Hyde and Lineham

[2016] FamCA 456

FAMILY COURT OF AUSTRALIA

HYDE & LINEHAM [2016] FamCA 456

FAMILY LAW – PROPERTY – Defacto property settlement – Respondent had notice of hearing – Matter dealt with on undefended basis – Application granted

Family Law Act 1975 (Cth)

APPLICANT: Ms Hyde

RESPONDENT: Mr Lineham

FILE NUMBER: HBC 27 of 2016

DATE DELIVERED: 12 May 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 12 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mitchell

SOLICITOR FOR THE APPLICANT: Ogilvie Jennings

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. Pursuant to Rule 1.14 of the Family Law Rules, time be abridged to enable this application to be filed.

2. The net assets and liabilities be divided so as to achieve a just and equitable distribution between the parties.

3. Within thirty (30) days, the respondent shall do all such acts and things so as to:-

   (a)discharge mortgage number … to MyState Financial Limited over the property known as and situate at B Street in Suburb C and described more particularly in Certificate of Title Volume … Folio … (‘the property’) in its entirety and meet all costs charges and fees relating to the discharge of the mortgage AND within 7 days provide written proof of discharge to the applicant;

   (b)pay to the applicant the sum of three thousand dollars ($3,000).

4. That upon the discharge and payment referred to in paragraph 3, the applicant shall relinquish any right, title and interest that she may have in the property.

5. In the event the respondent cannot obtain finance to comply with paragraph 3, the parties shall do all such acts and things to sell the property. To that end the applicant and the respondent will agree upon a selling agent and the method of sale including the sale price within fourteen (14) days of the date of this order and if no agreement is reached then the President of the Real Estate Institute of Tasmania or his/her nominee will determine who will be the selling agent, the selling price and the method of sale and both parties will abide by the decision of the President of the Real Estate Institute of Tasmania or his/her nominee.

6. The proceeds of sale of the property be distributed in the following order and priority:-

   (a)Real estate agent’s commission and any advertising or auction expenses;

   (b)The balance owing on any mortgage secured on the property at the date of the sale;

   (c)The legal costs of acting in the sale and the usual disbursements in completing the sale;

   (d)All adjustments to the date of sale in respect of municipal rates and charges and all other outgoings whatsoever; and

   (e)the sum of three thousand dollars ($3,000) to be paid to the applicant, Ms Hyde and the balance then remaining to the respondent, Mr Lineham.

7. Except as is otherwise provided in these orders and as against the respondent, the applicant shall be solely entitled to the exclusion of the respondent to retain free of any and all claims by the respondent the following:

   (a)the motor vehicle currently in her possession including the … motor vehicle registration number …;

   (b)her superannuation entitlements; and

   (c)all of her personal effects, jewellery, financial resources and choses in action in her possession or name.

8. Except as is otherwise provided in these orders and as against the applicant, the respondent shall be solely entitled to the exclusion of the applicant to retain free of any and all claims by the applicant the following:

   (a)the motor vehicle currently in his possession;

   (b)his superannuation entitlements; and

   (c)all of his personal effects, jewellery, financial resources and choses in action in his possession or name.

9. Both parties do all so acts and things to give effect to the terms of this order.

10. Leave be given for the respondent to apply, within twenty eight (28) days from the date of this order, to have these orders vacated and enable the matter to be determined on its merits, subject to any applications for costs.

11. All outstanding applications be dismissed.

12. This matter be removed from the list of cases requiring determination.

IT IS DIRECTED

1. Within seven (7) days of the date of this order:-

   (a)the applicant’s solicitor forward to the respondent, by ordinary pre-paid post, to B Street, Suburb C Tasmania … a sealed copy of this order; and

   (b)file an affidavit of service with the Court in relation to the forwarding of such letter.

2. The legal practitioners acting for the applicant refrain from making any charges in respect of their attendance at a case assessment conference held on 24 March 2016.

