Hyatt & Pinnock
[2024] FedCFamC1F 52
•8 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hyatt & Pinnock [2024] FedCFamC1F 52
File number(s): BRC 8606 of 2022 Judgment of: BAUMANN J Date of judgment: 8 February 2024 Catchwords: FAMILY LAW – PROPERTY – Modest pool – Orders made that achieve justice and equity for both parties Legislation: Family Law Act 1975 (Cth) ss 75,79 Cases cited: Best & Best (1993) FLC 92-418
Clauson & Clauson (1995) FLC 92-595
Hickey & Hickey (2003) FLC 93-143
Stanford & Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 25 January 2024 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person ORDERS
BRC 8606 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HYATT
Applicant
AND: MS PINNOCK
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
8 FEBRUARY 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That the Respondent wife immediately relinquish in favour of the Applicant husband all her right, title and interest in and to the property situated at C Street, Suburb D in the State of Queensland, more properly described as Lot … on Survey Plan … with Title Reference … (“the Suburb D property”).
2.That by 28 March 2024, the Applicant pay to the Respondent the sum of sixty thousand dollars ($60,000) (“the cash payment”) and do all acts and sign all documents reasonably necessary to discharge the Respondent from all liability due and owing to B Finance in respect of the mortgage facility currently encumbering the Suburb D property.
3.That simultaneously with the payment described in Order 2 above and no later than 28 March 2024, the Respondent is to provide the Applicant vacant possession, remove all personal items and ensure that the Suburb D property is left in a clean and tidy condition.
4.If the Applicant is unwilling or unable to pay to the Respondent the said cash payment pursuant to Order 2, then the parties shall have liberty to relist the matter before Justice Baumann, to determine orders necessary to facilitate a sale of the Suburb D property and distribution of the nett proceeds of sale in accordance with the reasons for Judgment delivered 8 February 2024.
5.That by 28 March, the Respondent return to the Applicant, if the items are in her possession, the following items:
(a)The Applicant’s teddy bear;
(b)The Applicant’s personal photo album;
(c)The Applicant’s wedding ring;
(d)The Applicant’s work tags; and
(e)Electronic device.
6.That immediately from the date of these Orders, the Respondent transfer and/or relinquish in favour of the Applicant all her right, title, and interest in and to the following assets:
(a)Motor Vehicle 1;
(b)All bank accounts in the Applicant’s sole name;
(c)All furniture and chattels in the Applicant's sole possession; and
(d)All superannuation entitlements held by the Applicant with Superannuation Fund 1 and Superannuation Fund 2 save for the superannuation split in favour of the Respondent pursuant to Order 8 hereof.
7.That immediately from the date of these Orders, the Applicant transfer and/or relinquish in favour of the Respondent all his right, title, and interest in and to the following assets:
(a)Motor Vehicle 2;
(b)Motor Vehicle 3;
(c)All bank accounts in the Respondent’s sole name;
(d)The partial property settlement previously paid to the Respondent on 13 October 2022;
(e)All furniture and chattels in the Respondent's sole possession (including items used by the child); and
(f)All superannuation entitlements held by the Respondent.
8.That pursuant to s 90XT(1Xa) of the Family Law Act 1975 (Cth) (“the Act”):
(a)whenever a splittable payment becomes payable in respect of the Applicant's interests in Superannuation Fund 2 (member number …). the Trustee shall pay to the Respondent an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”), being a base amount equal to $190,000; and
(b)that there be a corresponding reduction to the entitlement the Applicant would have had in Superannuation Fund 2 (member number …), but for this Order.
9.That Order 8 hereof have effect from the operative time.
10.That the operative time shall be four (4) business days from the date of service of a sealed Order upon the Trustee of Superannuation Fund 2.
11.That these Orders shall bind the Trustee of Superannuation Fund 2 to observe the Trustee obligations set out under the Act and the Regulations, once procedural fairness has been offered to the said Trustee.
12.That each party shall share equally. the fees incurred to effect the transaction referred to in Order 8 of these Orders, following which each party shall bear their own costs of and incidental to their respective superannuation interests.
13.That the Trustee of Superannuation Fund 2 be at liberty to apply to this Honourable Court on seven (7) days’ notice to the other.
14.That simultaneously with the transactions referred to in Order 8 hereof, the Respondent shall provide to the Trustee of Superannuation Fund 2 with a Notice of Election in writing as the full details of the superannuation fund into which the payment made to her, is to be transferred.
