LINTON & LINTON
[2015] FCCA 806
•10 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LINTON & LINTON | [2015] FCCA 806 |
| Catchwords: FAMILY LAW – Undefended property hearing – husband filed no documents and provided no disclosure –family violence – husband’s conduct during hearing. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 75(2)(o), 79(1), 79(2), 79(4), 75(2), 4(1), 117(i), 117 (2A) Federal Circuit Court Rules 2001 r. 13.03A(2), 13.03B(2) |
| Aon Risk Services Australia Limited v Australian National University Kennon and Kennon (1997) FLC 92 – 757 |
| Applicant: | MS LINTON |
| Respondent: | MR LINTON |
| File Number: | MLC 2694 of 2014 |
| Judgment of: | Judge Harland |
| Hearing dates: | 4 & 5 March 2015 |
| Date of Last Submission: | 5 March 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 10 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Swann |
| Solicitors for the Applicant: | Rigoli Lawyers |
| The Respondent appearing in person with the assistance of an interpreter |
ORDERS
That all previous orders be discharged.
With 7 days of the date of these orders the parties shall do all acts and things to place the property on the market for sale, with a real estate agent nominated by the wife at a price as recommended by the agent taking in account the valuation of $725,000.
The wife shall instruct her solicitors to act on the sale of this property.
The wife accept any offer made to purchase the property in the sum of $725,000 or above.
That the wife shall disburse the proceeds from the sale of the property as follows:
(a)firstly, to pay all costs, commissions and expenses of said sale;
(b)secondly, to discharge the mortgage and any other encumbrance affecting the property;
(c)thirdly, to pay the debt owed to Victoria Legal Aid;
(d)fourthly, to pay the debt the wife owes to Centrelink;
(e)fifthly, in payment of the encumbrance over the Toyota (omitted);
(f)sixthly, 70% of the balance then remaining to the wife; and
(g)the balance to the husband, subject to Order 6 herein.
That the following amounts be deducted from the husband’s entitlement to the sale proceeds of the property pursuant to Order 5(g) and added to the wife’s entitlement thereto pursuant to Order 5(f):
(a)an amount equal to 70% of any mortgage arrears accrued up until the date upon which the husband vacates the property.
That the husband vacate the property within 7 days and take with him items of property limited to his personal possessions (subject to
Order 11).
That pending the completion of the sale of the property:
(a)the wife have the sole right to occupy the property;
(b)during such right of occupation the wife pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the property as they fall due;
(c)the parties hold their respective interests in the property upon trust pursuant to these Orders; and
(d)neither party encumber the property without the consent in writing of the other party.
That in the event that the husband fails to vacate the property within
7 days from the date of this Order, a Warrant for Possession be issued pursuant to Rule 25B.62 of the Federal Circuit Court Rules 2001 and an affidavit by the wife filed in the Melbourne Registry of this Honourable Court shall be sufficient evidence of the husband’s failure to vacate the property.
That within 14 days of taking possession of the property, the wife make available for collection by the husband or his agent in the presence of a police officer on a day and at a time to be notified to the husband in writing by the wife’s solicitors a share of the furniture and effects in the property, being approximately a one half share.
That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in Australia in the possession of such party as at this date and the furniture and contents in the property are deemed to be in the possession of the wife;
(b)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(c)all insurance policies to become the sole property of the owner named thereon;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That the husband pays the wife’s costs reserved on 13 May 2014 fixed in the sum of $1,100 and the costs of the trial fixed in the sum of $5,000 plus $500 in costs ordered against the husband on 6 June 2014 and the Court notes that such sums will be deducted from the husband’s share of the sale proceeds.
That the furniture, furnishings and effects presently situated in the property shall be divided by agreement between the parties and each party shall do all things necessary to facilitate that division within 21 days of the date of these orders.
That in the event the parties have not complied with the above order within 28 days from the date of these orders, then
(a)Within a further 7 days the wife shall prepare and deliver to the husband 2 lists comprising furniture, furnishings and effects situated in the property, each list to comprise in total approximately 50% of the value of those furniture, furnishings and effects.
(b)That husband shall then, within a further 7 days of delivery of the two lists select one of those lists and inform the other party of that decision.
