Jewell & Jewell
[2021] FedCFamC2F 5
•26 July 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jewell & Jewell [2021] FedCFamC2F 5
File number(s): MLC 13510 of 2020 Judgment of: JUDGE BENDER Date of judgment: 26 July 2021 Catchwords: FAMILY LAW – PARENTING – the Mother’s application for parenting orders – the Father has not filed any material and has not participated in proceedings save for one appearance at the first return date – the children have spent limited time with the Father post-separation – the Mother makes allegations that the Father uses illicit substances – leave granted to proceed on an undefended basis.
HELD – orders made for the children to live with the Mother and spend time with the Father as agreed between the parties – the time the children spend with the Father be subject to such conditions as determined by the Mother – the Mother be authorised to travel interstate and overseas with the children without the Father’s consent – the Mother may apply for passports for the children without the Father’s consent.
FAMILY LAW – PROPERTY – the Wife’s application for property orders – the Husband has not filed any material and has not participated in proceedings save for one appearance at the first return date – the Father is not paying child support – the Father has caused damage to the former matrimonial home – the matter proceeded on an undefended basis.
HELD – orders made for the former matrimonial home in joint names to be sold – the Wife named Trustee for Sale for the real property – the proceeds of sale to be divided as to 70% to the Wife plus a sum to represent 70% of repair and rubbish removal costs relating to the Husband’s damage – the parties share equally in mortgage repayments and outgoings until the real property is sold – the parties otherwise retain assets in their name and possession including motor vehicles – there be a superannuation split to the Wife in the sum of $37,992 – orders for the Husband to pay the Wife’s costs of the proceedings in the sum of $5,042
Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2), 79(4), 117(1), 117(2), 117(2A)
Federal Circuit Court Rules 2001
Cases cited: Stanfordv Stanford [2012] HCA 52
Hickey& Hickey [2003] FamCA 442
Bevan & Bevan [2013] FamCAFC 116Division: Division 2 Family Law Number of paragraphs: 86 Date of hearing: 26 July 2021 Place: Melbourne Solicitor for the Applicant: Ms Song - Rayner Song Family Lawyers Counsel for the Respondent: The Respondent did not appear ORDERS
MLC 13510 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JEWELL
Applicant
AND: MR JEWELL
Respondent
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
26 JULY 2021
THE COURT ORDERS THAT:
1.All previous orders be discharged.
Parenting
2.The Mother have sole parental responsibility of the children of the marriage, namely:
(a)X born 2006 (“X”);
(b)Y born 2009 (“Y”); and
(c)Z born 2011 (“Z”).
3.X, Y and Z live with the Mother and spend time with the Father as agreed between the parties and subject to such conditions as determined by the Mother.
4.Each parent advise the other of any change of telephone number, email address or residential address within forty-eight (48) hours of such change occurring.
5.Each parent inform the other as soon as practicable of any serious injury or illness sustained by one or more of X, Y and Z and further provide particulars of any treatment required or received by X, Y and/or Z together with the name and address of the treatment provider.
6.Each parent is hereby authorised to obtain from X, Y and Z’s childcare, kindergarten and/or school all notices, letters, reports and invitations and to attend parent/teacher interviews or other activities to which parents are ordinarily invited.
7.Each parent is permitted to liaise with and attend upon X, Y and Z’s medical practitioners and other treating health professionals to obtain information about X, Y and Z’s medical care and to obtain copies of X, Y and Z’s medical documents at their own expense.
8.The Mother is permitted to travel interstate or overseas with one or more of X, Y and Z without first needing to obtain permission of the Father.
9.The Mother is authorised to apply for and receive an Australian passport for X, Y and Z without first obtaining the written consent of the Father.
Property
10.The Husband, his agents, and servants be restrained from dealing with the former matrimonial home at B Court, Town C in the State of Victoria (“the Town C property”) otherwise than in accordance with these Orders.