3. A copy of the reasons for these orders be taken out and placed on the court file.

4. The solicitor for the applicant forward to my administrative associate, within one (1) business day of the date of these orders, a word copy of the initiating application filed 15 January 2016.

   IT IS CERTIFIED

5. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hyde & Lineham 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 HOBART

FILE NUMBER: HBC 27 of 2016

Ms Hyde

Applicant

And

Mr Lineham

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings between Ms Hyde (‘the wife’) and Mr Lineham (‘the husband’).  These proceedings were commenced by initiating application in the Family Court.

2. These proceedings related to property applications arising out of an alleged de facto relationship between the husband and the wife.  These proceedings were filed on 15 January 2016 by way of an initiating application, affidavit and financial statement.  The material was served upon the husband on 20 January 2016.  To that end I have had regard to the material contained in the affidavit of service of Mr D, filed 28 January 2016. 

3. The husband did not attend at the Case Assessment Conference, and as a result the proceedings were adjourned for an undefended hearing before me this morning.  I have in evidence before me a letter forwarded to the husband by ordinary prepaid post, showing that he had such notice.

4. The husband was called this morning three times outside the Court and did not appear.  I am satisfied that the husband knows of the proceedings and has chosen not to attend.  However, in order that he be given procedural fairness, in the event that there are other factors of which the Court is not aware, I will give him a further 28 days to apply to set the orders aside.  He will, of course, do so at risk as to costs, bearing in mind that this matter was readied for hearing today.

5. I am then left with what orders to make in terms of property and I will deal with that in these reasons.  The application by the wife is, to say the least, quite modest.  She wishes to retain her furniture, furnishings, her car, which is the subject of a liability, and to ensure that she is not out of pocket for her legal costs, as she is concerned that the husband is not meeting his mortgage repayments and this could impact upon her, in terms of her income and her lifestyle.  The wife has incurred or will incur costs of about $3,000 once these proceedings are at an end, and simply seeks a lump sum to cover that cost. Given the material to which I will allude to later in these reasons, that claim seems entirely reasonable.

6. The law regarding treatment of property has been clarified following the High Court decision in Stanford[1].  Prior to that decision, the preferred approach was the four-step approach reflected by the Full Court in cases such as Hickey & Attorney-General.[2]  Following the Stanford approach, the Court must firstly be satisfied in making an order that it is just and equitable to do so.  It then considers what orders, if any, should be made, having regard to the appropriate sections of the Family Law Act 1975 (Cth) (‘the Act’). 

   [1] (2012) 247 CLR 108.

   [2] Hickey & Hickey and the Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.

7. This, of course, is a proceeding under the de facto provisions of the Act. Firstly, in relation to the issue of jurisdiction, the Court must be satisfied that the parties were in a de facto relationship, as defined under the Act. Given the evidence provided by the wife, I am satisfied that the husband and wife were in a long-term de facto relationship from about July 2010 until about January 2013. There are no children of that relationship, although each of the parties has children from previous relationships.

8. I am satisfied that not only was there a relationship, but that that relationship ended finally on 21 January 2013, some two and a half years, approximately, after it commenced. I am therefore satisfied that there was de facto relationship; it was for two years or more, and that it came to an end and therefore the Court has the jurisdiction and the power to make an adjustment of property, having regard to the appropriate provisions under the Act relating to de facto relationships. I am also satisfied that given the circumstances set out in the wife’s affidavits that it is just and equitable to consider the making of orders.

9. It is worthwhile going through the wife’s uncontested material to give some background to this proceeding.  The wife is employed as an administrative assistant and earns about $870 per week income.  She has been in that employment for some time.  The wife asserts that the whole of her income is used, if not more, to care for herself.  In her financial statement she provides the following details of her assets and liabilities: she and the husband own a property at B Street, Suburb C, which she says, and I accept, has a value of some $280,000.  The husband owned this property at the commencement of the parties’ relationship.  The wife asserts it had a value on it of $260,000 at the commencement of the relationship.  The wife now asserts it has a value of some $280,000.  There was a need to refinance that property, and to facilitate that refinance the wife became jointly liable to the bank in that respect.  The assets known to the wife are the property at B Street, Suburb C, in which the legal interest is owned by the husband; a motor vehicle which is jointly owned and has a value of some $6400.