(c)Within a further 7 days each party shall then do all things necessary to facilitate the physical distribution and division of the furniture, furnishings and effects to be distributed between the parties in accordance with the selection of the list referred to above;
AND each party shall thereafter be solely entitled to the items of furniture, furnishings and effects so received by them in accordance with the above order.
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
That pursuant to Rule 21.16 of the Federal Circuit Court Rules2001 this matter reasonably required the appearance by Counsel.
IT IS NOTED that publication of this judgment under the pseudonym Linton & Linton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2694 of 2014
| MS LINTON |
Applicant
And
| MR LINTON |
Respondent
REASONS FOR JUDGMENT
This is an undefended property hearing. The respondent husband has not filed any material or provided any financial disclosure. He attended the hearing and was permitted to cross-examine the wife but was disruptive and argumentative. His conduct prolonged the hearing. Ultimately he left the courtroom before the hearing completed. I will comment further on the husband’s conduct later in this judgment.
Procedural history
The wife filed an initiating application seeking final property orders on 31 March 2014. She filed an affidavit of service on 24 April 2014. The deponent of that affidavit states that he served the documents personally on the husband, who identified himself but refused to take the documents on 12 April 2014. The process server left the documents in the husband’s presence.
On the first return date before Judge Curtain on 13 May 2014, the wife was represented by counsel and there was no appearance by or on behalf of the husband. The wife sought urgent interim orders in respect to the sale of the former matrimonial home. Judge Curtain made orders for the sale of the home and directed the parties to attend a conciliation conference.
The wife caused the husband to be personally served with the orders made on 13 May 2014. Again the deponent of the affidavit of service filed on 29 May 2014 states that the husband refused to take the orders and the documents were left in his presence on 22 May 2014.
The parties attended a conciliation conference on 6 June 2014. The husband did not file any documents and the registrar noted that the husband refused to take the sealed orders with him. The registrar made orders that the husband pay the wife’s costs fixed that day in the sum of $500 by 25 June 2014. The husband has not complied with that order.
On 26 June 2014 Judge Curtain made directions for trial. The wife was represented by counsel and the husband appeared in person. On that occasion the matter was listed for a two day hearing on 4 and 5 March 2015. Judge Curtain made a notation that if the husband failed to appear on the next occasion the wife have leave to apply to proceed on an undefended basis.
Judge Curtain was unable to hear the matter on 4 March 2015 and the matter was transferred to me. Counsel for the wife informed me that Judge Curtain gave leave for the matter to proceed undefended. This was perfectly appropriate given the husband’s continuing failure to comply with orders made by this court.
Before determining proceedings on an undefended basis the Court must ensure that the parties have been given the opportunity to participate in the proceedings.
An applicant is entitled to have his or her application determined within a reasonable period.
The Court cannot compel a party to participate in the proceedings but must give that party the opportunity to participate in the proceedings.
Rule 13.03A(2) of the Federal Circuit Court Rules 2001 sets out the circumstances where the respondent is in default. This includes failing to file and serve documents in compliance with court orders and failing to defend the proceedings with due diligence.
Rule 13.03B(2) of the Rules sets out the orders the Court may make if the respondent is in default which includes giving judgment in making orders against the respondent.
I am satisfied that the husband has had proper notice of the proceedings, the fact that it was listed for final hearing today and the fact that the hearing may proceed without his involvement.
Both parties required the assistance of interpreters. It was clear that both parties can speak some English. The parties had separate (country omitted) interpreters at the hearing.
Husband’s adjournment application
The only document the husband has filed in these proceedings was a notice of address for service filed in court on 26 June 2014.
The husband made an oral application at the beginning of the hearing for an adjournment. He complained that he did not have enough time to prepare for the hearing because he had up to 10 court cases in other courts. There are court proceedings in the local magistrates’ court with respect to the husband’s alleged breaches of the intervention order. That matter has been in court recently. The husband filed no material in support of his adjournment application and it is significant to note that he has been on notice of these proceedings since he was first served on 12 April 2014 and on notice specifically of the final hearing date since 26 June 2014 when he was in court.
It is also significant to note that despite orders being made on 13 May 2014 for the sale of the home, that sale has not happened. The wife claims that this is because of obstruction by the husband. The husband denies this. The husband lives in the former matrimonial home. I will return to this issue later in this judgment but it is a relevant consideration in determining whether or not to grant the adjournment. The wife would be prejudiced by the adjournment. She has complied with court orders and is entitled to have her application heard in a timely manner.