11.The Wife, namely Ms Jewell (hereafter “the Trustee”) be appointed pursuant to s.80(1)(e) and/or s.80(1)(k) of the Family Law Act 1975 (Cth) as Trustee for Sale of the Town C property and that the said property vest in the Trustee for the purposes of sale.
12.The Trustee is empowered to take possession of the Town C property and require vacant possession in order to effect a sale of the said property.
13.Without limiting the Trustee’s powers under the terms of this Order, the Trustee is empowered to do all things and sign all documents necessary to effect a sale of the said property including but not limited to:
(a)determining whether the sale be by private treaty or auction;
(b)determining the real estate agent with whom to list the property;
(c)determining the conveyancer or lawyer with whom to carry out the settlement including completing client authorisation;
(d)determining the listing price from time to time, or the reserve price in the event of sale by auction;
(e)determining all terms of sale;
(f)completing the Section 32 Vendor Statement and Contract of Sale;
(g)completing discharge of mortgage documents;
(h)completing all documents in PEXA including Transfer of Land; and
(i)completing State Revenue Office documents.
14.On settlement of the sale of the Town C property the net proceeds of sale, after normal adjustments at settlement as defined in the standard REIV contract of sale, the Trustee do all acts and sign all documents necessary to direct the sale proceeds to be paid in the following manner and priority:
(a)to discharge the mortgage registered in favour of Westpac Banking Corporation (“the Town C mortgage”) and any other encumbrances registered against the Town C property;
(b)to pay all expenses of and incidental to the sale, including the estate agent's commission, advertising fees, legal costs on the sale and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties by written agreement or incurred by the Trustee);
(c)to pay any adjusted municipal and water rates outstanding with respect to the Town C property; and
(d)To divide the balance as follows:
(i)70% to the Wife plus:
A.a sum for reimbursement of 70% of repair costs to the Town C property for damage already caused by the Husband with the sum capped at $8,950.00 and 70% of the costs of removal of rubbish left by the Husband capped at $2,864.99 (being $8,270.49);
B.a sum to reimburse the Wife for the Husband’s half share of mortgage and outgoings in the event he defaults on Order 15(b); and
C.the Wife’s costs payable by the Husband pursuant to Order 30 herein in the sum of $5,042.00.
(ii)30% to the Husband less the amounts referred to in Order 14(d)(i)(A), (B) and (C) herein.
15.Pending Order 14 being effected:
(a)the Wife have sole right to use and occupy the property;
(b)the parties are jointly responsible for and each party indemnifies the other against the mortgage repayments, rates, and other outgoings of the Town C property;
(c)the Wife maintain comprehensive home and contents insurance for the Town C property at the parties’ joint expense;
(d)the Husband is prohibited by injunction from intentionally causing damage to the Town C property and, in the event that further damage is caused by the Husband, the Husband’s portion of the net sale proceeds at Order 14(d)(ii) herein be further reduced by the amount required to repair the damage;
(e)the parties hold their respective interests in the Town C property upon trust for one another pursuant to these Orders;
(f)each party is prohibited by injunction from further encumbering the Town C property without the consent in writing of the other party or the existing mortgagee; and
(g)each party is prohibited from drawing down on the Town C property mortgage or increasing the balance of the Town C property mortgage without the other parties’ consent, save for the accrual of ordinary interest and ordinary bank charges.
16.The Wife retain for her sole use and benefit the following:
(a)funds in any bank accounts held in her sole name or jointly with another;
(b)her D motor vehicle;
(c)her personal belongings and effects;
(d)all furniture and contents located in the Town C property, save for the Husband’s personal belongings; and
(e)her superannuation benefits.
17.The Husband retain for his sole use and benefit the following:
(a)funds in any bank accounts held in his sole name or jointly with another;
(b)his E motor vehicle; and
(c)his personal belongings and effects.
18.The Wife remain solely liable for and indemnify the Husband against all credit card debts, personal loans and any other debts in her sole name or jointly with another person.
