Lacelle & Lacelle
[2021] FedCFamC2F 643
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lacelle & Lacelle [2021] FedCFamC2F 643
File number(s): ADC 3163 of 2021 Judgment of: JUDGE BROWN Date of judgment: 19 October 2021 Catchwords: FAMILY LAW – Undefended hearing – property settlement – long marriage – where the respondent has not partaken in proceedings – assessment of contributions – application for costs. Legislation: Federal Circuit and Family Court of Australia, (Division 2) (Family Law) Rules 2021 (Cth), Pt 10.6
Family Law Act 1975 (Cth), ss.75, 79, 117Division: Division 2 Family Law Number of paragraphs: 44 Date of hearing: 19 October 2021 Place: Adelaide Counsel for the Applicant: Ms Densley Solicitor for the Applicant: Westside Lawyers Counsel for the Respondent: No Appearance Solicitor for the Respondent: No Appearance ORDERS
ADC 3163 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LACELLE AND: MR LACELLE
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
19 OCTOBER 2021
UPON NOTING THAT:
A.The Respondent is also known as MR LACELLE.
THE COURT ORDERS THAT:
By way of settlement of property and in full and final satisfaction of any claim that either party may have against the other for alteration of property interests under Part VIII of the Family Law Act 1975 as amended:
1.Within thirty (30) days of the date of this Order, the Respondent shall pay to the Applicant, the sum of THIRTY TWO THOUSAND SEVEN HUNDRED AND TWENTY FOUR DOLLARS ($32,724).
2.Contemporaneously with the payment pursuant to paragraph 1 of this Order:
2.1The parties shall do all things and sign all documents necessary to transfer the Applicant’s interest in the property located at B Street, Town C in the State of South Australia being the whole of the land comprised and described in Certificate of Title Volume … Folio … (‘the B Street, Town C property’) to the Respondent with such Memorandum of Transfer to be prepared by a conveyancer at the Respondent’s sole cost.
2.2The Respondent discharge in full the mortgage with ANZ Bank secured over the B Street, Town C property (dealing no. …) and shall indemnify the Applicant and keep her forever indemnified in respect of the mortgage.
3.Subject to this Order, the B Street, Town C property shall then vest in the Respondent free of any further claim, demand or entitlement of the Applicant.
4.In default of the Respondent paying to the Applicant either all or part of the sum referred to in paragraph 1 of this Order or the Respondent discharging in full the mortgage referred to in paragraph 2.2 of this Order and should such default continue for a period of more than seven (7) days, the parties do all acts and sign all necessary documents to effect the sale of the B Street, Town C property and for that purpose the following shall apply:
4.1The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement, the real estate agent will be as nominated by the Real Estate Institute at the request of the parties or either of them.
4.2The list price of the property shall be such amount as is agreed between the parties and failing agreement, the list price will be as nominated by the real estate agent.
4.3The sale price of the property shall be such amount as is agreed between the parties.
4.4Upon agreement being reached for the sale of the B Street, Town C property, the parties shall execute the contract for sale and all other documents necessary to complete the sale of the property.
4.5On settlement of the sale of the B Street, Town C property, the proceeds of the sale be paid in the following manner and priority:
4.5.1firstly, to pay all the costs and expenses related to the sale including legal costs and disbursements, Real Estate Agent’s commission and advertising costs;
4.5.2secondly, to discharge the mortgage with ANZ Bank secured over the B Street, Town C property (dealing no. …);
4.5.3lastly, to distribute the balance (if any) equally between the parties.
5.Pending the sale of the B Street, Town C property:
(a)The Respondent have the sole right to occupy the property; and
(b)The Respondent be solely responsible for the home loan repayments, rates and outgoings of the property as they fall due up to and including the settlement date.
6.In default of the Respondent doing all acts and signing all necessary documents to effect the sale of the B Street, Town C property pursuant to paragraph 4 of this Order and should such default continue for a period of more than seven (7) days, the following shall apply:
(a)The Applicant shall have the sole right to effect the sale of the B Street, Town C property and to execute all necessary documents with respect to the sale; and
(b)Pursuant to Rule 11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and failing any objection being raised by the Respondent within 7 days of notice, the enforcement officer be authorised to enter the B Street, Town C property and effect vacant possession.
