KIDD & KIDD

[2018] FCCA 1350

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIDD & KIDD [2018] FCCA 1350

Catchwords:
FAMILY LAW – Property – undefended – modest asset pool – wife has care of the parties’ three children – husband unlikely to provide any future financial assistance to the wife – orders made as sought by the wife – husband transfer interest in former matrimonial home to the wife – wife pay the husband $150,000.

Legislation:

Family Law Act 1975, ss.75(2), 79(2)

Applicant: MS KIDD

Respondent: MR KIDD

File Number: MLC 10309 of 2017

Judgment of: Judge Hartnett

Hearing date: 20 March 2018

Delivered at: Melbourne

Orders made on: 20 March 2018

Reasons delivered on: 28 May 2018

REPRESENTATION

Solicitor acting as Counsel for the Applicant: Fiona McGregor

Solicitor for the Applicant: Fiona McGregor

The Respondent: No appearance

ORDERS MADE 20 MARCH 2018

1. Within 60 days of 20 March 2018 the wife pay to the husband the sum of $150,000.

2. Contemporaneously with such payment the husband do all things and sign all documents to transfer to the wife at the expense of the wife all of his interest in the real property at Property A.

3. Contemporaneously with the payment the wife refinance the mortgage debt so as to secure the release of the husband.

4. In the event the husband refuses or fails to comply with order 2 herein, the Registrar of the Federal Circuit Court at Melbourne is appointed pursuant to s.106A of the Family Law Act 1975 (Cth) to sign any deed or instrument in the name of the husband and to do all acts and things necessary to give validity and operation to the deed or instrument.

5. Otherwise all extant applications are dismissed and removed from the list of active cases.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10309 of 2017

MS KIDD

Applicant

And

MR KIDD

Respondent

REASONS FOR JUDGMENT

1. On the 5^th day of October 2017, the wife filed an initiating application seeking property orders in the family law jurisdiction of the Court.  Thereafter, the wife filed an amended initiating application dated 13 December 2017.  The Court is satisfied that each of those applications were served upon the Respondent husband.

2. The husband filed a notice of address for service dated 20 November 2017, but then otherwise failed to participate in the proceedings.  Various correspondence was tendered in evidence before the Court on 20 March 2018, when the matter proceeded as a final hearing, which included correspondence to the husband of 14 December 2017, relevantly, as follows:-

   “I refer to the above matter and enclose herewith by way of service upon you the following:

   1. A copy of the order made by Her Honour Judge Hartnett on 15 November 2017;

   2. My client’s amended application. 

   I note that on the adjourned date of  20 March 2018 my client will seek to proceed to obtain final orders on an unopposed basis.”

3. The wife relied upon the following evidence:-

   a)affidavits of evidence sworn by the wife on the 4th of October 2017 and 5 March 2018;

   b)a financial statement sworn by the wife on 4 October 2017; and

   c)an affidavit of evidence sworn by Mr M, a real estate valuer, who prepared a valuation report in respect of the former matrimonial home situated at Property A in the State of Victoria (‘the former matrimonial home’) with such valuation report annexed to his affidavit, sworn 2 February 2018.  That affidavit and its annexure provided evidence to the Court that, as at 22 January 2018, being the date of inspection of the former matrimonial home, and date of valuation, the former matrimonial home had a market value of $700,000.

4. The orders as sought by the wife were the orders the Court made at the conclusion of the matter on 20 March 2018, when the wife’s solicitor appeared on behalf of the wife and there was no appearance by or on behalf of the husband. The matter thus proceeded on an undefended basis. The Court was satisfied on the evidence placed before the Court that, pursuant to s.79(2) of the Family Law Act1975 (Cth) (‘the Act’), in all the circumstances it was just and equitable to make the orders as sought by the wife.

5. These reasons support the making of those orders on 20 March 2018 and are published in circumstances where the husband did not participate in the proceedings. 

6. Statements of fact in these reasons are findings of fact on the balance of probabilities.

History

1. The husband was born on 1976 and is aged 42 years.  The wife was born on 1980 and is aged 37 years.  The parties commenced to reside together in early 2003.  At the commencement of their cohabitation, neither of them had assets of any significance.  Each was in full time paid employment.  The wife was employed as a (occupation omitted) and the husband was employed as a (occupation omitted).

2. The parties married on 2004.  They separated on a final basis on 1 October 2014, having cohabitated together for a period of approximately 11 and a half years. 

3. During the parties’ cohabitation and in 2004, they purchased the real property known as and situated at Property A, (the former matrimonial home) utilising savings they had accumulated to pay a deposit, with the balance of funds obtained by way of mortgage loan.