19.The Husband remain solely liable for and indemnify the Wife against all credit card debts, personal loans and any other debts in his sole name or jointly with another person.
20.Having been accorded procedural fairness, Orders 21 to 22 is binding on the Trustee of the F Super Fund (“the Fund”).
21.Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the Husband’s interest in the Fund, the Wife or, on her death, the Wife’s legal personal representative shall be entitled to be paid by the trustee of the Fund the amount (if any) calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”), using an agreed base amount of $37,992 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders.
22.The operative time for the purposes of Order 21 is at the beginning of the day on the fourth business day after these Orders have been served on the Trustee.
23.Until:
(a)the establishment of a separate superannuation interest in the name of the Wife in the Fund; or
(b)the transfer or rolling over into another superannuation fund as nominated by the Wife of the payment split created by these Orders; or
(c)the Wife satisfies a condition of release and is paid the payment split which was created by Order 21; or
(d)the Wife exercises a waiver of rights within the meaning of section 90XZA of Family Law Act 1975 (Cth) in relation to the payment split created by Order 21;
the Husband is prohibited from doing any acts or permitting any acts to be done that may render any part of his interest in the Fund a "non splittable" payment within the meaning of Regulation 12 or 13 of the Regulations.
24.Within seven (7) days of receipt of a sealed copy of the Orders, the Wife shall arrange for a copy to be served upon the trustee of the Fund.
25.After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth), the Husband shall do all such things and sign all such documents as may be necessary to fulfil any request from the Wife for the transfer or rollover of her interests in the Fund.
26.The trustee of the Fund and either party have liberty to apply as to the implementation or enforcement of Orders 20 to 25 inclusive of these Orders upon the giving of seven (7) days’ written notice to the parties.
27.Unless otherwise specified in these Orders and except for the purposes of enforcing payment of any money due under these or any subsequent orders:
(a)each party retain to the exclusion of the other all property in the possession of or registered in the name of that party as at the date of these Orders including but not limited to any jewellery, furniture, furnishings, shares and motor vehicles;
(b)monies standing to the credit of the parties in any joint bank accounts are to be divided equally between the parties and the parties do all acts and sign all documents necessary to close any such accounts;
(c)each party is solely liable for and indemnifies the other against any credit card debts, personal loans and debts of whatsoever nature and kind in that party’s name;
(d)insurance policies remain the sole property of the named owner;
(e)each party is solely liable for, and indemnifies the other against, any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)any joint tenancy of the parties in any real or personal property is hereby expressly severed.
28.Each party do all acts and things and sign all documents necessary to give effect to these Orders within fourteen (14) days of being requested to do so.
29.Each party has liberty to apply as to the enforcement or implementation of these Orders.
30.Pursuant to s.117 of the Family Law Act 1975 (Cth), the Husband pay the costs of the Wife reserved on 7 May 2021 fixed in the sum of $1,120.00 and the costs of this day according to the court scale fixed in the sum of $3,922.00, a total of $5,042.00.
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 under the pseudonym Jewell & Jewell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BENDER:
INTRODUCTION
This is the Mother’s application for both parenting and property orders following the breakdown of the parties’ marriage in May 2020.
The Mother filed an Initiating Application on 8 December 2020 which was served on the Father on 18 December 2020. The matter came before Registrar Sudholz on 16 March 2021. On that date, the Father was represented by Bayside Solicitors but had not filed any answering material.
Registrar Sudholz made orders for the Father to file answering material by 13 April 2021, directed the parties to attend a Conciliation Conference on 25 May 2021 and adjourned the matter for mention on 26 June 2021. Registrar Sudholz also ordered there be a compliance mention on 7 May 2021 to ensure that the Father had complied with all of the Court’s orders.
Registrar Sudholz also made interim parenting orders that the parties’ children X born 2006 (“X”), Y born 2009 (“Y”) and Z born 2011 (“Z”) live with the Mother and the Father undertake supervised urine drug screens within 24 hours of a written request to do so by the Mother’s solicitors.
