JACODA & MANCIE
[2019] FCCA 3279
•19 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JACODA & MANCIE | [2019] FCCA 3279 |
| Catchwords: FAMILY LAW – Property – undefended hearing. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79 |
| Cases cited: Bevan & Bevan [2014] FamCAFC 19 Black & Kellner (1992) FLC 92-287 Chapman & Chapman [2014] FamCAFC 91 In the Marriage of Weir (1992) 16 FamLR 154 Kennon & Kennon (1997) FLC 92-757 Russell & Russell (1999) FLC 92-877 Scott & Danton [2014] FamCAFC 203 Stanford & Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120 |
| Applicant: | MS JACODA |
| Respondent: | MR MANCIE |
| File Number: | PAC 551 of 2019 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 29 August 2019 |
| Date of Last Submission: | 29 August 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 19 November 2019 |
REPRESENTATION
| Appearing for the Applicant: | Mr Byrne |
| Solicitors for the Applicant: | Prime Lawyers |
| Appearing for the Respondent: | No appearance |
ORDERS
Within 24 hours of these Orders being entered, the applicant is to cause her solicitors to serve on the respondent a sealed copy of the Orders.
Within 24 hours of receiving these Orders, the respondent is to vacate the property known as A Street, Suburb B in the State of New South Wales (“A Street, Suburb B property”) and the Wife is to have sole and exclusive occupation of the A Street, Suburb B property to the exclusion of the respondent.
Within 48 hours of the making of these Orders, the respondent is to provide the applicant’s solicitor an address, including postal address and an email address, at which he will receive notices.
If the respondent does not provide an address in accordance with Order 3 above, then the address shall be deemed to be G Street, Suburb F in the State of New South Wales (“G Street, Suburb F property”).
Within 28 days of the date of these Orders the respondent is to do all acts and things and sign all necessary documents to transfer all his rights title and interests in the Real Property Folio Identifier Deposited Plan … situate at and known as A Street, Suburb B in the State of New South Wales to the Applicant.
Within 56 days of the date of these Orders, the respondent is to transfer the amount of $460,400 to the applicant’s solicitor's Trust Account.
In the event the respondent does not transfer the funds in Order 6 within the 56 days, then:
(a)Within 59 days of the date of these Orders, the Applicant shall provide the details of three real estate agents to the respondent;
(b)Within two days of receiving the nominated agents, the respondent shall choose one Agent and notify the applicant's solicitor of his choice;
(c)In the event the respondent does not notify the applicant's solicitor of his choice in accordance with (b), the applicant’s solicitor will make application on behalf of the respondent to the President of the Real Estate Institute of New South Wales to appoint a real estate agent to list for sale by Auction the property known as G Street, Suburb F in the State of New South Wales more particularly described as Real Property Folio Identifier Deposited Plan … (“G Street, Suburb F property”) and the respondent shall pay the full amount of the Application fee from his portion of the proceeds of sale;
(d)The reserve price for the purpose of such auction shall be $1,200,000;
(e)The applicant solicitor's firm shall have carriage of the conveyance;
(f)The respondent shall co-operate in every way with the agent including (without limiting the generality of the foregoing):
(i)Making the key available to the agent;
(ii)Allowing inspection of the G Street, Suburb F property at all reasonable times requested by the agent;
(iii)Doing or saying nothing to hinder or prevent a sale being effected;
(iv)Ensuring the G Street, Suburb F property is in a neat and clean condition at the time of inspection by the agent and prospective purchasers;
(v)Signing all documents requested by the agent in relation to the listing for sale by auction of the G Street, Suburb F property except a contract or agreement for sale which has not been authorised by the applicant's solicitor; and
(vi)Attend the auction.
(g)The applicant, or her nominee, may attend the Auction;
(h)In the event the bidding at the auction does not reach the reserve price, the respondent may negotiate with the highest bidder or any other interested person and effect a sale of the G Street, Suburb F property at a price which is not less than 5% below the reserve price without the consent of the applicant or her nominee;
(i)If the G Street, Suburb F property remains unsold, the respondent shall do all acts and things and sign all documents necessary to immediately relist the G Street, Suburb F property for sale by public auction again, on a date nominated by the agent, and at such auction, and each subsequent auction as required, the reserve price is reduced by 5% until sold;
(j)The parties shall be entitled to obtain their own solicitor to have a watching brief and they shall at all times be provided with information regarding the sale, be required to approve the settlement sheet and attend on settlement to effect these orders on behalf of their client;
(k)The respondent shall execute a contract for sale in the form prepared by the solicitor having the conduct of the sale at the sale price;
(l)On settlement of the sale of the G Street, Suburb F property, the proceeds of sale shall be paid in the following manner and priority:
(i)All costs and expenses of sale including legal costs on sale of each party and disbursements, agents' commission, valuers' fees, and auction expenses;
(ii)The amounts required to pay all adjusted municipal and water rates outstanding with respect to the G Street, Suburb F property;
(iii)The mortgage, if any, over the G Street, Suburb F property including loan break fees;
(iv)$460,400 to the applicant's solicitor's Trust Account;
(v)Any fee paid by the applicant’s solicitor's firm to appoint a selling agent; and
(vi)A payment to the respondent of the balance.