When considering whether or not to grant an adjournment, the court must consider not only the individual litigants in the case before but the needs of litigants before the court generally and the needs of case management. This is a high-volume court with many matters competing for the court’s attention. The Court needs to be mindful of case management principles in order to administer justice
fairly for all litigants. The comments of the High Court in
Aon Risk Services Australia Limited v Australian National University
[2009] HCA 27 5 August 2009 C1/2009 are relevant here.The husband must be accorded procedural fairness and be given the opportunity to be heard. This does not entitle him to be heard at a time of his choosing: see Sheill and McMurr (No. 2) [2014] FamCAFC 134 Full Court 39 at 75. He has had ample opportunity to file a response and affidavit and to present his case. There is nothing to suggest that the husband would have prepared the matter if an adjournment had been granted. The wife would have incurred further costs and delay.
The husband was given the opportunity to test the wife’s evidence at the undefended hearing by cross-examining her.
The parties’ relationship
The parties married on (omitted) 1981 in (country omitted). They built a home there. There is a dispute as to the ownership and failure of that home.
There are 4 children of the marriage, they are all adults. The youngest child is 21 and is studying and the mother says she gives her some financial support from time to time. All 4 children are estranged from their father.
The parties immigrated to Australia with the children in (omitted) 1995.
The parties separated in August 2013.
The parties’ legal and equitable interests
As the husband has not filed any material and has not provided any financial disclosure, the asset pool is not complete. If the court can determine the asset pool, the asset pool will be as follows:
Property M $725,000
Toyota (omitted)
Toyota (omitted)
House in (country omitted)
Liabilities
Mortgage Property M $190,000
debt to Victoria legal aid $5,000
debt to Centrelink
debt on Toyota (omitted)
Superannuation
Wife $10,000
Husband not known
The husband cross-examined the wife about the difference in values she attributed to the asset pool in her two affidavits. For example in her first affidavit she said the Property M property was worth $900,000. In her second affidavit she said the Property M property was worth $725,000. The difference here is clear. The wife had the benefit of a valuation by the time of her second affidavit. The valuation is attached to her second affidavit and it gives the Property M property the value of $725,000. This explains the difference in the figure.
She also gave differing estimates for the values of the parties’ cars. She acknowledged that she did not have the cars valued. She said she could not get access to the husband’s car to do so. She says her Toyota (omitted) was worth $10,000 when she swore her first affidavit and $5,000 at the time of swearing her second affidavit. She says the husband’s Toyota (omitted) is worth $65,000. She acknowledges it was purchased for $51,000 but says improvements were made to it. There is a car loan attached to it. It is well known that cars depreciate as soon as they are driven away from the car dealer’s yard. I am not satisfied that the estimated values for the cars are reliable. It would have been a simple thing to obtain red book car valuation online which would have been a better estimate. I will take the cars into account when determining the property settlement but attributing a value to each of them would be artificial and unhelpful.
The wife also says that the chattels in the former matrimonial home are worth $50,000. She does not say how she arrived at this figure however it is immaterial in light of her application at the hearing to have the furniture divided equally.
The wife says she has a small amount in her superannuation. She does not know what superannuation the husband has.
Victoria Legal Aid has a caveat secured over the former matrimonial home with respect to a debt which now stands at approximately $5,000. Exhibit F is a letter addressed to the wife from Legal Aid dated 27 May 2013 with respect to that. The wife gave evidence that the debt relates to proceedings that she and the husband were involved in seeking orders to spend time with their grandchildren. She says that the husband was part of those proceedings until he was excluded from the case because of his conduct. Part of exhibit F is a further and earlier letter from Legal Aid dated 27 February 2012 to the wife with respect to the same debt. The wife has been making instalment payments to reduce this debt. The debt predates the parties separation and I am satisfied it should be included as a joint matrimonial debt.
Exhibit H is a letter from Centrelink to the wife dated 31 October 2014 with respect to a debt she owes to Centrelink which at that time was $2,264.60. The debt relates to the period during the marriage when the wife was working on a farm.
House in (country omitted)
In both affidavits the wife gives the (country omitted) house an estimated value of $100,000. During the course of cross-examination, the wife said she believes the house is worth 400,000 euros. She said she had engaged a lawyer in (country omitted) who made enquiries about the value of the house but her lawyer had a heart attack and she was unable to obtain any documents.