At the time, Registrar Sudholz made no orders for X, Y and Z to spend time with their Father given his lack of answering material and the concerns raised by the Mother in her affidavit material about the Father’s use of illicit substances.
Registrar Sudholz also made interim orders in relation to property matters. These included a requirement that within 14 days, the Father vacate the former matrimonial home at B Court, Town C in the State of Victoria (“the real property”) and orders restraining the parties from further encumbering the real property, drawing down on the mortgage, or damaging the real property. Registrar Sudholz also made orders for mutual financial disclosure.
The Father failed to file answering material as ordered by Registrar Sudholz. On 6 May 2021, the Father’s solicitors filed a Notice of Ceasing to Act. The matter came before Registrar Sudholz on 7 May 2021 for a compliance mention. There was no appearance by or on behalf of the Father on the date.
Registrar Sudholz ordered the matter be adjourned for an undefended final hearing on 26 July 2021. The Registrar made orders for the Mother to file and serve a trial affidavit by 28 June 2021 and she serve the Father with the orders made by Registrar Sudholz and the Mother’s trial affidavit personally if possible and if that was not possible then she was to serve him by email.
Registrar Sudholz also made detailed notations as follows:
A. The Husband is on notice that an order to vacate the property means that he is not to attend at the property unless agreed in writing by the Wife or by Order of the Court.
B. The Husband is no longer represented and did not appear at today’s hearing.
C. It is the Wife’s case that the Husband has not complied with any of the previous orders (including discovery, urine screens, vacating the property) and is in fact causing destruction to the property of the parties.
D. The Wife should attempt service upon the Husband via process server but if it is unable to be effected due to homelessness of the Husband, then the Registrar’s order above permits service by email.
E. The Husband is on notice that the Wife will seek to proceed on an undefended basis should the Husband fail to file responding material or appear at the hearing and this means that the Orders sought by the Wife (including for 70/30 division of the property) are the only orders submitted by either party to be made by the Court.
F. In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a) the filing of documents; or
(b) any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
G. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Judge, or by another appropriate court officer, shortly prior to the final hearing date.
The Mother has complied with the service and filing requirements of Registrar Sudholz’s orders dated 7 May 2021. The Father has not filed material or appeared today.
The Mother’s representative, Ms Song, advises the Court that the Mother had a conversation with the Father this past weekend and he told her he would not be participating in the proceedings in any way.
In all those circumstances, the Mother seeks that this matter proceed today on an undefended basis.
I am satisfied the Father is aware of today’s hearing and the applications before the Court and the implications for him if he fails to participate in these proceedings. He has chosen not to do so. I am therefore of the view that the Mother’s application in this matter should proceed on an undefended basis and the matter be heard today.
The Mother is seeking parenting orders to be made that she have sole parental responsibility for X, Y and Z, that they live with her, that she keep the Father appraised of any medical issues that arise in relation to the girls, that each parent can liaise with the girls’ schools and that she be permitted to travel with the girls both interstate and overseas and obtain a passport for them without the Father’s permission.
The Mother is seeking property orders restraining the Father from dealing with the real property and orders that will enable her to complete the renovations and repairs to the real property and to then sell it. She seeks that the net proceeds of sale be divided as to 70% to her and 30% to the Father.
The Mother seeks that she be reimbursed for the costs incurred by the parties in repairing the damage done by the Father to the real property and removing the rubbish that was left by him.
The Mother seeks a splitting order equalising the parties’ superannuation entitlements, the amount to be determined on the basis of the parties’ superannuation entitlements at separation.
BACKGROUND
The Mother was born 1987 and is aged 34 years. She is a healthcare worker employed by Employer G on a permanent part-time basis, working eight shifts per fortnight. She earns $65,000 a year. She has not re-partnered.
The Father was born 1987 and is aged 33 years. He is a qualified tradesman. It is unknown whether he is currently employed. The Father’s notice of assessment for the financial year ending 30 June 2020 discloses he earned $64,257.
