Livesey & Babington
[2024] FedCFamC1F 483
•11 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Livesey & Babington [2024] FedCFamC1F 483
File number(s): BRC 13625 of 2019 Judgment of: BAUMANN J Date of judgment: 11 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife sought and adjournment of the final hearing twice on the first day of trial – Where the final hearing had been adjourned previously – Where the husband has a serious health condition – Application refused
FAMILY LAW – PROPERTY – Where the parties produced final consent orders to the Court prior to the evidence being heard – Final orders by consent found to be just and equitable to both parties
Legislation: Family Law Act 1975 (Cth) ss 75, 79, 81 Cases cited: Babington & Livesey (2023) 67 Fam LR 347
Johnson v Johnson (No 3) (2000) 201 CLR 488
Re F:Litigants in Person Guidelines (2001) FLC 93-072
Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 10 and 11 July 2024 Place: Brisbane Counsel for the Applicant: Mr S Casey Solicitor for the Applicant: Griffiths Parry Lawyers Counsel for the Respondent: Litigant in person ORDERS
BRC 13625 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LIVESEY
Applicant
AND: MS BABINGTON
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
11 JULY 2024
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
1.That all previous Orders, but for the final parenting Order made 13 October 2022, be discharged.
2.That the Applicant husband shall retain the following assets free from any claim of the Respondent wife:
(a)Motor Vehicle 2 and any debt thereover;
(b)The balance of any bank accounts in his possession or control at the date of this Order;
(c)The balance of any liability and/or debt in his sole name or joint name with a third party as at the date of this Order with the husband to indemnify the wife in relation to any such debt; and
(d)His superannuation entitlements with Super Fund 1.
3.That the wife shall retain the following assets free from any claim of the husband:
(a)The property in Town B along with the mortgage secured thereover in her sole name with the wife to indemnify the husband in relation to such debt;
(b)Motor Vehicle 3;
(c)The balance of the D Lawyers Account, and this Order acts as an authority to D Lawyers to release such funds to the wife;
(d)The balance of any bank accounts in her sole name or joint name with a third party;
(e)The balance of any liability held in her sole name or joint name with a third party and shall indemnify the applicant in relation to such debt; and
(f)Her superannuation entitlements with all superannuation accounts held in her name.
4.That from the date of this Order unless otherwise specified and except for the purposes of enforcing payment of any money due under these or subsequent Orders:
(a)each party will be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of this order including any jewellery, furniture, furnishings, shares and motor vehicles;
(b)monies standing to the credit of the parties and any bank accounts to be the property of the party in whose name such bank account is held;
(c)each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stands shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other; and
(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 this Order.
Closure of joint accounts
5.That within fourteen (14) days of the date of this Order, the parties will do all such things and sign any documents as may be necessary to attend to the closure of any joint accounts that may remain open in the joint names of the parties with the balance held in any accounts to be divided equally between them.
Execution of documents
6.That in respect of these Orders and the requirement of the parties to execute documents, the parties shall execute all documents necessary to put into effect the terms of these Orders within fourteen (14) days of presentation of same by the other party or the solicitors for the other party. If either party refuses or neglects to do any act or thing or to sign any document necessary to give effect to these Orders, then pursuant to Section 106A of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit and Family Court of Australia is hereby appointed to execute all documents in the name of the husband and/or wife and do all acts and things necessary to give validity and operation to the said Order.
7.That if either party refuses or neglects to do any act or thing or to sign any document necessary to give effect to these Orders, then pursuant to s 106A of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit and Family Court of Australia is hereby appointed to execute all documents in the name of the husband and/or wife and do all acts and things necessary to give validity and operation to the said Order. The defaulting party is to meet any costs associated with their default. An affidavit of the solicitor of the party seeking to enforce the terms of the Order against the other party who has refused or neglected to comply with the provisions of the Orders shall be sufficient evidence to the effect that there has been refusal or neglect to comply and that the Registrar is entitled to rely upon that affidavit to exercise his or her power under s 106A of the Family Law Act 1975 (Cth).
8.That there be no order as to costs.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Livesey & Babington has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J
The parties to this long litigated financial dispute are the wife, Ms Babington, who is now 47 years of age, and the husband, Mr Livesey, who is now 49 years of age.
This case is shaped by a tragic, likely future event. The husband has been diagnosed with a serious medical condition. Although anyone with such diagnosis would always hope for the best, they must, in a pragmatic way, plan for the worst.
The parties reached final parenting consent orders after, or at a trial before a Judge in Division 2 of the Federal Circuit and Family Court of Australia, with those Orders being made in October 2022, the effect of the Orders being that their children – X born in 2012 and now 11 years of age, and Y born in 2015, approaching her ninth birthday – live in a week-about arrangement with the parents in Region C.
Region C is not the only place that this couple have lived since they met, they lived in the United Kingdom in mid-2002, where the husband was born. The wife was born in the United States. After meeting, there was a history of them travelling as a couple and/or separately, and/or having periods where they may not have been in a coupledom. The evidence, untested by reason of how this matter progressed, did not clarify that issue.
However, what is clear is that the parties made a choice to live in Australia in 2007, and have primarily lived in this country since that date. They were married in this country in 2008, at which time the husband, who is an educator by profession, was employed in Sydney at an educational institution. The wife, who has also a strong academic background was working at that stage in the education sector.
It is clear on the evidence, and not in dispute, that before the parties commenced their family, they both took 12 months leave, travelled, and no doubt cemented their relationship. X’s birth in 2012 and Y’s birth in 2015 all preceded the parties relocating to Region C in 2018.