15.That save and set out above, the parties acknowledge and agree that each party shall be solely entitled to the exclusion of the other to all other property and chattels of any nature and kind and in the possession of each party as of the date of these Orders and for this purpose:
(a)bank accounts are deemed to be in the possession of the person whose name appears on the bank records;
(b)insurance policies are deemed to be in the possession of the payer,
(c)superannuation entitlements are deemed to be in the possession of the person who is named as the worker, whose age or working future provides the conditions for payment of such entitlements;
(d)each party will indemnify the other and keep the other indemnified in respect of any debts incurred by each of them subsequent to the date of separation; and
(e)unless specifically stated to the contrary, reference in these Orders to discharging any party (“the liable party”) from any liability under these Orders shall include an obligation on the party effecting the discharge to also discharge the liable party from any personal guarantee or other ancillary security attaching to the liable party or any assets to be retained by the liable party.
16.That both parties shall sign all documents and do all things necessary to give effect to the terms of these Orders.
17.That the Applicant and Respondent shall have liberty to apply to the Federal Circuit and Family Court of Australia for further orders and directions in respect of the enforcement and/or interpretation of these Orders upon the giving of seven (7) days’ notice in writing to the other (including as identified under Order 4 of these Orders).
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 the pseudonym Hyatt & Pinnock has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J
The trial conducted in this matter relates to at modest marital property dispute between the Applicant husband, Mr Hyatt (now aged 48 years), and the Respondent wife, Ms Pinnock (now aged 37 years). The parties commenced cohabitation in 2010 in Tasmania. The wife is a Country E citizen with permanent residential status in Australia. She had arrived in Australia in approximately 2009. From cohabitation in 2010 until separation (under the one roof) in approximately August 2021, the parties lived at various times in Australia and in Country E, where they were married in City F in 2012.
The parties were blessed with the birth of a daughter, X, in 2013. She is currently 10 years of age. As I will explain, the father has no current relationship with the child. After separation, in 2022, the father brought proceedings in the Federal Circuit and Family Court of Australia (in relation to both parenting and property proceedings). Those proceedings were transferred to Division 1 as a result of the mother maintaining a desire to relocate with the child to Country E. The litigation was strenuously contested, and a number of orders were made, and family report received to try and understand why the child having a relationship with the father was proving difficult.
The husband has always maintained that his lack of relationship with his daughter is because the mother has prevented the relationship developing. The mother rejects such an assertion. When the matter came before the Court on 9 November 2023, it having been adjourned from an earlier date because of the failure of the mother to appear before the Court, and when on that date (6 September 2023) the Court ordered the appointment of an Independent Children's Lawyer and for the mother to appear on the next occasions, the Court was invited to make final parenting orders on 9 November 2023. The father was legally represented. The mother was unrepresented, and the Independent Children’s Lawyer appeared and supported the final parenting orders.
At that time, the final order was made in circumstances where the father had not been able to develop a relationship with his daughter for some time; and the mother expressed an urgent desire to return to her country of birth, Country E, with the child. The orders made on that day indicate that the Court was concerned that if the mother relocated, as she intended, immediately, seeking to resolve the property proceedings in any sensible practical way would have been problematic, and an injunction was made restraining the mother from leaving Australia until the property proceedings were concluded. As it transpired, and sadly, after 9 November 2023, the wife’s mother in Country E passed away.
Accordingly, the matter was relisted urgently before me at the mother’s request, and on 5 December 2023, when the Court was informed by the mother that she wished to return to Country E urgently with the child so that she could participate in the culturally normal grieving period of several days after the death of a parent. She asked to be relieved of the restraint about leaving the country. Accordingly, as the Orders reflect, she was permitted to do so having given an undertaking to the Court that she would return to Australia for a trial which I set to take place for no longer than two hours on 25 January 2024. At the same time, I made trial directions for the parties to file material, which they partly complied with.
As the evidence of the wife now identifies, she did not return to Country E, as she could not afford the airfares. Furthermore, she has now decided (as her mother has passed and that being, the home in which she was to reside with the daughter on relocation), she will no longer relocate to Country E and intends to remain in Australia with the child. How that affects the father’s desire to maintain a relationship with the child is uncertain and not a matter for me to decide, there being no pending parenting applications.
The parties were sworn in at the bar table, and I asked various questions so as to glean the evidence necessary to make orders in this property case, as the parties’ trial material was very deficient. They at least did file a completed financial statement.