The parties commenced a relationship in 2005 and married 2008 at which time they commenced full-time cohabitation. They separated in May 2020.
Neither party had assets of any significance when they married. The parties purchased the real property in August 2008 for $242,500. The deposit came from their joint savings and they borrowed $220,000.
Prior to separation, the parties decided to renovate the real property. They refinanced the mortgage by borrowing an additional $205,000. The Mother and the girls moved to the maternal grandmother’s home in May 2020 to enable the renovations to commence. My understanding is that the Father, at least initially, remained living in the garage at the real property.
It is the Mother’s evidence that in 2011, the Father disclosed to her that he was using illicit substances. It is the Mother’s evidence that the Father continued to use various illicit substances as well as drinking to excess. In September 2020, the Mother found documents at the real property that revealed the Father’s friends who were spending time with him at the real property had, or have, serious police charges relating to drug issues. It is the Mother’s evidence that on subsequent visits to the real property she found drug paraphernalia in the house.
It is the Mother’s belief that the Father continues to use illicit substances, including marijuana, ice, and speed. The Mother’s solicitors have requested the Father undertake supervised drug screens on several occasions. He has failed to do so each time.
X, Y and Z spent unsupervised time with the Father on a number of occasions immediately post-separation. Because of the Father’s failure to undertake drug screens and the concerns about his behaviour and the friends he was seeing at the real property, the Father has only spent limited time with X, Y and Z since November 2020. This time is supervised by either the Mother or the Paternal Grandmother who continues to regularly see the girls independently of the Father.
It is the Mother’s evidence that in breach of the orders made on 16 March 2021, the Father has not vacated the real property. On several occasions the Mother has visited the real property in relation to the ongoing renovations. She has found the Father’s clothes on the property. The neighbours report that the Father regularly comes and goes from the real property.
On 21 June 2021, the builder undertaking the renovations and repairs to the real property contacted the Mother to report the garage had been broken into and a brand-new air conditioner that was to be installed in the real property had been taken. The Father has admitted to breaking into the garage but denies taking the air conditioner.
It is the Mother’s evidence that she visited the real property on 17 April 2021 and found damage to the garage, the letterbox, plumbing as well as marks and graffiti on the walls. It is her evidence that in discussion with the Father, he conceded that he was responsible for the damage. The Mother has obtained a quote for the repairs to the damage in the sum of $8,950. Photos of the damage and a copy of the quote are annexed to the Mother’s trial affidavit filed 28 June 2021.
It is the Mother’s evidence the Father has left significant rubbish and junk around and in the real property. The Mother has also annexed photos of this to her trial affidavit. It is fair to say the property is a mess. The Mother has engaged rubbish removalists at a cost of $2,865 to remove the junk and the rubbish.
The Mother has also discovered the Father has removed the washing machine, dryer and fridge from the real property which he has left at the local milk bar as collateral for his food and beverage tab. The milk bar owner left a note at the real property on 14 April 2021 requesting the Father pay his outstanding tab or they would have to sell the whitegoods held by them to meet those costs.
It is the Mother’s evidence that immediately after separation, the Father began to withdraw moneys from the mortgage refinance to meet his personal expenses. Those withdrawals totalled $9,020. He received a further $2,000 by agreement between himself and the Mother. In more recent times the Mother authorised the Father to receive an additional $5,000 to purchase a motor vehicle. On 9 July 2021, the Mother transferred $175,082 of the remaining mortgage moneys to her personal account to prevent the Father from further drawing down on those funds.
The Court was advised that the amount of $88,000 has been expended thus far to complete stages 1 and 2 of the renovations, and that a further $50,000 will be required to complete the renovations. After the renovations are completed, the amounts that the Father has received are taken into account and the repairs and the rubbish removal are paid, there will be approximately $35,000 of the drawdown remaining. This will be put back into mortgage when the real property is sold.