Superannuation
7.The Court allocate as required by Section 90XT(4) of the Family Law Act 1975, a base amount of TWENTY THREE THOUSAND FIVE HUNDRED AND EIGHTY TWO DOLLARS ($23,582) to the Applicant out of the interest of the Respondent in his Super Fund D (member no. …).
8.In accordance with Section 90XT(1)(a) of the Family Law Act 1975:
8.1the Applicant is entitled to be paid using the base amount allocated in Order 7, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
8.2the entitlement of the Respondent to payments out of his interest in his Super Fund D (member no. …) is correspondingly reduced by force of this Order.
9.The Trustee of Super Fund D (‘the Trustee’), shall do all acts and things and sign all such documents as may be necessary to:
9.1calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulation 2001, the entitlement awarded to the Applicant pursuant to Order 7, and
9.2pay the entitlement whenever the Trustee makes a splittable payment out of the Respondent’s interest in his Super Fund D.
10.Orders 7 – 9.2 have effect from the operative time and the operative time is four (4) business days from the service of these sealed Orders upon the Trustee by either of the parties.
11.Payments from the Respondent’s superannuation interest made after the Trustee has rolled over or transferred the transferrable benefits to the Applicant are not splittable payments.
12.The parties shall pay equally any fees charged by the Trustee of the Scheme in administering the split.
13.Subject to Order 7, each party shall be solely legally and beneficially entitled to all superannuation entitlements held in their respective names.
Other property
14.Except as otherwise provided herein the Applicant retain the following assets for her sole benefit and use, free of any further claim, demand or entitlement from the Respondent:
14.1Any motor vehicle in the Applicant’s name and/or possession;
14.2The Applicant’s separate savings and accounts;
14.3All of the household furniture and effects in the Applicant’s possession;
14.4The Applicant’s superannuation entitlements; and
14.5Any other real and/or personal property of the Applicant in the Applicant’s name and/or possession not otherwise specified herein.
15.Except as otherwise provided herein the Respondent retain the following assets for his sole benefit and use, free of any further claim, demand or entitlement from the Applicant:
15.1Any motor vehicle in the Respondent’s name and/or possession;
15.2The Respondent’s separate savings and accounts;
15.3All of the household furniture and effects in the Respondent’s possession;
15.4The Respondent’s superannuation entitlements; and
15.5Any other real and/or personal property of the Respondent in the Respondent’s name and/or possession not otherwise specified herein.
16.Subject to the provisions of these Orders, each party do release the other from any liability or from any claim that either one may have against the other in respect of any property either now or hereafter owned by either of them.
17.Each party shall do all acts and things and sign all such necessary documents to give full force and effect to the terms of these Orders.
18.In default of the parties or either of them doing all acts and signing all such documents as are necessary to give effect to these orders within seven (7) days of being required to do so, a Registrar of the Federal Circuit Court of Australia at Adelaide be appointed pursuant to Section 106A of the Family Law Act 1975 to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.
19.That the respondent shall pay the applicant’s costs fixed in the sum of THREE THOUSAND DOLLARS ($3,000.00).
20.Each party shall have liberty to apply for consequential orders.
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 by this Court under a pseudonym Lacelle & Lacelle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. These reasons have been corrected of errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
These orally delivered reasons for judgment relate to the settlement of matrimonial property proceedings on an undefended basis. It arises in circumstances in which the pool of property available to be divided is modest but the prospective or future needs of the parties concerned are likely to be fairly significant.
The major difficulty that confronts me today in the case is that there is limited evidence from one of the parties, and as a consequence, it is difficult to gauge what his future needs will be and what is a fair outcome. However, the applicant in the proceedings has carefully prepared her case and I have a great deal of evidence from her.
In those circumstances, and in my view, it would be greatly unfair to the applicant, who has a pressing need to finalise the proceedings, if the case is unduly prolonged or postponed, in the hope that the other party will engage with the process in the future.
BACKGROUND
The parties to the proceedings are the applicant wife, Ms Lacelle (“the wife” or “Ms Lacelle”) and the respondent husband, Mr Lacelle (“the husband” or “Mr Lacelle”). They are the parents of three adult children whose names are Ms E, born in 1994, Ms F, born in 1996, and Ms G, who was born in 2001.
By way of background, the applicant wife was born in 1968. The respondent husband was born in 1966. The parties commenced living together in 1995 and married in 1998.