COMPETING PROPOSALS
The husband had produced a proposed minute of order (it appears to me likely to have been prepared by a lawyer) which he filed on or about 18 January, and it was marked Exhibit 1. The effect of the order was that he wishes to retain the property currently occupied by the wife and the child known as C Street, Suburb D (hereafter, called the “Suburb D property”), and that he would pay to the wife the sum of $43,000 and ensure that he accepted all responsibility for the current mortgage. He required the wife to vacate the property upon payment of the said sum. He sought certain items, many of which the wife now says she does not hold, including a teddy bear to which the husband was sentimentally attached.
Additionally, the husband seeks that there be a splitting order, whereby $70,000 be split from the husband’s superannuation and paid to the wife into an approved fund. I have no evidence that the trustee of Superannuation Fund 2 has been offered procedural fairness. Otherwise, the husband’s position was that the wife and husband would retain the other items in their possession and control at this stage.
The wife had not at the hearing, despite directions to do so, articulated a position in relation to property adjustment. The best that she had put before the Court was a brief statement in her response filed 4 November 2022 that: “…leave be granted to particularise final property orders upon receipt of a full disclosure or assets owned by both parties shall split the pool 70/30”. I took this to mean that the wife sought that the pool be divided 70 per cent to herself and 30 per cent to the husband.
After the hearing was complete, and on the public holiday of 26 January 2024, the wife filed an affidavit at 11.35am. It would be inappropriate for any such evidence to be considered, after the hearing was completed and Judgment reserved, without a formal reopening. I do not know whether the wife ever served the husband with her new affidavit.
Accordingly, I have not read the affidavit or considered its contents. Whilst I accept the wife (like the husband) was unrepresented, I gave no indication at the hearing on 25 January 2024 that I was inviting further evidence or submissions.
As already indicated the husband had filed a draft minute of order sought, but the wife’s position at the hearing was not clear, save for the general position above. However, on 26 January 2024, the wife filed a draft order, replicating the terms of the husband’s draft with the following variations namely:
(a)The wife seeks a payment of $100,000 whilst the husband proposed a payment of $43,000 (clause 2).
(b)The wife seeks return “of documents belong to respondent that Application stolen in [Suburb D] property on 08/05/2022” (as per original).
(c)The wife seeks possession of items in the child’s bedroom.
(d)At clause 7, the wife seeks an equal division of any monies in the combined bank accounts.
(e)For the first time, at proposed order 8, the wife seeks spouse maintenance of $595 per week “until respondent finish study and get a job in the purpose of the respondent can support herself again” (as per original).
(f)The wife seeks a superannuation splitting order in her favour of $188,951.70 as opposed to the husband’s proposed splitting order of $70,000.
I do not find there is an unfairness in recording what the wife articulates she seeks – noting that the Court is not bound by the parties’ proposals, but by what orders do justice and equity. I return later in these Reasons to the assertion (in the absence of any formal application for spouse maintenance) by the wife for an order for spouse maintenance.
As I will mention shortly, the parties ultimately agreed on the nett pool of interests such that the wife’s claim for a 70 per cent division meant, in effect (if there was a non-super pool and a superannuation pool), that the husband would be required to pay the wife $65,700 to retain the home and would be required to make a superannuation splitting order to the wife of $188,951.
PRINCIPLES
Shortly stated, but more concisely and elaborately described in the Full Court decision in Hickey & Hickey (2003) FLC 93-143, in a property settlement case, the Court must adopt a well-known four-step process, essentially:
(a)to identify the pool of assets and liabilities generally, and usually at the time of hearing;
(b)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4);
(c)to consider the factors as are relevant contained in s 75(2) of the Act; and
(d)finally, consider the ultimate analysis to determine whether the order the Court proposes to make is just and equitable to both parties.
I am satisfied that it is just and equitable pursuant to section 79(2) of the Family Law Act to make an order (see Stanford & Stanford (2012) 247 CLR 108).
