Juric and Halmi

[2018] FCCA 3718

FEDERAL CIRCUIT COURT OF AUSTRALIA

JURIC & HALMI [2018] FCCA 3718

Catchwords:
FAMILY LAW – Property.

Legislation:

Family Law Act 1975, s.90SM

Applicant: MS JURIC

Respondent: MR HALMI

File Number: BRC 9406 of 2016

Judgment of: Judge Lapthorn

Hearing date: 5 December 2018

Date of Last Submission: 5 December 2018

Delivered at: Brisbane

Delivered on: 5 December 2018

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

1. That within 28 days the Applicant do all things necessary to remove the caveat from the Respondent’s property located at Property A, in the State of Queensland otherwise described as Lot (omitted).

2. That all outstanding applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Juric & Halmi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9406 of 2016

MS JURIC

Applicant

And

MR HALMI

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before the Court today an application for a property adjustment order as a consequence of the breakdown of a de facto relationship between the applicant, Ms Juric, and the respondent, Mr Halmi.  The applicant is 69 years of age and the respondent 65.  On 8 February this year, Judge Spelleken of this Court granted the applicant leave to proceed out of time as the initiating application was filed on 19 September 2016 and the parties had separated on the applicant’s case in 2011 and the respondent’s case in 2010. 

2. The application was clearly filed out of time.  In support of her case, the applicant relied on her amended initiating application filed on 24 October 2017, her affidavit of evidence-in-chief filed on 29 November 2018 and her financial statement also filed on that date.  The respondent relied on his response filed 19 June 2018, an affidavit filed on 14 June 2018 and a financial statement filed on 19 June 2018.  Neither party was legally represented when the matter came before me. 

3. They obtained legal advice during this morning’s break and consented to the matter proceeding in a less adversarial way, given the modest pool of assets and the limited factual issues that required determination.  The parties commenced to live together in 2001 and, as I said earlier on, the applicant contended for a date of separation in 2011 and the respondent contended that separation occurred under the same roof in 2010 and there was a final physical separation in 2011.  The respondent was married on [date] 2011 to his current wife. 

4. I am satisfied that the difference in the parties’ position as to separation is not material to the outcome of these proceedings.  In determining property proceedings, the Court is firstly required to identify according to ordinary common law and equitable principles, the existing legal and equitable interests of the party in the property that is available for distribution between them.  It is then necessary to determine whether it is just and equitable to make an order altering the parties’ interests in the property.  If so satisfied, the Court must then consider the contributions made by each of them under the various section 90SM, subsection (4) considerations before looking at their future needs. 

5. Turning to the property of the parties, the applicant does not own any real estate.  She has four bank accounts with approximately $26,200 in total.  She also owns a motor vehicle, which she values at $9900, being the insurance value.  The household contents are $2000.  I, therefore, find that she has assets of $28,200.  She has a Visa card liability of $1300.  Her net position, therefore, is $26,900.  The respondent owns a home in Suburb P valued at $25,000. 

6. That valuation has been arrived at by taking into account the purchase price from just two years ago.  He has $2400 in a bank account, a $1000 Ford utility and household contents of $4000.  He does not have any liabilities.  I, therefore, find his net asset position to be $32,000.  I find that the parties’ situations are somewhat similar, although on the evidence that is before me the respondent has a home and the applicant is, in effect, homeless.  She does, however, have cash in the bank.  Turning to consider whether it is just and equitable to alter property interests, in this particular case neither of the parties own jointly with the other any property. 

7. They had done when they were in a relationship, but that relationship now has ended approximately seven to eight years ago.  They do not own any jointly owned property.  I am not at this point in time in position to determine whether it is just and equitable to alter the property interests of either party until I assess the contributions.  However, I must give significant regard to the very modest pool that is before me.  Turning to the contributions of the parties, the parties have had a very modest income stream throughout the relationship and post-relationship. 

8. They have relied on different forms of social security.  There was a significant period of time early in the relationship when the applicant was not in receipt of any income and the financial contributions of the respondent came through his Disability Support Pension.  I am satisfied that, at least until the date of separation, whether that be in 2010 or 2011, there was a greater financial contribution made by the respondent.  I am satisfied though the non-financial contributions between the parties were equal in the provision of services as homemaker and in services to their joint enterprises. 

9. I am satisfied post-separation, the respondent has made a significant contribution to the renovation of a motor vehicle, to which I shall refer in more detail in a moment, had made minimum payments towards the Visa card debt that the applicant was left with at the time of separation and that the applicant has made a significant contribution to that debt by utilising the inheritance received from her mother.  The motor vehicle to which I referred to was a relatively unique motor vehicle that the parties purchased for $14,900 using a Visa card that was in the applicant’s name. 

10. The respondent did not have a credit card and many significant purchases throughout their relationship were made through this Visa card.  Payments for that Visa card were made from an account that the parties held jointly and the deposits to that account differed from time to time but always included the respondent’s social security payments, the applicant’s social security payments when she received them and some significant funds received from the applicant’s mother.  All in all, I am satisfied that when I take into account the payment of the debt by the applicant from her mother’s inheritance and the contributions made by the respondent post-separation to the motor vehicle which, I should say, was ultimately sold for $100,000, but the respondent only received $65,000 of those sale proceeds, I am satisfied that there should be a contribution assessment of 55% to the respondent and 45% to the applicant. 

11. I am not satisfied that I should make any adjustment for the future needs of the parties.  They are of a similar age; they have both had health issues.  I find that neither of them would be able to be employed in full-time employment.  There is only one significant but important difference.  The respondent has a home in which to live; the applicant does not.  I now turn, firstly, to consider whether it is just and equitable that a property adjustment order be made.  I have much sympathy for the applicant’s case.  She was left with a significant debt at the end of that relationship. 

12. The respondent had an asset that grew in value as a result of his efforts and the sale of it ultimately enabled him to purchase a home.  But that is the only significant asset that he has.  If I was to make a property adjustment order, then the only way in which it could be exercised is by the sale of that home.  The home is in a rural community in Queensland and the price for it paid in 2016 was a mere $25,000.  I could not be satisfied that the respondent would be able to sell that property to meet any order made by the Court today. 

13. I also note that the applicant has a similar value in cash – that is, $25,000 – although the respondent made no contribution towards that because that is left over from the applicant’s inheritance.  However, when I have to consider the justice and equity of the case, notwithstanding my sympathies for the applicant, I am not satisfied it is appropriate to make a property adjustment order and I would dismiss the application.  I note that there is a caveat on the property that has been placed there by the applicant which should be removed.  I will order accordingly.  

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date: 13 December 2018