Other than as specifically provided for in these Orders, the parties are solely entitled to the exclusion of the other to all other property, insurances, bank accounts and chattels in the name, and or possession, of each of the parties as at the date of the making of these orders and are liable for and will indemnify and keep indemnified the other in relation to any indebtedness standing in their respective name.
Each of the parties have no claim on the other party's superannuation and each of the Husband and Wife take the whole of the superannuation that is in their respective names to the exclusion of all others.
In default of either party doing all acts and things and executing all such documents as are necessary to give effect to these Orders within 14 days of that obligation to do so as required under these Orders, and on the registrar being satisfied of such fault or failure or neglect by either party by way of affidavit evidence only, a registrar of the Federal Circuit Court of Australia is appointed pursuant to s106A of the Act to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said Orders and the party in default to pay to the other party to this application that party's costs and disbursements on an indemnity basis.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Jacoda & Mancie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 551 of 2019
| MS JACODA |
Applicant
And
| MR MANCIE |
Respondent
REASONS FOR JUDGMENT
Introduction and Commencement of Proceedings
These are Reasons for Judgment with respect to an application filed by the applicant on 7 February 2019 seeking orders pursuant to section 79 of the Family Law Act1975.
The parties to the proceedings are the applicant wife Ms Jacoda and the respondent husband Mr Mancie.
The Initiating Application was listed before the Court for first return on 19 March 2019. On this date the matter was set down for final undefended hearing against the respondent as he had failed to engage in the proceedings by either appearing before the Court on 19 March 2019 despite having acknowledged service of the initiating documents on 16 February 2019, providing financial disclosure to the applicant or by filing a Response to the Initiating Application as required by the Federal Circuit Court Rules 2001.
The respondent has chosen to ignore the existence of the current application before the Court and has chosen not to participate in the proceedings.
Orders sought by the Applicant
The applicant seeks the following final orders pursuant to section 79 of the Family Law Act1975:
a)That the respondent do all acts and things and sign all necessary documents to transfer all his rights, title and interest in the real property Folio Identifier, Deposited Plan … situate at and known as A Street, Suburb B in the State of New South Wales to the applicant;
b)That the applicant do all acts and things and sign all necessary documents to transfer all her rights, title and interest in the real property Folio Identifier, Deposited Plan … situate at and known as G Street, Suburb F in the State of New South Wales to the respondent;
c)The respondent transfer to the applicant an amount of $200,000;
d)The respondent pay the applicant’s costs of the proceedings on an indemnity basis;
e)The parties otherwise retain all property in their possession to the exclusion of the other at the time of making orders;
f)That neither party has a claim to any superannuation entitlements held by the other party; and
g)That a Registrar of the Court be appointed to execute all documents in the name of a defaulting party pursuant to section 106A of the Act.
Short Chronology
The applicant was born on … 1946 in Country H and is currently aged 73 years.
The respondent was born on … 1946 in Country J and is currently aged 73 years.
Sometime in … 1962 the applicant arrived in Australia.
On … 1981 the applicant gave birth to her daughter from a previous marriage.
On … 1988 the applicant became an Australian citizen.
The parties met in … 1990 and were married on … 1991.
The parties’ commenced cohabitation on the day they wed in the applicant’s housing department unit.
During 1991 and 1992 the parties built their home at A Street, Suburb B in the State of New South Wales (“the A Street, Suburb B property”).
The parties commenced living in the A Street, Suburb B property at the end of 1992.
In 1994 the respondent was charged with the sexual assault of a minor, however these charges were later withdrawn.
Following the above charges the parties began sleeping in separate bedrooms and have continued to do so.
The parties separated under the one roof in approximately 2000 with the applicant continuing to cook and clean for the parties and generally continued to take care of the respondent.
The parties continue to be separated under the same roof, being at the A Street, Suburb B property. The applicant ceased cooking and taking care of the respondent in January 2018 however she continues to clean for the respondent.
Overall Approach
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 Family Law Act1975 (Cth) was set out by the High Court in Stanford v Stanford,[1]where their Honours stated:
[1] [2012] HCA 52; (2012) 247 CLR 108
[37] … first, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… the question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
…
[40]… whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4) …
Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan[2], Chapman & Chapman[3] and Scott & Danton[4].