The wife does not have access to the property. She gave evidence that the house is in the husband’s name and the land is in the husband’s brother’s name. The father’s mother and brother live in the house.
The state of the evidence is such that I cannot include the (country omitted) property in the asset pool. I do not have evidence as to ownership and I have no evidence about how property law works in (country omitted). It is therefore not possible for me to identify the existing legal interest in the property.
Without this information I am unable to make a finding as to the legal entitlement of the property. However, it is something I can take into account as a financial resource of the husband. The husband’s mother lives in the property. It seems that the husband as least has some sort of equitable interest in that property.
Sale of the former matrimonial home
The Court made orders for the sale of the former matrimonial home on 13 May 2014. The wife says the husband has obstructed the sale. She thinks he is happy to delay the sale because he is living in the home.
Exhibit A is a vendor’s agreement with (omitted) Real Estate showing the vendor’s asking price of $1,100,000. It shows the agent’s estimate as being between $820,000 and $900,000. It is signed by both parties and dated 28 August 2013. Exhibit B is a vendor’s agreement with (omitted) Real Estate showing the vendor’s asking price as $1,100,000 and the agent’s estimate as being between $800,000 and $850,000. Both parties signed the agreement dated 2 July 2014. Exhibit C is a vendor’s agreement with (omitted) Real Estate. The vendor’s price is marked as ‘to be advised’. The agent’s estimate is between $750,000 and $820,000. The wife signed the agreement on 11 February 2015. Exhibit D are two market appraisals for the home showing estimated values of between $720,000 to $780,000 and $700,000 to $750,000 respectively dated 19 May 2014 and 20 May 2014.
The wife obtained a valuation from registered valuers (omitted). They valued the property at $725,000 on 24 July 2014. It is annexed to the wife’s second affidavit and is marked annexure L1. The wife also annexes at L2 and L3 two letters from her lawyers to the husband dated 6 October 2014 and 28 October 2014 advising him of an offer made for the property of $733,000, which is $8,000 above the valuation. The wife relies on the market appraisals, not as evidence of value but to show the unreasonableness of the husband’s stance.
The wife gave evidence that the husband obstructed the sale of the property by requiring an unreasonable selling price and not allowing agents to bring prospective buyers to inspect the property unless they were willing to pay that price. Even on the face of the vendors agreements at Exhibits A and B, the asking price was significantly above the agents’ estimates. Whilst it is clear from the wife’s first affidavit that both parties initially thought the property was worth more than its valued amount once the parties obtained real estate agents estimates the market appraisals and the valuation, it would have been clear to them that an asking price of $1,100,000 would not result in the sale of the property.
I am satisfied on the balance of probabilities that the husband has obstructed the sale of the property. It is to his advantage to have the sale delayed given that he is living in the former matrimonial home.
The wife says she is not sure what the current amount of the mortgage is and is unsure if the husband has been paying it. The bank statements are annexed to her affidavit.
In order to ensure the property is sold in a timely manner and to minimise cost to the wife, I am going to order that the husband transfer the property to the wife and that the wife then manage the sale.
The effect of the orders is the same which is to sell the home and divide the proceeds between the parties in accordance with their property entitlements.
I have no confidence that the husband will cooperate with the sale. If the husband refuses to sign the transfer, a Registrar of this Court will be able to do so in his place. Once the property is transferred to the wife, she will be able to conduct the sale without needing the husband or the Registrar to sign the agency agreement, the contract and other documents.
Contributions
The wife says that during the marriage she was primarily responsible for looking after the children. She also worked part-time.
The parties married on (omitted) 1981 in (country omitted). In 1990 and 1991 they built their four-bedroom home in (country omitted).
From 1999 to 2003 the husband did not work as he was in receipt of worker’s compensation for an injury. The wife was the primary income earner. The husband was not successful in his work cover claim as he was caught working as a (omitted) when claiming he was unable to work due to his injury. He did not receive any damages award as a result of this. The wife says that from 2004 onwards the husband would work sporadically for friends doing (omitted) and similar work and was in receipt of Centrelink payments.
In addition to working outside the home, the wife says she did all of the home duties the including cooking, cleaning, washing and assisting the children with homework.