At separation, the Father’s superannuation was $81,767. The Father has advised the Mother that he has withdrawn $20,000 from his superannuation since separation as was permitted under the government’s Covid-19 hardship rules. The Mother believes that the Father has expended all those moneys for his own purposes.
PARENTING MATTER
Introduction
In relation to parenting matters, the orders that are sought by the Mother have been set out in paragraph 14 to this judgment.
It is the Mother’s evidence that she has been X, Y and Z’s primary carer since their birth. Since separation, they have lived solely in her care, spending very limited time with the Father.
The tenor of the Mother’s affidavit is that she is quite saddened that the Father has not stepped up to be more involved with his daughters. She speaks positively, in fact quite glowingly, of the Father’s involvement with the children when they were together, and particularly when they were younger. It is apparent that the girls miss him and that in other circumstances the Mother would embrace him having regular time with them.
Ms Song has advised the Court that as recently as this last weekend, X, Y and Z spent time with their Father on both Saturday and Sunday. This occurred because the Mother is prepared to facilitate time between the girls and their Father.
The Father has chosen not to participate in these proceedings. On a sadder note he is not making any effort to spend regular time with X, Y and Z, nor has he done everything he needs to do to be the Father that they deserve. I can only hope in the future that the Father gets his life back in order because it is apparent that if he does, the Mother will make sure that X, Y and Z are afforded every opportunity for a meaningful relationship with him.
Today, I am faced with a situation where the Father has not put his hand up to be actively involved in relation to the decisions that need to be made for his children or to be a regular component of their lives.
Part 7 of the Family Law Act 1975 (Cth) (“the Act”) sets out the considerations the Court must take into account when making parenting orders. The overriding requirement is that any order be in the best interests of the children.
In this case, the Mother has shouldered full responsibility for X, Y and Z since separation and is doing a terrific job. Her affidavit describes three delightful young ladies who are doing well despite what must be a considerable level of distress and confusion about where their dad has gone. This is a genuine reflection of how well the Mother is doing. An order that sees the Mother continuing to have the sole parental responsibly that she has had for the girls since separation clearly is the only one available to the Court and reflects their best interests.
Similarly, an order that the children live with the Mother and that the practical orders that she seeks are the only orders that meet their needs at this point in time.
I am satisfied that these girls will have a relationship with their Father because their Mother will make sure that happens.
The orders that the Mother is seeking today clearly are the only ones available to this Court when the children’s best interests are considered and I intend to pronounce the orders sought by her.
PROPERTY MATTER
Introduction
In relation to property matters, the orders sought by the Mother are set out in paragraphs 15 to 17 of this judgment.
The Law
Section 79 of the Act defines the Court’s powers in determining applications for property settlement after the breakdown of a marriage. Section 79(2) of the Act provides that:
(2) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under s.75(2) of the Act are as follows:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The High Court in the matter of Stanfordv Stanford [2012] HCA 52 held that, prior to making orders that adjust any interest in the property in which the parties have an equitable interest, in accordance with the provisions of the Act, the Court must first determine that it is just and equitable to make such orders. The High Court in Stanford (supra) held that in the majority of matters, the decision as to whether it is just and equitable for the Court to make orders adjusting the parties property interests is resolved by the breakdown of the marital relationship and the mutual desire of both parties for orders altering their respective property interests.
Whilst there is not a mutual application before the Court by the parties to alter their property interests, it is apparent that in circumstances where the only asset of the parties is held jointly and there has been a breakdown of the relationship, it is just and equitable that orders be made that enable a finalisation of the parties’ financial relationship so that they can move on independently of each other.
I am therefore satisfied that it is appropriate I should be addressing orders that alter the parties’ equitable property interests.
