Kennedy and Masuyo (No 2)

[2012] FamCA 533

FAMILY COURT OF AUSTRALIA

KENNEDY & MASUYO (NO. 2) [2012] FamCA 533

FAMILY LAW – DE FACTO PROPERTY – where the parties’ main asset is the former family home which is situated on land that is native title – where the de facto wife is the traditional owner of that land – where the land cannot be sold or transferred – where the de facto husband asserts he substantially improved the dwelling on the land – where it is necessary to do justice to grant injunctions to give the use of the land to the de facto wife.

Family Law Act 1975 (Cth)

APPLICANT: Mr Kennedy

RESPONDENT: Ms Masuyo

FILE NUMBER: CSC 196 of 2010

DATE DELIVERED: 3 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 22 June 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Bottoms English

Orders

1. Pursuant to s 90SM and s 90SS(1)(k) Family Law Act 1975 (Cth) an Order be made in accordance with paragraphs 2 to 5 below.

2. A declaration that the applicant Ms Masuyo has sole right, title and interest in the land situated at X Island in the Torres Strait, Queensland (“the subject land”).

3. The de facto husband relinquish any right, title or interest (if any) that he has in the subject land.

4. The de facto husband forthwith vacate the subject land.

5. Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively or any other debt in their respective names.

6. Pursuant to s 114(3) Family Law Act 1975 (Cth), the de facto husband be restrained and an injunction be granted restraining the de facto husband from causing damage to the subject land or any structure on the subject land.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kennedy & Masuyo 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 SYDNEY

FILE NUMBER: CSC 196 of 2010

Mr Kennedy

Applicant

And

Ms Masuyo

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties live in the Torres Strait Islands and had a relationship spanning over 14 years. There are two children of the relationship.

2. Ms Masuyo is indigenous, but Mr Kennedy is not. The central dispute in this case is about land on X Island (“Lot 44”), which the de facto wife asserts is traditionally owned by her. The de facto husband and his new partner, Ms N, are living in the former family home on X Island. The de facto wife is residing on Z Island with the younger child, for whom she was given sole parental responsibility.

3. The matter initially came before me to determine what parenting arrangements were in the children’s best interests. At the outset of the initial hearing, Ms Masuyo applied for injunctive orders seeking Mr Kennedy leave their former home so she could enjoy the benefit of it. During the hearing, Ms Masuyo withdrew that application and made an oral application for an overall alteration of property interests.

4. There was contention about whether the parties had separated after 1 March 2009 and whether or not the matter could be dealt with under the de facto property laws in the Family Law Act 1975 (Cth) (“FLA”).

5. The matter was part heard on 29 February, and 1 and 2 of March 2012. On 18 June 2012, I made a finding and declaration that a de facto relationship existed between the parties which ended after 1 March 2009, meaning the de facto property provisions of the FLA operated to govern the parties’ financial relationships.

APPLICATIONS

1. Both parties seek an order for alteration of property interests pursuant to s 90SM FLA. As part of that order, each seek injunctive orders pursuant to s 90SS(k) FLA.

2. The de facto wife seeks a declaration that she is the traditional owner of the land at X Island. She also seeks an order that the de facto husband vacate the land, relinquish any title he holds in the land (if any) and that he be restrained from causing damage to the land, or any structure on it.

3. The de facto husband seeks to continue residing in the property on X Island. He also seeks to have his son D declared as the traditional owner of the land. 

DOCUMENTS RELIED UPON

1. The applicant de facto wife relies on the following:

   9.1.Amended Initiating Application filed 14.03.2012

   9.2.De facto wife’s affidavit filed 24.05.2012

   9.3.De facto wife’s affidavit filed 28.03.2012

   9.4.De facto wife’s financial statement filed 14.03.2012

   9.5.Affidavit of Ms SR filed 29.05.2012

   9.6.Affidavit of Ms B filed 27.02.2012

2. The respondent de facto husband relies on the following:

   10.1.Response to Initiating Application filed 30.03.2012

   10.2.De facto husband’s affidavit filed 30.03.2012

   10.3.De facto husband’s financial statement filed 30.03.2012

3. Other material relied upon:

   11.1.Affidavit of Mr R filed 28.04.2011

SHORT HISTORY

1. The de facto wife was born in 1960 and is now aged 51.

2. The de facto husband was born in 1961 and is now aged 50.

3. The parties met in 1994.

4. The child D was born in July 1995 and is now aged 16.

5. The parties commenced cohabitation in September 1995.

6. The child L was born in July 2000 and is now aged 12.

7. The parties separated in 2009 (after 1 March 2009).

CREDIT

De facto wife and de facto husband

1. In my reasons of the 18 June 2012, I have previously said that it was not necessary to make credit findings to determine matters which are covered by the orders made on the 18 June 2012. I incorporate the discussion about the credit of the parties in my reasons of 18 June 2012 into these reasons.