THE PROPERTY POOL
Exhibit 2 represents an agreed pool of assets which I incorporate below:
OWNER
DESCRIPTION
VALUE
Husband
C Street, Suburb D (single expert value at December 2022)
$360,000
Husband
Motor Vehicle 1
$9000
Wife
Motor Vehicle 2
$6000
Wife
Motor Vehicle 3
$20,000
Wife
Partial property settlement
$10,000
Husband
Bank accounts
$16,874
$421,874
Husband
Home loan – B Finance
$276,499
Nett non-superannuation pool
$145,375
Superannuation
Husband
Superannuation Fund 1
$32,639
Husband
Superannuation Fund 2
$237,292
Superannuation pool
$269,931
CONTRIBUTIONS
Both parties agree that they maintained traditional roles in their relationship from 2010 until separation, at least under the one roof, in August 2021 – a period of some 11 years. That is, the husband was the “breadwinner”, and the wife was the primary carer and homemaker. I am satisfied that the husband generally worked throughout the relationship in the primary sector, contributing his income to the family resources, which included their living expenses. At times, the parties had the benefit of living in accommodation provided by family members (particularly for a period in Country E).
The wife accepts that since the time of the birth of X in 2013, she has not worked outside the home. She had devoted herself to the role of homemaker and parent to the child. I accept in the course of the relationship that the husband, particularly since approximately 2013, has been a mobile worker. Generally, on a roster of 14 days on and 7 days off.
For some of that period, he was working in Australia but living in City F with the wife and the child. These parties did not have the benefit of any substantial financial windfalls in the form of inheritances, gifts, personal injury awards or gambling/lotto gains. Everything they have represents, if you like, their hard earned effort.
The husband says, and I accept, at the time of co-habitation he owned a car and had some superannuation accumulated. The wife had no assets at all. In the absence of evidence, it is difficult to know how much superannuation the husband had, but I accept that it is likely he had some level of superannuation. His best estimate was, “perhaps his super was worth 20 or 50 thousand dollars,” but when he was directed to the current level of super in Superannuation Fund 1 (which he acknowledged was the initial superannuation scheme he was involved in) only now having a current value of $32,639, it was clear that his “guestimate” of $50,000 could not be accepted.
I find that the money currently in Superannuation Fund 1 is more likely than not the balance of the husband’s superannuation at co-habitation and normal accruals and deductions. He indicated that his current major superannuation fund held with Superannuation Fund 2 represents the scheme into which he has been making contributions for many years. His explanation for keeping the Superannuation Fund 1 benefits is that it contained some benefit of life insurance which he sought to preserve.
The only financial transaction of any significance undertaken by the parties was that in 2018, the husband in his sole name purchased the Suburb D property for approximately $350,000. It is a two bedroom unit, which has been the subject of an independent single expert valuation opining a market value of $360,000.
It was purchased with the benefit of a deposit of $50,000 from accumulated savings, and the husband’s entitlement to a first home buyer’s grant of $20,000. The fact that the amount borrowed was approximately $300,000 equates with the current reduced loan balance of approximately $276,499.
I am satisfied that for a period post-separation until some time in 2022, the husband voluntarily paid child support to the wife as the mother of the child in her primary care of around $350 per week. He stopped paying child support when the mother, he says, stopped him having access with the daughter. The mother made no application for an administrative assessment, although she was entitled to do so. She gave evidence that she did not know she could do so. She has, as a result, been entirely reliant upon government benefits.
The husband says, and I accept, that post-separation he continued to pay the mortgage and rates on the Suburb D home that was occupied by the wife and the child; and further, that he paid a number of extracurricular activities for the child for a period, including school fees.
Considering all these factors, I regard the contribution-based entitlements of the parties to be almost equal, although the husband’s contributions to the superannuation pool are slightly greater than 50 per cent because of his initial contribution of superannuation.
SECTION 75(2) FACTORS
The wife is 10 years younger than the husband; in good health, and has limited employable skills and qualifications. She is seeking as best she can to complete a qualification, after which she hopes to be able to obtain employment. She gave evidence that it is her intention to seek employment when she has those qualifications, although she still wishes to maintain her primary role as a parent. In this regard, I note that the orders made in November 2023 in relation to parenting do not provide for the child to spend any prescribed time with the father. The child has approximately seven years of schooling left. The husband’s income is significantly superior to that of the wife. He has been employed in a primary sector company for over six years, with a current gross income of approximately $2900 a week, which net of tax is approximately $2100 per week.
He said, and I accept, that if the wife makes an application for administrative assessment of child support, he will be assessed and he will pay. I accept he will do so. I encourage the wife to make an application for assessment. The husband being 10 years older than the wife has a more limited working life. He also enjoys good health.