Prior to the decision in Stanford (supra), a trial judge would in most cases follow the four-step approach in determining how to alter property interests between the parties as articulated in the Full Court decision of Hickey& Hickey [2003] FamCA 442. The four-step process in Hickey is as follows:
(a)firstly, the court will determine the nature of the property pool and attribute valuations;
(b)secondly, the court will consider the contributions of the parties to the property pool, including direct and indirect financial contributions, and non-financial contributions, often in the form of homemaker and parent;
(c)thirdly, after considering entitlements based on contributions, the court determines whether any further adjustments to either party’s entitlement is proper given the considerations under s.90SM(4) of the Act;
(d)finally, the court stands back and considers whether the proposed division of property is just an equitable pursuant to s.90SM(3) of the Act.
The High Court in Stanford (supra), and subsequently the Full Court in the matter of Bevan & Bevan [2013] FamCAFC 116, observed that this four-step approach should not be rigidly followed. However, the Full Court in Bevan (supra) indicated that in the majority of property cases, the four-step approach is an appropriate manner in which to approach the determination of the division of property between parties once the court is satisfied that such division is just and equitable.
I am satisfied that this is a matter where the four-step approach of Hickey (supra) is the appropriate approach to take to determine a just and equitable division of property between the parties.
Assets and liabilities
In circumstances where the Respondent has failed to participate in the proceedings and make full and proper disclosure, the Court’s capacity to have a complete understanding of the parties’ assets and liabilities is difficult.
The Mother filed a detailed trial affidavit on 28 June 2021. I am therefore satisfied that I am properly cognisant of what the parties’ assets and liabilities are save and except for the Father’s current income and superannuation entitlements.
The major asset of the parties is the real property. In the Outline of Case document filed by the Mother she estimates its value as being approximately $625,000. However the real property is currently being renovated and once the renovations are complete, it will be sold. In these circumstances the value of the real property will be determined by the market upon sale.
The Mother has a D motor vehicle worth $4,000 and the Father has a E motor vehicle worth approximately the same amount.
The mortgage secured by the real property is $443,000. This includes the sum of $101,651 currently available on the drawdown for the renovation.
The renovations yet to be completed on the real property are estimated to cost $50,000. The cost for damage done to the property by the Father and the removal of the rubbish left by him is $11,814.99.
Therefore the parties’ realisable assets total approximately $633,000.00 and their liabilities are approximately $408,000, leaving net assets of approximately $225,000. This figure is of course subject to the sale price of the real property.
The Father’s superannuation interests at separation was $81,767 and the Mother’s was $5,783.
Contributions
The evidence before the Court is that during the relationship the parties’ contributions were fairly equal. The Mother was the primary caregiver and was also engaged from time to time in paid employment. The Father was in full time employment supporting the family.
Post-separation the Mother has made the greater contribution in relation to parenting the children. She has solely borne the costs of the mortgage and other outgoings in relation to the real property in circumstances where she has not been living there. She has been responsible for managing the renovations and dealing with the builders and tradespersons involved in those renovations.
In contrast, the Father has damaged the real property, left it in a poor condition, has allowed persons on the premises to use drugs and behave in an anti-social manner and has used the contents of the home to meet his living expenses in circumstances where it appears he has quit his well-paid job and is either working from cash or, from the Mother’s evidence, struggling to get by.
Sadly, I am advised by the solicitor for the Mother that the Father’s issues in relation to illicit substances remain live.
The Father has paid no child support in relation to X, Marely and Z since separation. The financial responsibility as well as the practical responsibility relating to their care have fallen on the Mother’s shoulders. The evidence before the Court is such that any future potential support from the Father is questionable.
In those circumstances I am satisfied that the Mother’s post-separation contributions exceed those of the Father and there should be a loading in her favour for contributions of 5%.
S75(2) factors
It is clear on the evidence that the Mother will continue to bear most, if not all, the responsibility for the parties’ three daughters, who are only aged 14, 11 and 9 years. She will do so without the financial or practical assistance from the Father at least in the short term and possibly in the medium term.
There is little difference between the parties’ earning capacity albeit at the moment it appears the Father is not working in regular paid employment.