2. During cross examination, the de facto husband attempted to cast doubt on the de facto wife’s financial statement. The de facto wife conceded she had disclosed superannuation of $4000, but was in the process of rolling over “not more than $20,000” from other superannuation accounts to her SunSuper account. I do not find that was a deliberate omission.

3. The de facto husband gave conflicting evidence about who had title in the land. Initially, the de facto husband agreed the land was “probably hers [the de facto wife’s].”  However, on the last day of the hearing, the de facto husband seemed to draw a very fine distinction. He said he “accepted” the de facto wife was the rightful owner but did not “agree” she is the rightful owner.

4. The de facto husband was candid about the destruction he caused to the house in 2004.

5. Again it is not necessary to make findings about the credit of either party in order to determine the issues in this hearing.

DETAILED CHRONOLOGY

1. The de facto wife was born in 1960 and is now aged 51.

2. The de facto husband was born in 1961 and is now aged 50.

3. The de facto wife’s first child F Masuyo was born in 1984.

4. In 1991, the de facto wife was elected to the position of Chairlady of X Island Community Council. She remained in this role for three years.

5. The parties met in 1994 in Cape York.

6. The parties’ first child D was born in July 1995.

7. The parties commenced cohabitation in September 1995.

8. In November 1997, the parties moved to X Island. The X Island Council wanted to demolish the property on Lot 44 because it was in a state of disrepair.

9. In 1999, the parties took out a joint loan from the National Australia Bank for $11,000 to purchase a Landcruiser. Both parties made repayments towards that loan.

10. The parties’ second child L was born in July 2000.

11. During 2004, following an argument between them, the de facto wife asserts that the de facto husband drove their car into the house, destroying the front extension. The de facto husband admits he did this.

12. In November 2007, the de facto husband relocated to Cairns. He commenced a relationship with another woman.

13. In February 2008, the de facto wife and children moved to Cairns and the parties attempted to reconcile their relationship.

14. In May or June 2008, the de facto husband relocated back to X Island leaving the children with the de facto wife in Cairns.

15. In August 2008, the parties agreed that the children would relocate back to X Island to live in the family home with the de facto husband. The de facto wife remained working in Cairns and had regular contact with the children.

16. In May 2009, the de facto wife moved from Cairns back to X Island. The parties briefly attempted to reconcile.

17. In 2009, the de facto wife’s father passed away. He had been the traditional owner of Lot 44.

18. The parties separated in 2009 (after 1 March 2009). This was a finding and declaration which I made pursuant to s 90RD(2)(d) FLA on 18 June 2012.

19. In July 2009, the de facto wife relocated with L from X Island to Y Island while the de facto husband was away working on the mainland. She now resides on Z Island.

20. In 2011, the de facto husband purchased a boat for $35,000.

21. On 18 June 2012, I made parenting orders which allowed D to spend time with his parents as he chooses. The de facto wife was given sole parental responsibility for L and an order was made that L live with her. L was to spend defined time with his father upon certain conditions.  A series of other orders were made aimed at keeping L safe and minimising conflict between the parties.

22. On 22 June 2012, the final day of this hearing, it was mentioned that D was currently living with the de facto wife on Z Island.

THE DE FACTO WIFE’S INTEREST IN PROPERTY ON X ISLAND

1. Ms B, an X Island elder, deposed that the de facto wife’s land was passed on to the de facto wife when her mother moved from X Island to Z Island. This evidence contradicts the de facto wife’s own evidence that Lot 44 was her father’s house. The de facto wife says her father remained on X Island until the early 1990s, when he moved to Y Island. She asserts that in 1991 “[her] dad told [her] the land was going to be [hers] and [she] had to look after the land and the house.”

2. Ms B said that “when the boys turn 15 or 16 they may be initiated by the elders to become a man. Then they will be the descendant owners of the land.”

3. Ms B gave oral evidence about the traditional practices of property transfer on X Island. She said that the sale of the de facto wife’s land would have to be approved by the Council of Elders, and it would only be approved if the purchaser was a relative of the de facto wife; in this case, her children. Ms B pointed out that if the de facto wife passed away, the property would be handed down to her eldest child F, and “[F] will be the one to share with his other two brothers.” Ms B agreed that even though the parties had both significantly improved the dwelling on the land, “the land is still [Masuyo’s] [the de facto wife’s].”

4. Ms B also stated that the property could only be rented by a person from X Island, and a tenancy agreement must be approved by the Council of Elders.

5. In his written report, Mr R states that the children D and L are “maternally direct descendants of [Mr U]”, the clan chief of the local clan of X Island. He states that the children will “have inheritance on [X] Island and therefore when coming off [sic] age, will be regarded as Traditional Owners of the Land.” Mr R did not mention the de facto wife’s eldest son F.