This is a very modest pool, and the effect of the orders which I will make for property division are likely not to significantly affect either party in that the husband will have, if he can fund the payment to the wife, a modest home unit with a substantial mortgage (compared to the value of the home unit); a reduced amount of superannuation, which he will be able to access earlier than the wife but still not for some years.
The wife will have a sum of cash which will not be sufficient to enable her to acquire a home in the Brisbane region because of limits to her capacity to borrow. She will have superannuation, which she will not be able to access for some time, as a result of the proposed splitting order.
It has often been said in cases like Best & Best (1993) FLC 92-418 and Clauson & Clauson (1995) FLC 92-595 that the most valuable asset that a person can take from a marriage is the ability to earn an income. The wife’s response sought a 70/30 division, which I took it to be both the contribution and s 75 adjustment. In my view without particular reference as to the percentages and with the modest pool that exists in this case, orders which allow the wife to get an adjustment between 15 and 20 per cent of the non-superannuation pool and 15 and 20 per cent of the superannuation pool on top of the contribution-based assessments would be appropriate and fair.
ORDER AS TO JUSTICE AND EQUITY
From my view for the Reasons given, I believe it is just and equitable that:
(a)The husband have the opportunity, if he is able to fund it, to retain the property at Suburb D by paying to the wife a sum of $60,000 within approximately 60 days of this order. If he is unable to pay that sum to the wife, the home will need to be sold. Upon payment of the sum, the wife is to vacate the home. I take into account that the husband had savings available to him, so that the amount he needs to borrow will be reduced by his available savings;
(b)I regard it is appropriate, just and equitable that there be a super splitting order in favour of the wife in the sum of $190,000. To the extent that this represents a slightly greater superannuation split, I have taken into account a slightly reduced cash component payable by the husband to enable him, as I believe it is just and equitable, to seek to retain the home. The husband retaining the home is the only option (other than a sale) because the wife accepts she is unable to obtain funds necessary to pay out the mortgage or refinance;
(c)The wife says that she no longer holds a number of the items the husband sought in Exhibit 1, but does have the husband’s wedding ring and an electronic device, which she shall be required to hand over to the husband. Otherwise, the parties will retain the other items.
For completeness, the husband says that the wife has property in Country E. Attached to an affidavit he filed on 12 January 2024 are a number of documents in the language of Country E with some English translations. Whilst they are copies of some form of title deeds, none of them can be demonstrated to be owned by the wife on the face of the document. At best, noting that the wife’s father died in 2016 (and the wife said his estate has not been finalised) and her mother died only last year, it is possible that she will receive some benefit from the estate of her parents that would be shared in some way with her two siblings. There is no suggestion that, during the course of the relationship, any contributions were made by the parties’ joint income to any Country E properties other than for utilities used when living in an Country E property that may have been under control of the family. The documents which the husband attached to his affidavit, I infer, are the documents the wife alleges the husband stole from her. They are copies and I find she now has further copies, having been served with the husband’s further affidavit.
For the Reasons given, the orders which appear at the commencement of the published reasons are, in my view, likely to do justice and equity to the parties.
The husband will retain, based on his capacity to finance the current debt and the balance payable to the wife:
Suburb D property
$360,000
Motor Vehicle 1
$9,000
Bank accounts
$16,874
$385,874
Less B Finance loan
$276,449
$109,375
Less payment to wife
$60,000
$49,375
together with a reduced combined superannuation entitlement of $79,931 ($269,931 – $190,000).
On a combined pool of $415,306 this total combined interests of $129,306 represents 31% of the combined pool approximately.
The wife will retain the following:
Motor Vehicle 2
$6000
Motor Vehicle 3
$20,000
Partial property settlement
$10,000
Cash payment by husband
$60,000
$96,000
together with a superannuation entitlement of $190,000.
On a combined pool of $415,306, this total combined interests of $286,000 represents approximately 70% of the combined pool.
I find that the wife’s claim for a payment of $100,000 to her (in effect 100% of the non‑superannuation pool) when combined with the assets she seeks to retain) is not just and equitable to the husband.
It is noted at no time has the wife brought an application for spousal maintenance, either on an interim basis or final basis. Merely asserting in a form of order after a trial, does not represent an application. Whatever rights parties’ have left to them to pursue (noting they are not divorced) is a matter for them. As a result, it is not proper for the Court to give any consideration as to whether she had a valid claim likely to be successful for spousal maintenance.
The Court will need to be satisfied that procedural fairness to the husband’s Superannuation Trustee has been given, before the splitting order can be effective.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 8 February 2024
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