In 1997 the parties purchased a property in (omitted) of (omitted) with their joint savings. They sold the property two years later and bought a property at (omitted). They used the proceeds of sale from their previous home together with a mortgage to purchase the property. In 2004 they sold that property and bought the land where the current matrimonial home is. They then built the former matrimonial home on that land.
The husband has occupied the home since the wife moved out on
17 July 2013. The wife moved into a rental accommodation. Up until November 2014 the wife paid half of the mortgage in addition to her rent. This is a post-separation contribution in her favour.
The car the husband drives is in their daughter’s name because he was unable to obtain finance and she agreed to assist him. She says the children do what they can to please their father so that he will leave the wife alone. It is the car that was purchased for $51,000. The daughter is still paying off the loan. That loan is about $20,000. This loan should be paid off from the proceeds of sale. The husband did not challenge the wife about this.
Section 75(2) factors
The wife is 50 years old. The husband is 57 years old.
The wife works part-time as a (omitted). She earns $450.00 a week.
The husband receives a disability pension and according to the wife does cash in hand work as a (omitted).
The husband has not disclosed his income. The husband’s failure to make full and frank disclosure is a relevant factor to consider under section75(2)(o). It is well established by authorities that once the court is satisfied that there has been non disclosures, the court need not be too cautious.
Family Violence
The wife says that during the marriage she and the children were subjected to family violence by the husband. The wife says that neighbours called the police to attend the home in 2005 and 2006 when husband became enraged and screamed and called the wife and children names.
The wife says that from about 2009 until 2013 there are several instances of family violence where the husband would make threats to her and she would have to leave home on several occasions. She also says that the husband was controlling of the party’s finances and would withhold her passport from her. On several occasions she would leave the home and stay with X, one of the parties’ children.
The wife’s next statement she made to the police on 24 September 2013 is attached to her first affidavit. In that statement she records that the husband physically assaulted her on numerous occasions throughout the marriage and also assaulted the children and that the police had been called to the home on several occasions. She provides details of what happened in the lead up to the parties separating. She says the husband threatened to kill her on several occasions since they separated. The police applied successfully for an intervention order on the wife’s behalf. An interim intervention order was made on 30 September 2013 which went beyond the minimum orders and included injunctions restraining the husband from communicating with the wife by any means, from approaching or remaining within 5 metres of her and from attending within 200 metres of (omitted), and any other place where the wife lives or works. On 5 February 2014 the Sunshine Magistrates Court made an intervention order in the same terms as the interim order for a period of one year.
In the wife’s second affidavit, the wife details further incidents of family violence which occurred particularly since the mother was in court in June 2014. The husband breached the intervention order on several occasions. He stalked the wife and threatened to kill her. He has threatened to kill her on several occasions. She says on 18 August 2014 the husband followed her in his car and nearly ran her off the road and said to her “the police can’t protect you and I will follow you and kill you.” On 12 November 2014 the husband was charged with resisting arrest and using threatening language to police.
In her oral evidence the wife said that the husband’s violence continued throughout the marriage every two or three months and took the form of hitting her over the head with a belt which knocked her unconscious, hitting her with fists and verbal abuse on a frequent basis calling her various derogatory names.
The wife gave evidence that this has taken a toll on her health and on her mental health and as a result she is taking tranquillisers for her nerves.
The wife also said that he mistreated the children in the same way that he mistreated her. He hit one child with a broom stick after he lost his bus ticket. There was an incident where he chased the children with a knife. As a result of the husband hitting one of his sons on head, the son ended up in hospital and needed 8 stitches. The son was 14 or 16 at the time.
She also gave evidence that the husband was financially controlling and that she would have to give all of her wages to him. He would pay the bills and then send money to his family. She also gave evidence that he controlled her movements and that she was not allowed to go out on her own. She said that when the local court proceedings had been in court recently, security had to be called.
My deputy called security immediately after I adjourned for the lunch break. Security remained in the court for the remainder of the hearing.
Exhibit I is the husband’s police records. Those records show that on 20 August 2014 the husband was charged with numerous offences including resisting police, contravening the family violence intervention orders, driving in a dangerous manner, threatening to inflict serious injury and threatening to kill. He was also charged on 14 February 2014 with several charges of making threats to inflict serious injury and had previously been convicted of charges including making threats to kill in 1997, assault with weapons and recklessly causing injury in 2011, assault with a weapon, recklessly causing injury and obstructing police in 2012. The husband was a (occupation omitted) himself in (country omitted).