10. There are liabilities to MyState by way of a mortgage secured over the B Street, Suburb C property in the sum of $220,000, and an Esanda car loan of $8,500 approximately. 

11. The wife has superannuation property which she has accumulated over many years, totalling some $20,063.20.  The wife does not know, and has not been provided, details of the assets and liabilities or the superannuation entitlements of the husband.  She asserts the value of the house at $280,000, and provides a copy of the offer and loan contract from MyState Financial, which is annexure A to her affidavit.  The house was, at the time of cohabitation, worth approximately $205,000 and there are other debts which the husband had of some $28,000.

12. When the parties commenced cohabitation the wife did not have significant asserts or liabilities, and was working earning approximately $30,000 per year.  The husband was working as a technician and was earning approximately $80,000 per year.  In 2011, the parties refinanced the liabilities and in doing so the wife became liable to the bank.  The wife in her affidavit asserts that during the relationship the husband made the mortgage repayments, but that she paid other expenses such as groceries, telephone, internet accounts, and the like. 

13. The husband has two children who were aged six and 10 at the commencement of the relationship.  The wife had two children who were aged 15 and 13 at the commencement of the relationship.  Presumably, the eldest child is now over 18, and we continue with the belief that they are no longer supported by their parents. 

14. The wife sets out a history of family violence.  I do not intend to set it out here in chapter and verse, except to acknowledge it and acknowledge that it would have been a terrible time for her and the children.

15. The parties separated, and the wife has avoided any unnecessary communication with the husband since that time.  However, in September 2015 she discovered that the husband was not making the mortgage repayments and the mortgage had fallen into arrears.  The amount currently outstanding is some $218,000.  In October 2015 the wife made a hardship application to the bank and understands that the husband has done likewise.  The wife received further information from the bank on 9 January 2016 about the arrears of the mortgage, which is continuing.

16. As I said, the wife is an administrative assistant and earns approximately $45,000 gross per annum.  She does not know the details of the husband’s income or circumstances.  

17. The wife is aged 49.  The husband is aged 52.  The wife is in good health, although has suffered depression and anxiety, and given the history of what she has gone through that is hardly surprising.  She resides in rental accommodation. 

18. These proceedings were not commenced in time, and reasons have been set out, including that to which I referred to earlier, and I intend in this case to extend the time to enable the proceedings to be heard and determined, particularly given the material set out in the affidavit.  I have identified the property.  That property, to which the wife wishes to retain, is her car subject to the mortgage, the superannuation, and her personal effects.

19. The wife seeks a modest adjustment out of the property of the husband, that is the house, simply sufficient to meet her costs of and in relation to these proceedings.  I could have deal with it by way of a costs application, but given the modest claim and the amount that I would otherwise have allowed, I will deal with it the way as suggested by counsel for the wife, and obviously I will then not make an order for costs, although it would be open for costs to be ordered in relation to any enforcement or subsequent proceedings.  I have looked at the s 75(2) factors, and the financial and personal circumstances of each of the parties to which I was referred in the affidavit material.

20. I am satisfied therefore, having regard to all of those factors, that the adjustment sought by the wife is, in all of the circumstances, just and equitable and I will make an order to that extent.  I was, and remain, critical of the applicant’s solicitors for commencing proceedings in the Family Court when this proceeding ought to have been commenced in the Federal Circuit Court.  I can understand their reasoning, but as a matter of practise I will encourage them not to do so, and in that respect I will restrain them from charging fees for attending at the case assessment conference on 24 March 2016.  Given the circumstance, I will direct a transcript of these reasons be taken out and placed on the court file.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 12 May 2016.

Associate:     

Date:              12 May 2016