[2] [2014] FamCAFC 19
[3] [2014] FamCAFC 91
[4] [2014] FamCAFC 203
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c), the matters set out in s.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[5]
[5] see generally Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120
The just and equitable requirement is “one permeating the entire process”[6]. Determining whether an order is just and equitable requires the Court to know the assets and liabilities held by each party.
[6] Bevan supra at [86]
Both parties are obliged to make full and substantive disclosure of their financial affairs. [7] Where there is clear evidence of non-disclosure, as is the case in this matter, the Court should not be unduly cautious about making findings in favour of the innocent party.[8]
[7] Black & Kellner (1992) FLC 92-287
[8] In the Marriage of Weir (1992) 16 FamLR 154
Assessment of Contributions and s75(2) Factors
Prior to the parties’ relationship the applicant was working as a tradesperson and had very little assets.
At the time the parties commenced cohabitation the applicant was living in a housing commission unit in Suburb K with her daughter.
The respondent owned a property at G Street, Suburb F at the commencement of the parties’ relationship and continues to own this property. The respondent’s brother resides at the property. The applicant does not believe that the respondent’s brother pays rent.
The respondent also owned land at A Street, Suburb B at the commencement of the relationship, this being the land where the parties built the A Street, Suburb B property. The land was purchased for $69,000 in 1989. The applicant is unaware of the amount of the mortgage, if any.
The parties built the A Street, Suburb B property for approximately $70,000.The applicant assisted with selecting the interior and exterior design of the home, and she was responsible for furnishing and decorating the inside of the home.
At the time the parties married the respondent was working for Employer C in their factory at Suburb L.
In or about mid 1994 the respondent told the applicant that he was going to open a brothel for which he had received Council approval in a rental property at Suburb M. The respondent told the applicant that she was to work as the receptionist and manager of the brothel.
The applicant says that she was afraid of the respondent and that she complied with his request to manage the brothel in Suburb M out of fear of what he might do to her if she did not comply.
The Suburb M brothel was closed in approximately 1997. The respondent then opened a second brothel in Suburb N where the applicant continued to work in the same capacity as the Suburb M brothel.
The applicant worked seven days per week from 10am until 9pm at the brothels. She was responsible for greeting clients, answering the telephone, making bookings for clients, cleaning and also cooking for the employees. The applicant was not paid for her work.
The respondent would collect the money made from the business and transport the employees to and from the establishment.
The applicant is unaware of how much money the respondent collected from the business and is also unaware of how much money the respondent was earning whilst working for Employer C.
The respondent would purchase minimal clothing for the applicant when she asked, purchase the grocery shopping for the family and would pay the mortgage on the A Street, Suburb B property. The applicant did not have any personal source of income during their relationship.
In approximately mid-1999 the applicant told the respondent that she would no longer work in the way that she had been. The respondent soon thereafter closed the business at Suburb N and did not allow the applicant to return to any form of work.
In 2001 the respondent ceased working for Employer C and was thereafter unemployed for five years. Following this period the respondent gained employment with Employer D as a labourer, a position he held for approximately eight years. The applicant is unaware of the respondent’s earnings during this time.
The respondent retired in 2014 and receives superannuation entitlements, an amount unknown to the applicant.
The applicant was the primary homemaker and tendered to all homemaking duties such as cooking, cleaning and clothes washing for the family and continued to do so for the respondent even after separation, albeit to a more limited extent.
Family Violence
The applicant says that from the time the parties lived in the A Street, Suburb B property the respondent became very controlling of her. She says that he would not allow her to invite her friends over to their home and that if she wanted to go out the respondent would dictate to her what time she was to be home. If the applicant was not home by the time he said he would make comments to her such as “you’re late because you were fucking the bus driver”.
The respondent controlled what food was permitted in the house and what food the applicant was to cook for the family.
The respondent financially controlled the applicant by not allowing her to work in employment other than the brothels owned by him, not paying the applicant for the time she worked at the brothels and not providing her with access to the bank account where the parties’ money was held. The applicant says that she would need to “beg” the respondent to give her small amounts of money to catch a bus or to see her friends.
In approximately 1994 the applicant’s daughter disclosed to her that “Dad gropes my bum when you leave the house. He also pulls open my pants and looks at and touches my vagina”. The applicant asked how many times this had occurred and she replied “lots of times. I am scared to come out of my room when you leave. I also watched him touch my friend, O’s bum the other day and that was when I decided I needed to tell you”.
The respondent was subsequently charged with sexual assault of a minor and was removed from the A Street, Suburb B property.