They separated in February of 2018, so the relationship between the parties was one of quite significant length, being well over 20 years, and it produced three children. The parties are not yet divorced.
The wife commenced these proceedings on 30 June 2021. From her perspective, it is important that the parties finalise their financial relationship with one another so they can each move on with the remainder of their lives.
Her application was served on the husband, at the parties’ former family home in B Street, Town C, on 8 July 2021 at 8:00 am, and Mr Lacelle has signed an acknowledgement of service.
There can be no doubt that Mr Lacelle knows about these proceedings but, for reasons about which I can only conjecture, he has chosen not to take part in the proceedings. As the case has progressed through the system, he has been advised of each step on the way by mail.
The letters have not been returned and, indeed, he has contacted the wife’s solicitor and provided some information about his superannuation.
As the applicant will perhaps appreciate, it is a significant thing to deal with somebody else’s property in their absence, and one of my fundamental obligations is to ensure that everyone has an opportunity to be heard and say their piece, and as a matter of law, before a person can be adversely affected by a judicial order, they must be given an opportunity to be heard.
I am more than satisfied that Mr Lacelle has been given an opportunity to appear in these proceedings and put a position before the court, but he has chosen not to do so. In those circumstances, Ms Lacelle is entitled to have her application for settlement of property matters determined within a reasonable period of time. As I have already indicated, it is my view that she has prepared her case thoroughly, and I have all the necessary evidence and information I need to complete the case.
THE LEGAL PRINCIPLES APPLICABLE
Pursuant to the provisions of part 10.6 of the Federal Circuit and Family Court of Australia, (Division 2) (Family Law) Rules 2021 (Cth), I have authority to deal with proceedings in the absence of a party if that party has failed to defend a case with due diligence, or produce a document as required.
At an earlier stage in the proceedings, Mr Lacelle was ordered to file a response. He has not done so. In fact, he has taken no part in the proceedings at all, as far as I can see, and clearly he is not pursuing the case with any diligence.
Notwithstanding his non-appearance, the wife is not entitled to the orders she seeks as a matter of course. I still have to apply the relevant principles contained in the Family Law Act 1975 (Cth) (“the Act”), which are applicable to the division of matrimonial property.
The relevant principles are primarily contained in sections 75(2) and 79 of the Act. Those principles are not unduly complicated and, essentially, I am required to follow a number of steps.
In the first step, I must ascertain what are the parties’ assets and liabilities as at the date of trial. In the second step, I must assess the contributions which the parties have made towards the accumulation of that pool of assets.
In broad terms, contributions fall into two main categories. The first is contributions to the property in a financial and non-financial sense, which lead to the acquisition, conservation or improvement of property.
The second kind is contributions to the welfare of the family as a parent and a homemaker. The law is clear that contributions made as a homemaker and a parent are not to be regarded as anything of lesser value than the contributions made in direct financial terms.
The third step involves the assessment of the parties’ prospective needs by reference to the factors set out in section 75(2). For reasons that I will elaborate upon in due course, it is likely that both parties have fairly significant future needs.
Finally, in determining the appropriate outcome, I have to bear in mind, pursuant to section 79(2), that whatever order I make, it is just and equitable. That is a legal way of saying it has to be fair. That is what is important. At the end of the case, stepping back, the outcome is a just and equitable one.
In Ms Lacelle’s Affidavit and supporting case summary, the wife has set out the significant matters which bring the parties to this point. Clearly, the parties met one another when they were quite young and neither had any significant assets when they began their relationship together.
I am satisfied that each of the parties worked hard in the marriage in a variety of capacities, both in the workforce, and significantly, in the home as a parent and a homemaker. The husband worked in a variety of roles during the parties’ marriage; so did the wife, but she also took time to care for the parties’ three children.
It is her case that she made the greater contributions as a homemaker and towards parenting. Ms Lacelle did the cooking and the cleaning; changed nappies and so on. Mr F had some significant health issues. He had a cardiac condition, namely hypertrophic cardiomyopathy, and that must have been difficult.
There was much driving to be done. The wife has had an interest, I think, in sports and she has been a sports instructor, which no doubt fitted in with her responsibility to look after the parties’ children from time to time. Mr Lacelle has also worked full time with periods of time off.
The parties’ most significant purchase of an asset was the former matrimonial home, which was purchased in or about February 2012 in the parties’ joint names for the sum of about $180,000.00. It was subject to a mortgage in favour of the ANZ Bank and the parties borrowed all the money to purchase it.