The police report with respect to the husband’s arrest on 20 August 2014 included multiple breaches of the family violence order. When the police arrested him they noted that he became belligerent and aggressive. He resisted arrest and shouted “shoot me” he also said
“I will kill you and rape your mothers”.Other police records note that the husband was following the wife to her work and making threats to her. He also called the wife and their son threatening to burn down their son’s house. There are ongoing proceedings before the Sunshine Local Magistrates Court with respect to the breaches of the intervention order and other charges. The records also show that the wife has previously taken out intervention orders against the husband in 2004 which have also involved the parties children.
On 3 January 2004, X and the father were arguing over putting his sister’s bike in the garage. It escalated with the father picking up a wooden foot stool and hitting the son over the head with it. An ambulance attended and took the son to hospital. The previous argument between the two men escalated on 25 February 2004, which also involved the police attending the home. The wife also took out an intervention order against the husband on 2 June 1997. The police attended the parties’ home on 31 May 1997 with a complaint that the husband had assaulted the wife and his then 15-year-old son. The son fled the home and reported the incident. The police noted that the three younger children were at home and were extremely shaken. The mother had severe bruising to her back and had trouble breathing. The police noted that the husband was uncooperative. The mother and children were taken to the police station the mother was seen by a doctor. The police sought emergency accommodation for the mother and the children. The husband threatened to kill the wife in front of police members.
The subpoenaed material is concerning. It indicates a long history of violence and aggression by the husband towards his wife and the children. It also indicates aggression and belligerence towards authority figures. This is the belligerence and aggression that also evident when the husband appeared in this court. I formed the impression that he is a man who expects to get his own way. When he does not get his way he becomes belligerent and at times sarcastic and contemptuous.
At several points during the hearing it was necessary to warn the husband to confine himself to the relevant issues and not interrupt and talk over the top of me and others. It was also necessary to warn the husband on several occasions that he had to allow his interpreter to interpret the proceedings and not talk over the top of the interpreter and not run on with long speeches, making it impossible for the interpreter to keep up. The husband cross-examined the wife. On several occasions it was necessary to remind him that the purpose of cross-examination was for him to ask questions relevant to the issues in dispute and to not make statements or speeches. The husband asked most of his questions in a raised voice.
Throughout the hearing on numerous occasions the husband would start arguing with me about various points. He complained that the hearing is listed for the two days but did not start until late in the morning on the first day. The two-day listing was on the basis of it being a defended property hearing not an undefended hearing. The hearing took significantly longer than it should have given that the husband filed no evidence because of his disruptions.
The husband cross-examined the wife about gold jewellery. The wife says that she only received two gold rings from the husband and the rest she received from her family. On the second day of the hearing after the husband left the court room, the wife produced her jewellery which she held in the palm of one hand. She sought to tender the jewellery. I refused the tender. I do not propose to include the jewellery in the property pool. I have no evidence as to its value and no reason not to accept the wife’s evidence about it.
The husband also cross-examined the wife about the alleged break in into his home. Exhibit E is a crime scene services property sheet indicating a Rolex watch and the Sony DVD player being stolen from home which was reported on 13 August 2014. The husband accused the wife of breaking into the home. She replied she was entitled to attend the home and did so with the assistance of police. I am not satisfied that evidence establishes that the wife broke into the home and stole anything. She is a joint owner of the home and there was no order in place preventing her from attending the home. She says she went to the home when he was not there to collect some belongings with the assistance of the police.
The husband also accused the wife of ripping up his citizenship papers. Exhibit G is the wife and children’s citizenship certificates (the children are listed on the wife’s certificates) and the wife and children’s visas to travel to Australia. I accept the wife’s evidence that she did not rip up the citizenship documents.
The husband was keen to establish that he did not kick the wife out of the home but that rather she left at her own accord. He says he has videotaped this to prove it. He misses the point. The wife agrees that he did not physically kick her out but rather had made living there intolerable. She did not feel safe remaining in the home. I accept the wife’s evidence about this point and the subpoenaed records from the police support the wife’s contention about the husband’s violence and aggression generally.