In all those circumstances I am of the view that there should be an adjustment in the Mother’s favour for s.75(2) factors and that that adjustment should be 15%.
Costs of repairs and rubbish removal
The Mother is seeking she be reimbursed for the costs incurred to repair the damage done by the Father to the real property post-separation as well as the removal of the rubbish left by him, such costs totalling $11,514.99. These costs are a direct result of the Father’s behaviour and the Mother should not be responsible for them. The monies to pay for the repairs and rubbish removal will come from the mortgage drawdown. If those costs had not been incurred the net proceeds of sale would have been increased by that sum. Therefore orders will be made that from the Father’s 30% of the net proceeds of sale, he pay the Mother the sum of $8,270.49 which reflects the amount she would have otherwise received from the net proceeds of sale if the cost of the repairs and rubbish removal had not been incurred.
Just and equitable
I am satisfied that this distribution will leave both parties with an amount sufficient for them to be able to move on with their lives. The Mother has the responsibility for the parties’ three children X, Y and Z and therefore her ‘start’ amount should be and is greater than that of the Father.
I am therefore satisfied that the outcome is just and equitable.
Superannuation
The Mother seeks there be an order made which will equalise the parties’ superannuation entitlements. I agree such an order is appropriate, the issue for determination is what figures should be used in determining what the base figure for that superannuation splitting order should be.
The Father’s current superannuation entitlement is unknown. It is the Mother’s evidence the Father has removed $20,000 from his superannuation since separation and has utilised those funds for his own purposes. The Mother argues that in these circumstances the parties’ superannuation entitlement at separation should be used to calculate the appropriate figure to be included in a superannuation splitting order.
In circumstances where the Father is not working through his own choice and has not accepted responsibility for his own upkeep and support, I agree with the submissions of the Mother that the figures appropriately used in this instance to determine the figure to be used in the splitting order is the amount of the parties’ superannuation entitlements at separation.
The Mother calculates the base amount for a splitting order in her favour is $37,992. I accept that calculation. As procedural fairness has been afforded to the Father’s superannuation fund, a superannuation splitting order will be made in the terms sought by the Mother.
Terms for the sale of the real property
The Mother seeks orders be made that will enable her to have the conduct of the sale of the real property. I am satisfied such orders are not only appropriate but necessary. Given the Father’s failure to participate in these proceedings there is a real possibility that he will not co-operate in signing the necessary documents to enable the sale of the real property in a timely manner or at all.
COSTS
The Mother is seeking an order that the Father pay her costs reserved by Registrar Sudholz on 7 May 2021 when the Father failed to appear. She also seeks her costs of today.
Section 117(1) of the Act provides that, generally in family law proceedings, each party bears the responsibility of their own legal costs. However, s.117(2) of the Act gives the court the discretion to make alternative orders in relation to costs, including that one party pay the costs of the other. Section 117(2A) of the Act sets out the factors that the court can consider when contemplating the question of whether one party should pay the costs of the other. Section 117(2A)(c) provides that the Court can take into account the conduct of the parties to the proceedings.
In this matter the Father has failed to participate in these proceedings after the first date. On the first date very little could be achieved because the Father had not filed any answering material despite him having been served some three months prior to that return date.
The Mother argues that if the Father had participated in these proceedings, it was a matter very capable of resolution and she has unnecessarily incurred additional costs to have the matter come to Court today and be determined.
I am satisfied that the Father’s conduct is such that the Mother has been put to unnecessary costs. I am therefore satisfied an order should be made that the Father pay the Mother’s costs reserved on 7 May 2021 and of today.
Having looked at the scale under the Federal Circuit Court Rules 2001 the scale costs payable by the Father for the Mother’s costs total $5,042 being $1,120 for the costs reserved on 7 May 2021 and $3,922 for today.
Orders will be made for the Mother’s costs of $5042.00 to be paid from the Father’s share of the net proceeds of sale of the real property.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Associate:
Dated: 9 September 2021
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