6. In his report, Mr R states that the de facto wife is also considered the traditional owner of land owned by Mr U, being gardens and the like at several locations. The children will also have a right to those lands.

7. During his oral evidence, Mr R clarified all three of the de facto wife’s children would be considered the traditional owners of the land when she passed away, “but they [the three children] will have to decide which land [goes] to who[m]”. This was the case even though the de facto wife’s eldest child F had been traditionally adopted by the maternal grandmother. Mr R later said that “because he [F] has been away from the [X] Island most of the time”, he would only have a larger role in dividing the land if the elders granted him that privilege.

8. The de facto husband accepted that the legal situation was that the whole of X Island is covered by native title.

9. The de facto wife refers to [X] People v State of Queensland [citation omitted]. In that native title decision, Drummond J said, inter alia:

   2. It is clear that for many years before [X] Island was annexed to the State of Queensland in the 1870s, the people of [X] were its traditional owners. This fact and the nature of the links between the people of [X] and their lands was observed by officials of the Queensland Government who came to the island soon after annexation. The Acting Government Resident at Thursday Island, Hugh Milman, who visited this place in 1886, noted these things and reported to his superiors that there is no doubt that every acre has a reputed owner, that every grove or single tree of any value has its proper and legitimate hereditary owner.

   3. The people of [X] in the past included distinguished marine hunters as well as fierce warriors. They were not only experts in exploiting their surrounding seas, but they were highly skilled seafarers who travelled far distances in order to obtain desired resources through trade or warfare. These long-held traditions are reflected in the splendid welcoming ceremony performed today.

10. His Honour went on to make a declaration that native title existed in respect of X Island and a further declaration that persons holding that title are the “…, the people of [X Island].” In the evidence before me, the Torres Strait Islander people use the spelling “…”. In this case, the spelling conventions are inconsistent but it is meant to be the same word.

11. Justice Drummond indicated the “interests of the [X] Island Council and persons under Deed of Grant in Trust granted [in] October 1985 under the Land Act 1962 (Qld) to [X] Island Council” were to be recognised as part of the native title.

12. Tendered before me on 2 March 2012 (exhibit 5) was a town map of X Island which includes lot 44 as a private allotment of native title. In paragraph 10 of the de facto wife’s affidavit filed 28 March 2012, she says:

    Between 1986 and 1989 Deed of Grants in Trust came into place. [It appears that the de facto wife incorrectly stated the year; the correct year being 1985] The block was marked as “private” during that time by the Council because the land was occupied by the family for over three generations. “Private” means that the land is only accessible to the [Masuyo] family.

13. The de facto wife did not have a copy of the 1985 Deed of Grant in Trust. I am however satisfied (particularly given the de facto husband’s concession) that Lot 44 is subject to native title flowing from the decision in [X] People v State of Queensland.

APPROACH

1. In this matter my task is to:

   59.1.Identify and value the property, assets, financial resources and liabilities of the parties;

   59.2.Identify relevant contributions and assess them;

   59.3.Consider relevant matters referred to in Section 90SM(4)(d) – (g) FLA;

   59.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.

ASSETS OF THE PARTIES

1. The de facto husband has assets of about $100,416, which comprise money in his personal bank account ($2050); money in his business bank account (BA Company) ($1852); the value of the de facto husband’s business operating as BA Company ($40,000); two motor vehicles ($3900 and $500), a boat and a dingy ($35,000 and $5000); household contents ($3500) and an interest in a deceased estate ($8614). The de facto husband has $29,485 in superannuation interests. He has $17,000 in credit card debts and a $1000 freight bill. Overall, the de facto husband’s net assets are therefore in the sum of $111,901.

2. The de facto wife has what is probably a life interest in Lot 44 M Street, X Island. She is unable to sell that interest. She is able to derive an income from leasing that property. The de facto husband asserts in his financial statement that the value of this asset is $230,000, but there is no reliable basis upon which I could conclude that estimate is accurate. The de facto wife has household contents ($500) and no assets apart from approximately $24,000 in superannuation. She has a personal loan of $1200 and a debt to Telstra of $1260. Her net assets are about $22,040.

3. The total pool (excluding Lot 44, M Street) is $133,941.

CONTRIBUTIONS

Initial Contributions

1. The de facto wife believed at the start of the parties’ cohabitation that she would receive title to Lot 44, M Street, X Island, and in fact she subsequently did so.

2. Otherwise, neither party brought significant assets to the relationship.

Financial Contributions

1. Both parties worked intermittently during their relationship.

2. The de facto wife says that she received a lump sum payment of $7000 for underpaid wages. She asserts that money (and some savings) was used to renovate the house on X Island.