At several points during his cross-examination of the wife he became argumentative with the wife and with me. He attempted to give evidence from the bar table. At the end of the first day of hearing I informed the husband that he would be allowed a further 30 minutes of cross-examination the next morning. He was warned that if he behaved inappropriately again his cross-examination would be stopped. The husband left the courtroom. The wife complained that during the husband’s cross-examination of her he was insulting her by calling her “(omitted)” which is a shortening of her maiden name which means you are nobody. She says the husband often called her this during the marriage telling her that she was nobody and nothing but a slut. Both interpreters agreed that the husband had been insulting. The husband’s interpreter said that he was used to that in his culture.
The husband attended court on the second hearing day and continued to cross-examine the wife. The wife agreed that the husband did not kick her out of the home but that she left with the children. She said that he forbade her to return and threatened to kill her. He made the same threats to one of their sons.
Ms Swann re-examined the wife. That process was explained to the husband. The wife said that the husband was tearing up photos and documents as she was packing her things. She says the citizenship of his papers was in the drawers and that she took hers and left his behind. She said that the husband tore up the citizenship papers in August 2013.
The husband became agitated when the wife was re-examined about the violence she was subjected to during the relationship. He complained that these are not criminal proceedings. The violence is relevant because of the wife making a Kennon style claim. He indicated that he would boycott the court. After several minutes he left the courtroom and the hearing continued in his absence.
The wife said that the tone of voice the husband used in the courtroom is what he would use with her and the family except for when his friends were around. She said that she lived in fear during the marriage and that coming to court, seeing and hearing his voice again made the fear return for her. She said she took offence at the way the husband deliberately mispronounced her name during cross-examination because it was to humiliate her and her family.
With respect to the work on the farm, she says this is the only time she heard what the husband accused her of making “black money”. She says that was because the husband was taking her to work there. The husband also worked there and produced a false name so he was not caught. This is the debt that she is repaying.
On 2 March 2015 the Sunshine Magistrates Court extended the intervention order for a five-year period. There are ongoing proceedings in that court with respect to the husband’s alleged breach of the intervention orders.
The law and its application to the facts of this case
Even in the case of undefended proceedings the applicant is not simply entitled to the orders he or she seeks. He or she must establish that the orders sought are just and equitable.
Part VIII of the Family Law Act1975 is the part of the Act dealing with property, spousal maintenance and maintenance agreement. The major provisions relating to marital property division are contained in sections 79(1); 79(2); 79(4); & 75(2) of the Act.
Pursuant to section 79(1) the Court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a marriage in relevant property.
The expression “property” is defined in section 4(1) in relation to the parties to a marriage or either of them as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
Pursuant to section 79(2) the Court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitory words “shall not” in the relevant section.
Section 79(4) provides the mechanics of how a Court is to make an order altering marital property interests.
Paragraphs (a), (b) and (c) categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the Court to take into account of any order regarding the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the Court to consider a list of matters contained in section 75(2), which are germane to spousal maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs. Finally, paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
Until recently, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court has recently considered the operation of section 79 in the matter of Stanford & Stanford [2012] HCA 52.In the case, the majority stated at [35]-[36] that:
“It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of section 79, which can be summarised as follows:
1. Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word existing.
2. Secondly, although section 79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
3. Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to section 79(2) in addition the matters referred to section 79(4).
In Stanford & Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of section 79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.
The High Court also pointed out that what is just and equitable is different in every case.
Stanford & Stanford casts doubt on the correctness of adding back notional amounts to the pool for the purposes of property settlement. The Full Court confirmed this in Bevan & Bevan [2013] FamCAFC 116. The Full Court said at paragraph [79]:
“We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.”
I am satisfied that it is just and equitable in this case to make a property adjustment between the parties.
I find that the wife’s financial and non-financial contributions including that of homemaker and parent is greater than the husband’s throughout the relationship. I am satisfied that she carried out the majority of the home making and parenting tasks as well as working part-time whilst there were periods during the relationship the husband did not work. The wife also continued to pay half the mortgage in addition to paying rent after separation until November 2014. I find that there should be an adjustment of 5% in her favour for this factor.
The wife submits that her contributions during the marriage were made more onerous because of the husband’s violent conduct throughout the marriage. The police records provide some independent corroboration of the wife’s claims.
