L and L
[2000] FMCAfam 79
•5 December 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & L | [2000] FMCA fam 79 |
| PROPERTY SETTLEMENT – Non attendance by party |
| Applicant: | C L L |
| Respondent: | S L L |
| File No: | ZB2211 of 2000 |
| Delivered on: | 5 December 2000 |
| Delivered at: | Brisbane |
| Hearing Date: | 4 December 2000 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Blaxland |
| Solicitors for the Applicant: | Swanston & Associates |
| No appearance by the Respondent: |
ORDERS
That by 31 January 2001 the HUSBAND shall:
(a)Transfer to the WIFE all his right, title and interest in and to the former matrimonial home situated at, and known as 70 G Street, I, in the State of New South Wales; and
(b)Vacate and, or alternatively, hand over vacant possession of the aforesaid matrimonial home to the WIFE.
That by 31 January 2001 the WIFE shall transfer to the HUSBAND all her right, title and interest in and to the block of land owned jointly by the parties situated at T C Estate, C in the State of New South Wales.
That each party shall be solely entitled to have and retain as their own and to the exclusion of the other all property presently in the possession of such party.
That each party shall take the property hereby awarded to each such party subject to any encumbrances, expenses or liabilities attaching to such property and further subject to each such party protecting, indemnifying and saving harmless the other such party from and against any liability in respect of such encumbrances, expenses or liabilities attaching to the property that they take pursuant to this order.
That each party shall do all such acts and sign and execute all such documents as are necessary and as are required to give effect to the terms of this order and that upon a failure by either parties to do any such act or sign, execute any such document, the Registrar of the Family Court of Australia or the Registrar of the Federal Magistrates Court pursuant to Section 84 of the Family Law Act are hereby empowered and directed to do all such acts and sign and execute all such documents in the place of and for and on behalf of the faulting party.
That the operation of paragraphs (1), (2), (3) and (4) of this order shall not take effect if:
(a)The HUSBAND files and serves by 15 January 2001 an application in this Court, seeking an order that he be heard on the form or effect of the order;
(b)The HUSBAND will be required to appear personally (with or without legal representation) on the hearing of his application;
(c)It is directed that any application filed by the HUSBAND under subparagraph (a) shall be listed with priority.
That the WIFE shall serve a copy of this order and this Court’s reasons for judgment upon the HUSBAND personally as soon as practical after the making of these orders.
That there be no orders as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
ZB 2211 of 2000
| C L L |
Applicant
And
| S L L |
Respondent
REASONS FOR JUDGMENT
Introduction
The history of these proceedings are fully set out to the date of these reasons, in my reasons delivered in this matter on 3 November 2000. No useful purpose is served by restating them again. Since those orders were made and in accordance with directions made by me:
a)I am satisfied the wife has served the husband with the documents ordered to be served;
b)The husband failed to appear before me yesterday. I should note that the husband did telephone my associate and advised her of his intention to attend. Up to the time of the delivery of the reasons no appearance has been made by the husband;
c)The wife has produced two valuations, again as directed by me:
i)An appraisal of the property at 70 G Street, I, by Brian Baldwin Real Estate (dated 21 November 2000) confirming the property has a current reasonable selling price in the vicinity of $48,000.00 - $50,000.00; and
ii)A valuation of the property at Lot 3, T C Estate, C by Robert L. Lea, Registered Valuer (dated 28 November 2000) in which the valuer concludes the current fair market value for the vacant rule residential bush block is $12,000.
The wife, through her counsel, Mr Blaxland, submits that I should make an order that effectively:
a)The husband should vacate the former matrimonial home and that the husband should transfer his interest in the home to the wife and;
b)The wife should transfer her interest in the land to the husband and;
c)Each party should retain the other property in their possession and;
d)That rather than a self-executing order the order shall take effect immediately and the husband would then have to bring an application under Section 79A or an appeal to avoid the order being effective.
Relevant law
In my reasons of 3 November I detailed the current state of the law in respect of persons who fails, in effect, to protect their interests to have properly commenced and prosecuted proceedings. I again see no point in re-stating those observations. The husband has again failed to take any action to deal with his interests in this matter. The wife is not legally assisted and the financial hardship she continues to suffer as a result of the husband's actions, or inaction, is a relevant consideration. The approach to the determination of an application pursuant to Section
79 of the Family Law Act is well established by authority.(See LEE STEER (1985) FLC 91-626; FERRARO (1993) FLC 92-335; DAUUT and RAIF (1994) FLC 92-503; PRPIC (1995) FLC 92-574; CLAUSON (1995) FLC 92-595; WHITELY (1996) FLC 684 and DOIG (1999) FLC 92-869). Section 79(2) provides that the Court shall not make an order under the Section unless it is satisfied that in all the circumstances it is just equitable to make the order. The Court is required, in considering what order, if any, it should make, to take into account the respective contributions of the parties referred to in paragraphs (a), (b) and (c) of Section 79(4) and the effect of any proposed order upon the earning capacity of the parties. They also require to take into account the matters referred to in Section 75(2) so far as they are relevant and any other order made under the Act affecting a party or a child and any child support under the Child Support Assessment Act.