The respondent denied all allegations made and the charges were withdrawn at Court. The applicant allowed the respondent to return to the A Street, Suburb B property because the applicant “felt stuck in her life” with the respondent as he owned the A Street, Suburb B property, she had no finances or anywhere else to live and could not speak English well. The parties never shared the same bedroom again.
Determination
Pool of Assets
The respondent, holds a one third share in his parents’ estate with a net value of approximately $700,000. His third share is approximately $237,000.
Based on the evidence of the applicant, and in absence of any evidence to the contrary from the respondent, the Court accepts that the property pool consists of at least the following:
Asset
Owner
Value
A Street, Suburb B
Respondent
E$850,000
G Street, Suburb F
Respondent
E$1,100,000
E Street, Suburb F,
Respondent’s one third share of deceased estate
$234,000
TOTAL:
$2,184,000
Each of the Suburb F and A Street, Suburb B properties are unencumbered.
The applicant does not have any superannuation and any superannuation entitlements of the respondent are not known.
There are no known liabilities.
Just and Equitable and Section 75(2) Factors
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the common use of property by the parties.
However, at present there remains common use of the A Street, Suburb B property by the parties. The applicant submits however that this arrangement is causing significant stress on her wellbeing and that of her daughter and grandchildren who also reside with the parties.
The respondent continues to verbally abuse the applicant as well as the applicant’s daughter and her three children. The respondent consumes alcohol everyday often beginning to drink at 10am and becomes progressively abusive throughout the day.
The respondent is in poor health. He is diabetic and requires insulin twice per day and has possible health concerns with his prostate.
The applicant is in relatively good health for her age.
The applicant began receiving Centrelink payments in August 2018 in an amount of $400 per week.
The parties are both 73 years old. They have no earning capacity. The applicant receives Centrelink payments while the respondent is in receipt of a superannuation annuity as well as a part-pension.
The allegations of family violence and sexual abuse were raised by the applicant in the context of a Kennon & Kennon[9] claim. The applicant urges the Court to make a finding that her contributions were made more onerous by the family violence which was visited upon her at the hands of the respondent.
[9] (1997) FLC 92-757
In order to establish that an adjustment ought to be made for these reasons, the applicant has the onus to not only establish facts to the requisite standard of the course of conduct which is alleged and required to make such a case, but also to demonstrate that such conduct has had a significant adverse impact upon her contributions or made her contributions more arduous than they ought to have been.[10]
[10] See Kennon & Kennon (1997) FLC 92-757;
The Court is satisfied that on the evidence it is established that the applicant’s contributions were made more arduous by the family violence perpetrated by the respondent. This violence included economic abuse, verbal abuse, threatening behaviour and coercive and controlling behaviour.
Conclusion as to Adjustment
As has been said, property adjustment proceedings are not the Court’s chance to dispense ‘palm tree justice’. It is for the applicant to satisfy the Court that the property interests of the parties should be adjusted per se and then in what manner. The Court must be satisfied that it is just and equitable to make any order adjusting the parties’ property interests.
The difficulty for the Court in this matter is that the respondent has failed to provide the applicant or the Court with any financial disclosure therefore making it impossible for the Court to identify the asset pool of the parties or to assess the respondent’s income. This is a matter which ultimately leads the Court to adopt a less cautious approach with respect to what is just and equitable.
The parties were together for a period of over 28 years. The respondent’s initial contributions by way of property he brought into the relationship were significant and in this respect, regard must be had to the use made by the parties of that contribution.
The overall contributions are assessed as 50/50 in the applicant’s favour, with a further adjustment of 10% in favour of the applicant due to family violence and s75(2) factors. This means that overall, the adjustment is to be 60% to the applicant and 40% to the respondent.
The applicant seeks exclusive occupation of the former matrimonial home. In all of the circumstances such an order is just and equitable. The respondent has another property which the Court infers can be readily made available to him to reside in, it is a property currently occupied by his brother.
As such, the applicant is to receive by way of property adjustment orders
Asset
Value
A Street, Suburb B
E$850,000
Payment by Respondent
$460,400
TOTAL:
$1,310,400
And the respondent is to receive:
Asset
Value
G Street, Suburb F
E$1,100,000
E Street, Suburb F
$234,000
Less Payment to Applicant
($460,400)
TOTAL:
$873,600
If the respondent is unable to raise the funds to pay the applicant the amount required by these Orders, the G Street, Suburb F property will then be sold. The balance of any net proceeds of sale ought to be sufficient for the respondent to house himself adequately.
Conclusion
The result in all the circumstances is appropriate.
Orders as set out at the forefront of these Reasons are therefore made.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 19 November 2019
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Costs
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Jurisdiction
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Procedural Fairness
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