3. The de facto husband concedes that the de facto wife made a financial contribution towards the renovation “only as when we moved there.” He asserts that his income paid for the majority of the renovation of the house.

4. The de facto wife asserts the parties purchased a four metre dinghy during their relationship. She says she put $2000 towards the purchase, and the de facto husband put $3000 towards the purchase. She says they also purchased a motor. The de facto husband denies the de facto wife contributed to the purchase of the dinghy. The de facto husband agrees he has retained this dinghy. 

Non-Financial Contributions

1. The de facto husband asserts that he built a house and shed on the land.

2. The de facto wife admits that the de facto husband completed the installation of the internal walls. However, she asserts that she “assisted with all of the other renovations”. She also says that some of their friends were trades-people and also helped renovate the house.

3. The de facto wife submitted that she was the primary carer of the two children, although the children were placed into care twice and lived with the de facto husband for approximately a year while the de facto wife was in Cairns.

Post Separation Contributions

1. The de facto wife has been the primary carer of L since separation.

2. The de facto husband has supported D, although he has primarily resided away from X Island. He is temporarily living with the de facto wife.

3. The de facto husband has received a small interest in a deceased estate.

FUTURE NEEDS - SECTION 90SM(4)(d) –(g) MATTERS

1. The parties’ youngest child who is aged 12 years resides with the de facto wife. She has sole parental responsibility for him, pursuant to Order 4 made on the 18 June 2012.

2. Pursuant to Order 2 made on 18 June 2012, the de facto husband has sole parental responsibility for D, who is almost 17 years of age. D usually resides on Y Island so he can complete his secondary schooling.

3. The de facto husband is paying the de facto wife $8 per week by way of child support for L. She says child support payments are irregular and the de facto husband has made no contribution to L’s school fees or expenses.

4. The de facto wife receives wages of $150 per week from working at Z Island Airport.

5. The de facto husband has regular income from his part time job …. The de facto husband also does contract work in his business BA Company. The de facto husband’s evidence at trial was he has not got current contract work. It may well be that if the de facto husband is prepared to move off X Island, his financial position will improve significantly.

6. The de facto husband argues that he has lived at this property Lot 44 for a period of 14 years (although not continuously through that period) and that it is his base for his current work. That argument has some weight. However, the de facto husband is residing with his partner Ms N. I have evidence that Ms N traditionally owns some land on X Island, and that she currently earns $200 per week. On the second day of the hearing, the de facto husband also gave evidence that he might be able to reside in another part of X Island (with the X Council’s permission). However on the last day of the hearing, the de facto husband, said “I would…have to make arrangements to move from [X] Island but I’ve only had to take these steps [pursuing litigation] so I have access to my children.”

1. The de facto wife in the context of the parties’ limited assets, has a significant claim for an adjustment under s 90SM(4)(d) – (g) FLA matters arising out of her future responsibility for L, the disparity of earning capacity between the parties and the limited amount of child support the de facto wife can expect to receive.

JUST AND EQUITABLE

1. The circumstances of this case are unusual. The parties lived together, with some separations, for periods between 1995 and 2009. There were two children of the relationship. The de facto wife has native title rights to Lot 44 M Street, X Island. The parties improved that property. At the end of the relationship, what is left is approximately $134,000 in net assets and superannuation together with the continuing rights that exist in respect of Lot 44 M Street, X Island.

2. I have found that the de facto wife has native title to that property and that title is one that allows her the use and enjoyment of that land for the time being. It is not entirely clear to me on the evidence as to how long the de facto wife will be able to maintain her title to its property as against her children but Mr R’s oral evidence is that she will maintain a life interest. I am however only deciding or adjusting the rights between the de facto husband and de facto wife in this decision.

3. The de facto wife’s application is that she retain the assets and liabilities that she currently has, including the title to the property at Lot 44 M Street, X Island.

4. The de facto wife has indicated that she does not intend herself to return to X Island if the de facto husband stays there. However, I accept her evidence that she will be able to rent out the property and receive income from that arrangement.

5. The de facto husband will receive about 84 percent ($111,901/$133,941) of the overall remaining net assets (including superannuation) of the parties on the de facto wife’s application. I am satisfied that the orders sought in the de facto wife’s application provides a just and equitable outcome and I shall make orders in those terms.

6. Pursuant to s 90SS(1)(k) FLA, I am able to make injunctive orders which are necessary to do justice. In support of an order that the de facto wife have sole right, title and interest in Lot 44, M Street, X Island, I will make an additional order that the de facto husband vacate that property. Given the history of the de facto husband’s previous damage to the property, pursuant to s 114(3) FLA I will also make an order restraining the de facto husband from doing damage to the land or the structure on the land.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 3 July 2012.

Associate: 

Date:  3 July 2012