4. There are three children of the parties’ relationship: [X] born 2005 who is now aged 13 years; [Y] born 2007 who is now aged 11 years; and [Z] born 2009 who is now aged eight years.  Up until the birth of the parties’ eldest child, the wife worked on a full-time basis.  She left work approximately six weeks prior to the parties’ eldest son’s birth, taking maternity leave.  Thereafter, she returned to work on a part-time basis, which she continued until [Z]’s birth, when she ceased employment outside the home altogether and took on the role as homemaker and parent.  In or about 2017, the wife sought and obtained employment. Her employer, the (employer omitted), employs her in the capacity of (occupation omitted).  In this role, the wife is in receipt of a salary of approximately $741 per week. She also receives a family tax benefit of approximately $291 per week. She receives approximately $21 of dividend and interest payments.

5. The wife receives a payment of child support from the husband in respect of the three children which totals only $8 each week. The husband held a number of (occupation omitted) jobs over the course of the parties’ relationship. He worked for the (employer omitted) and in a variety of (employment omitted). His employment history was, however, not particularly stable. Currently the wife does not know for whom he works or under what circumstances.  She was not able to put any evidence before the Court as to whether, in fact, the husband worked.

6. The marriage was attended by some difficulties, which included the husband’s consumption of alcohol and drugs and, with his consumption of alcohol, issues of aggression and family violence.  The wife sought orders pursuant to the Family Violence Protection Act2008 (Vic) in the Magistrates’ Court of Victoria at Ringwood and obtained such orders. The husband has, on occasion, breached those orders. In December 2017, the husband was sentenced to a period of imprisonment for two months arising out of a breach of the intervention order. The husband was also sentenced, in April 2015, to a period of imprisonment for three months and in September 2015, to a period of imprisonment of six months.

7. Following the parties’ separation, they attended mediation.  They agreed to a parenting plan in relation to arrangements for their children.  Those arrangements included that the husband’s time with the children was to be supervised and that he was not to consume alcohol prior to or during any of his visits with the children. The father failed to comply with the agreement and on one occasion he picked the child [Z] up and absconded with her.  He returned eventually but that episode of absconding was upsetting for everyone.  The wife has supported an ongoing relationship between the husband and the children and such support has included the maternal grandfather supervising the husband’s time spent with the children.  That scenario has also gone badly and the maternal grandfather has refused to supervise any future time the husband might spend with the children.

8. As a consequence of the husband’s behaviours and his violence, the wife was required to install security cameras with video surveillance around the former matrimonial home where she and the children are residing. Camera footage showed the husband attending at the home and sabotaging the motor vehicle that the wife was driving to transport the children. Since that time, the wife has had to dispose of that motor vehicle and obtain another, which she is required to keep elsewhere because of the risk of sabotage from the husband.  This second motor vehicle was supplied to the wife by her father and is registered to her father, although the wife pays the expenses of maintaining the vehicle.

Asset pool

1. The principal asset of the parties’ is their interest in the former matrimonial home.  The home, which has a value of $700,000, has an encumbrance by way of mortgage with the Bank 1 in the sum of $45,000.  The net equity in the home is $655,000.

2. The wife has savings, which she has accumulated since separation in a total sum of approximately $8500. 

3. The wife has some shares, being 639 Shares A, with a value of approximately $2600 and 364 Shares B which are worth approximately $9400.  Both of these parcels of shares were owned by the wife at the time of the commencement of the relationship and they have remained in the wife’s name. There has been no activity in respect of them.

4. The wife has a remaining HECS debt which accumulated during the course of the parties’ relationship and which is currently in the sum of $7000. 

Superannuation

1. The wife has some very modest superannuation benefits, with the Super Fund T which total $29,265. The wife is of the belief that the husband has similar superannuation entitlements, although she can put no evidence pertaining to same before the Court and the husband has failed to put any evidence of relevance at all before the Court.

Adjustment

1. The wife seeks a transfer of the husband’s interest in the former matrimonial home to her.  She wishes to retain the home for the benefit of herself and the children.  It is unlikely that she will ever receive any significant sum, if any sum, by way of child support or financial assistance from the husband for the benefit of the parties’ children into the future, in particular given her lack of receipt of any significant sums in the four years since the parties separated.

2. The wife sought that, contemporaneously with the transfer by the husband of his interest in the former matrimonial home to her, she pay him a sum of $150,000.  Further, that she refinance the mortgage debt so as to secure the release of the husband from that obligation.

3. The orders sought by the wife are a just and equitable division of the property of the parties in the circumstances of this case.  The payment to the husband represents approximately 23 per cent of the asset pool, which is an appropriate apportionment, given the relatively modest nature of the pool; the wife’s income earning capacity; and the wife’s need to support the three children of the marriage for a number of years without any proper assistance from the husband.  

4. Due to the absence of any evidence before the Court from the husband, the Court was unable to further assess the s.75(2) matters of the Act, which may have favoured the husband, or which may have further supported the adjustment in favour of the wife. As to the issue of contribution, whilst neither of the parties made a contribution greater than the other at the commencement of their cohabitation, the wife’s contribution to the family since commencement of the relationship and her support and care of the children in the four years since separation, has overwhelmingly exceeded that of the husband.

5. The Court accordingly acceded to the application of the wife and made final property orders as sought by her. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 28 May 2018