Any order that will be made is unlikely to restore the applicant’s previous standard of living.  The relationship was quite lengthy. The applicant will continue her role as a parent whilst working.  Taking all of the above into account a further adjustment in the sum of 25 per cent is appropriate. This takes into account the applicant’s care and support of the child and the two years benefit the respondent had living in the D property not paying the mortgage and not paying a sum for rent.  On the above figures it is a sum of $67 000 which is a significant amount in the context of these parties.

37. In the absence of any disclosure by the respondent I am entitled to take a bolder than usual approach.  I am satisfied that the adjustment is fully justified. 

38. Thus the applicant is entitled to 70 per cent of the net property pool which on the above figures is a sum of $156 410.  She has a benefit of retaining assets of $37 328 and has liabilities of $19 870 or net retention of assets of $17 456. 

39. If this is deducted from $156 410 the net result is 62 per cent.  The actual figures of the sale price of D are unknown although the figure for the L property is now known and is some $15 000 less than the figure that I have taken into account. Notwithstanding, given the lack of disclosure by the respondent, I am satisfied that that remains the appropriate figure which for convenience I will round to 65 per cent. 

40. The applicant sought an adjustment in her favour as the consequence of domestic violence as the court has noted in cases such as Kennon v Kennon (1997) FLC 92-757 where such adjustments are made in exceptional circumstances.  It is necessary for the applicant in such cases to establish to the satisfaction of the court that domestic violence made the contributions made by the applicant more onerous.  I am not satisfied that the evidence establishes that in this matter.

41. Taking all these matters into account I am satisfied that the order is appropriate as it is just and equitable. 

Costs

1. The applicant sought an order for costs. The evidence established that the respondent has deliberately avoided service which has caused the applicant to incur unnecessary expense. She is not well able to bear that expense on her income and the assets available to her. These two factors are sufficient to justify a departure from the usual position stated by s 117 of the Act. As this application would have been necessary in any event, but as it has been made unduly more expensive by the conduct of the respondent, the appropriate order is the respondent pay one half of the applicant’s costs as assessed or agreed.

2. The applicant asked for me to quantify the costs just been ordered.  The evidence establishes that the applicant’s lawyer has rendered a bill in the sum of $70 632.62 and that she has directly paid disbursements of $1 398 total costs of $72 030.62.  The issue is whether I should assess the costs of those figures or refer the matter for assessment.  I am not in a position to assess whether those costs are reasonable by going through the invoices one by one.  I do note however that as I have said earlier the applicant has been put to a lot of trouble and expense by reason of the complete disregard of the respondent for these proceedings.  His past conduct is at best an indicator what is likely to occur in the future. It is more likely than not that the exercise of assessing costs will be set by the same difficulty and expense that has marked the present proceedings. 

3. Given the modest sums the subject of this case I do not see why the applicant should be put to that further trouble and expense.  Accordingly I vary the previous order I just made by replacing the words as assessed or agreed by the words assessed by me to be $36 015.31 being one half of the applicant’s total costs of $72 030.62.

4. I order that these costs are to be paid out of the proceeds of the sale of the D and L properties prior to the distribution of any of the proceeds due to the respondent. 

5. Accordingly I make the orders set out at the commencement of this judgment.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 15 May 2014.

Associate: 

Date:  23 March 2015