The definition of family violence in the Family Law Act 1975 (Cth) is extensive. Section 4AB defines family violence and broadly to include “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family… or causes the family member to be fearful.” This behaviour can include assaults, repeated derogatory taunts unreasonably denying the family member financial autonomy, unreasonably withholding financial support and preventing the family member from making or keeping connections with his or her own family friends or culture. These definitions are relevant here as the evidence the wife provides is that the husband engaged in coercive and controlling behaviour that included physical assaults on her and children at various times as well derogatory taunts and financial and other controlling behaviour throughout the 30+ years of their marriage.
The wife seeks an adjustment in her favour taking into account the family violence and relies on the full court decision of Kennon and Kennon (1997) FLC 92 – 757. The Full Court said “our view is that where there is a course of violent conduct by one party toward the other during the marriage which is demonstrated to have had a significant adverse impact on that parties contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties respective contributions within s79.”
I am satisfied that the circumstances of this case falls within the category of cases the Full Court referred to in Kennon. I am satisfied that the wife and children were subjected to ongoing controlling family violence by the husband which involved both physical and other forms of abuse and that the wife was subjected to this throughout their long marriage which made her contribution to the marriage more arduous.
The wife gave evidence that this has had a lasting impact on her. She says she is prescribed tranquillisers for her nerves which relates to this. I am also satisfied that the husband’s violent conduct towards the wife has continued post separation. This long relationship violence is significant and ongoing. I find that there should be a further adjustment of 10% in the wife’s favour due to the family violence due to her contributions being made more arduous because of the family violence and because of her greater financial and non-financial contributions.
This is based on the limited evidence I have before me apart from the husband non-disclosure.
Due to the husband’s non-disclosure and the resource the husband has in the form of the property in (country omitted), I am also satisfied that there should be a further adjustment in the wife’s favour because of these factors of 10%.
In conclusion I find that the wife is entitled to an adjustment of 70% of the net proceeds of the sale of the property. The husband will keep the motor vehicles in his possession with the debt paid off. He will also retain any superannuation and undisclosed assets and bank accounts he may have. He will also be responsible for his credit card debt. I decline to include the $1,500 debt the wife thinks the husband had on his credit card at separation. The wife will retain her car of lesser value, her superannuation and bank accounts.
The wife’s orders sought with respect to the former matrimonial home
The wife seeks an order for possession of the former matrimonial home if the husband does not vacant the home within 7 days of the date of these orders.
I am satisfied that such an order is necessary so as not to frustrate the order for the sale of the family home. The husband is aware that the wife seeks this order as he confirmed he had a copy of the wife’s minute of orders sought. His interpreter went through the document with him at the beginning of the hearing.
The court is empowered to order a warrant of possession pursuant to section 34(i) of the Family Law Act 1975. See also in the marriage of Kollmorgan (1984) FLC 91-551.
The wife’s application for costs
The wife seeks an order that the husband pay the costs.
In order for the Court to make a costs order in favour of the parties there must be justifying circumstances as set out in section 117(2A) of the Family Law Act 1975. I will address each of these matters in turn.
(a) The financial circumstances of each of the parties to the proceedings
Based on the evidence I have before me the wife’s income is modest. The husband has not disclosed his income but is likely to be the disability support pension and money earned from cash jobs.
(b) Whether any party to the proceedings is in receipt of assistance by way of legal aid
Neither party is in receipt of legal aid.
(c) The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters
The wife says she has incurred significant legal costs whilst the husband has incurred none. That her legal costs have been increased because of the husband’s conduct throughout the proceedings which includes failures to appear, failure to cooperate at the conciliation conference and how he conducted himself at this hearing which included cross-examination, which was prolix and punctuated by ranting.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
The husband’s non-compliance with court orders has been detailed earlier in this judgment.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The wife has been successful in her application. At one point during the hearing, the husband said about the law was that there should be an equal division. If he believed that, he certainly never offered to resolve the matter on that basis.
(f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer
Not applicable.
(g) Such other matters as the court considers relevant.
The amount the wife seeks for her costs is modest. She seeks that the husband pay the $500 costs that he was ordered to pay after the conciliation conference. She also seeks $1,100 for her costs which were reserved after the court hearing on 13 May 2014. Finally she seeks costs in the sum of $5,000 for the final hearing. These costs are modest and are comparable to the Court scale, if not a little generous to the husband.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 10 April 2015
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