At the present time, as I understand it, the husband is living in that property, and Ms Lacelle in her financial statement deposes that she is living in rented accommodation and paying rent of $325.00 per week, which is a significant sum of money.
It is, of course, unfair that one party has the sole benefit of the major capital asset of the parties’ relationship and the other has to make other arrangements. That, of itself necessitates that these proceedings need to be dealt with, and finalised.
It is Ms Lacelle’s position that the parties’ overall contributions during their lengthy marriage in various capacities should be assessed as equal, and I agree with that assessment. That would seem to clearly be the case.
Ms Lacelle has deposed that she suffered an injury at work, which related to an injury to her rotor cuff when she was opening and closing a gate, and she has been assessed with an ongoing physical impairment of about 13%.
She received some modest compensation, which was utilised during the parties’ relationship to fund their expenses, but I am satisfied she is left with a significant disability. I am not in a position to assess that, but I would imagine, if a person is a coach and has an injury to one’s shoulder, that is not very helpful. So that is an issue of itself.
Ms Lacelle concedes that, although her financial future is uncertain, the same considerations are likely to apply to the husband. Ms Lacelle is not seeking any allowance pursuant to any of the factors pursuant to section 75(2) and that is, I think, both an accurate and clearly a fair submission.
As I indicated earlier, there is superannuation involved. The parties have both accrued superannuation and have different amounts. It seems to me overwhelmingly fair that the superannuation be equalised.
The sums in question are modest, and the parties are each in their 50’s, and I would hope they have some years in front of them working. At the present time the wife is employed – she is working as a carer for a non-government agency at Location H. Ms Lacelle is earning a modest salary of about $80,000.00, which I am sure is quickly utilised in her own personal support.
I hope Ms Lacelle is able to work for many years to come, but the reality is she has not got a lot of time in the workforce to prepare for her retirement, and the sad reality is that it is harder to be a single person than a couple when one is leaving the workforce. The future is not without its challenges.
It is Ms Lacelle’s position that the best way forward would be for Mr Lacelle to contact the bank to raise some money to pay out her interest. However, the wife is, I am afraid, somewhat pessimistic that Mr Lacelle will not do that and it may be necessary for the property to be sold so each party can receive what they are entitled to. Given what the property is likely to be worth, and what is owing, is not a large sum of money.
She estimates, on the basis of some appraisals she has got, that the property is worth about $230,000.00 and is subject to the mortgage in favour of the ANZ Bank of $163,781.00. Otherwise, there are some modest household contents and some motor vehicles.
Interestingly, each party received a bequest from the husband’s father in equal terms. That indicates to me that the late Mr Lacelle held his daughter-in-law in good regard, which is not always the case. I consider that indicates, the nature of the parties’ marriage. It was one that was relatively equal. They combined their property. It was one based on for better or worse, which makes me confident that what is proposed by the wife is a just and equitable outcome.
The remaining issue is one of costs. The general rule in family law proceedings is that each party bears his or her own costs. That is the principle that is contained in section 117 of the Act. However, pursuant to section 117(2), I have the authority, if I think it is appropriate, or otherwise proper and just, to make an order for costs. These proceedings really should have been quickly finalised in a sensible way.
They should not have gone to final hearing because, to be perfectly frank, the outcome is clear, it’s a 50%/50% case. This hearing has occurred because of Mr Lacelle’s failure to take part in the proceedings, and I am entitled to take into account his conduct in the legal proceedings. On that basis, I will direct that the husband pay the wife’s costs fixed in the sum of $3000.00, which will be paid by the husband out of the proceeds of sale of the home, unless it is paid earlier.
For those reasons, I will make the orders as sought in the wife’s Amended Initiating Application, which results in an equalisation of superannuation, and the payment of a sum of money to the wife by the husband.
However, if there is a default, which continues for a period of seven days, the property will have to be sold, and I will make the necessary orders that are sought pursuant to section 106A of the Act, that the Registrar of this court can sign the relevant documents on behalf of the husband to authorise the sale, and do anything else that is necessary.
I hope it does not come to that, but ultimately, if the husband will not cooperate, the wife should not be denied her just and equitable share of the parties’ matrimonial assets. So I will make orders in terms of the Amended Initiating Application as orally amended this day.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 22 December 2021
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