The evidence
When this matter came before me on 31 August 2000 the mother gave evidence. I accept her evidence which I found was given fairly and frankly. She appeared to sincerely regret the difficulties in the marriage stemming from the husband's psychiatric condition. She has the sole emotional and financial care and responsibility for the 3 children of the marriage, E, C and B. The father has paid only minimal child support. It is clear from the oral evidence and the financial statement filed 7 August 2000 of the wife that the assets of the parties are:
a)
The house at I:............................................................... $48,000.00
(net of commission and sale expenses)
b)Vacant land at C:.......................................................... $12,000.00
c)Tools and trailer in husband’s possession:......... Value unknown
d)Nissan Bluebird in husband’s possession:......... Value unknown
Furniture of little value has been distributed. There are no substantial debts or any superannuation or other financial resources. For the purposes of this matter I find the pool of assets has a value of $60,000.
In determining contributions over the 14 year marriage of these parties (married 26 March 1983 and separated December 1997) I find that:
a)The husband and wife, at the time of marriage, had few assets but were both working - the husband as a sheet metal worker and the wife as a nursing assistant;
b)After living in Sydney for a few years the parties decided to move to a rural environment in I. It seems the move was prompted by a desire for a change in lifestyle. They bought a home in I for approximately $34,000.00 to $35,000.00 using a compensation payout of $13,000 received by the wife for a back injury, as a deposit on the home;
c)They also purchased the vacant allotment of rural land comprising nearly 50 hectares for approximately $23,000;
d)They used their personal exertion income to pay off the loans to the ANZ Bank for both these properties;
e)The husband was constantly in employment whilst the wife, during this period in I, worked part-time between the births and confinements of the children, although she ceased to work permanently after B's birth in 1994;
f)In about 1993 the husband’s psychiatric condition was such that he ceased worked. It seems that since the birth of B the family has essentially survived financially on government benefit;
g)The mother, I find, has been the principal care-giver to the children and also the principal homemaker. With the husband's illness this increased her obligations. She does appear, however, to have met these added responsibilities quite courageously and assisting where she could the husband through the early years of his illness. There was a major adjustment required to the lifestyle of the family.
Considering the s79(4) contributions made by the parties, I believe they slightly favour the wife and will distribute property in the proportions of 55 per cent to the wife and 45 per cent to the husband.
The Section 75(2) factors that are relevant in this matter, in my view are:
a)In this regard I am satisfied that the wife will be able to secure some gainful employment, although the opportunities for employment will be affected by her obligations to the children. The husband, who is 2 years younger than the wife, may find it difficult to ever again maintain gainful employment because of his psychiatric illness. This factor weighs in the husband's favour.
b)The financial resources of the parties will be minimal;
c)The responsibilities of the mother to care for the children, and in view of the circumstances, with little contact to the father means this factor weighs heavily in the wife's favour;
d)I find it is likely that the husband will have little capacity to help support his children into the future;
e)I find this factor not particularly relevant in this case;
f)I disregard this factor due to the operation of Section 75(3) of the Family Law Act;
g)The current standard of living of the wife and children is similar to that previously enjoyed by them in I;
h)I find this factor not particularly relevant in this case;
(j,k,l)The matters under these sub-paragraphs have already been dealt with;
(m)I find this factor not particularly relevant in this case;
(n)I find this is not particularly applicable in view of the value of the property pool;
(na)The matter under this sub-paragraph has already been dealt with;
(o)There are no other particular factors not otherwise dealt with in these reasons which would be relevant under this sub-paragraph.
In my view, the appropriate adjustment for Section 75(2) factors is in favour the wife at a 20 % of the pool assets. I, therefore, find it just and equitable that the net property pool of the parties be divided 75 per cent to the wife and 25 per cent to the husband. Although I've received no evidence from the wife as to the value of the husband's car, tools of trade and trailer, I estimate that their value would enable me to distribute the property in the manner proposed by the wife and keep within the broad distribution parameters I have determined in this matter. I accept the order I propose will require to vacate the home. It is unlikely the wife will have enough funds to purchase a home (after payment of her legal expenses) and she will probably be required to rent. The husband will be in a similar position. The sale of the I house is inevitable in this matter.
The wife's counsel, Mr Blaxland, says I should make the order effective immediately because the husband has had an ample opportunity to appear and make submissions. He says the wife, who is not legally assisted, is bearing the costs of continually returning to the Court. He says that if the husband is not happy with the order he may appeal. Whilst there is some merit in these submissions, the fact remains that although it was reasonable to assume that the husband knew of the potential for an order to be made against him, the actual order (which he would most likely regard as adverse to his interests), was not determined until today. On balance I believe he should have one final opportunity to address me on the order I have made. The order, in the absence of him personally appearing before me, will take effect from 2001.
The wife has sought an order for costs. Having considered the factors in Section 117(2) of the Family Law Act I believe this is a case where the minimal assets retained by the husband would be virtually extinguished by a costs order. I do not propose to make any order for costs at this time. If, of course, the wife incurs expenses in further arguing on enforcing these orders against the husband, then, it may be appropriate to consider the husband's liability for costs from today occasioned by that enforcement or further argument.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
0
0
0