The wife said her belief was that the move to Region C was temporary. The husband had employment. The mother also secured employment with an educational provider.
Because the evidence has not been tested, nor is it relevant or necessary for a finding because of the consent orders the parties have reached, the relationship clearly was deteriorating by 2018.
There is a conflict between the parties as to whether they actually separated in 2018 as the wife asserts, although she concedes that they were separated under the one roof for a period thereafter, or, as the husband asserts, in 2019, with a short period of separation under the one roof for a couple of weeks thereafter.
The importance of separation to the parties seemed to be, particularly in respect of the wife, that the home – which is the most substantial asset of the parties, in Town B – was purchased in her name solely around separation. The husband gives an explanation for that commercial decision. Again, that was not tested. Another issue in dispute – and again, not resolved – is that the husband says the funds required to fill the gap between borrowings on the purchase of the home were from a joint account. The wife asserted that the funds actually represented funds that she held, it seems, for over 10 years as a result of redundancy payments from V Company back in the United Kingdom.
I find it difficult to accept, in the absence of the evidence being tested, that this couple – with their lifestyle, their children, their own needs, their holidays and the like – quarantined in some way funds that may have been available, as the wife says they were, when they came to Australia in 2007 – for future purchases of a home nearly 12 years later. That does not make sense to me. I think the better view is that, like most couples, the income was pooled and expenses were paid. The husband concedes, and properly so in my view, that the wife’s income when received, and not on maternity leave and the like, was higher, perhaps by a figure as much as 30 per cent than his, but as the Full Court has made clear on more than one occasion, in determining contributions, the Court is not encouraged nor in fact should it adopt some form of calculation or audit of income. Relationships have more ups and downs and more ins and outs than that.
The parties were also, on their evidence, as untested as it was, apart in relation to their non‑financial contributions. Again, reflective of the level of toxicity that their relationship sadly has reached, each of them claimed they were the primary carer of the children. Neither of their affidavits made any reasonable concession about the efforts of the other parent. Again, in my view, the more likely result is that they did what they could when they could with their children. It enabled them to form good relations with their children such that the consent orders for equal time were both made by consent and have been sustained under enormous pressures, including this ongoing litigation.
These parties have not had the benefit, as some couples do, of financial windfalls in the form of inheritances, gifts, lottery wins or personal injuries awards. Really, what the parties now have represents, in my assessment on the evidence, a genuine endeavour by both parties to do what they could to improve their future financial position; provide for their children and try to secure financial stability.
I do not propose, in these Reasons delivered ex tempore, to repeat all of the comments I have made to the parties today when testing and exposing their arguments, so that I could be satisfied, as the law compels of me, that the orders that are produced are just and equitable and create finality as required by s 81 of the Family Law Act1975 (Cth) (“the Act”).
I do not think that anyone in the courtroom can really understand what the father is having to consider and how he manages his diagnosis, because nobody else in the courtroom is in his position. In my view, based on the evidence, a contribution finding of approximate equality is well open to the Court in terms of the length of the relationship and the efforts they made of both a financial and non-financial nature. The period post separation – whenever it occurred, but at least adopting for the moment the husband’s position – is a shorter period of time than the whole of the relationship, of course.
The wife has been desperate to retain the home, and she does so, in my view, for perfectly understandable reasons. Her desire to retain the home has been, I think, magnified by the difficult health situation of the children’s father. She wants to provide stability in the children’s lives. She knows that if the father passes, as his current diagnosis suggests will occur, these children will be greatly distressed, and she will need to keep as much of their life as it was, including where they live, for them. I give her credit for that endeavour. It was the endeavour that I supported when, after the matter was remitted by the Full Court through a decision of Tree J in August 2023 for a re-hearing (see Babington & Livesey (2023) 67 Fam LR 347), and I had to, prior to Christmas 2023, deal with an Application by the wife, who was then unrepresented, to refinance the home to preserve the home. Those orders were made.
Sadly however, as the history of this matter will demonstrate, both parties have used plenty of opportunities to try and agitate for interim orders in respect of things that should have been resolved. Whether some of those difficulties arise from the fact, as I will soon return to, that the wife had, during these proceedings that had commenced with parenting proceedings only in November 2019, 10 different lawyers, despite attempts to have this matter dealt with on a final basis at trial, the history shows that that was problematic. Even when the matter was transferred by a Division 2 Judge to this Court in August 2023, a mere two days after the remittal by the Full Court, getting the matter on for trial has been difficult.
As the parties know, it then came into my docket as Case Management Judge. Bearing in mind the husband’s diagnosis, it was my hope that I could have a trial completed before Christmas 2023. An updated valuation of the home was required. It was procured from a single expert, Mr W, and filed with the Court on 29 November 2023. For reasons which the parties understand and do not need to be repeated, an attempt to have the trial dealt with before Christmas could not occur, not because of the Court’s availability, but other issues relating to the parties. Secondly, the trial listed before me in March 2024 had to be adjourned because the mother was dealing with the issues relating to the health of her mother, who was a citizen of the United States of America. The wife quite properly identified a need to go to travel to the United States of America to provide comfort to her mother and her father, both of whom are in their 80s. Sadly, her mother has passed. The trial was therefore adjourned, to commence on 10 July 2024.
FIRST APPLICATION FOR ADJOURNMENT OF TRIAL
The record will show that the Court was confronted with an Application, even though the mother had lawyers appointed on her behalf under s 102NA of the Act, prepared by the mother herself, to adjourn the trial. On 10 July 2024, I refused that Application. The reasons are apparent from the transcript. I need to say nothing more.
When the matter was not adjourned, the parties invited the Court to allow the parties to negotiate. I must say, from my perspective, I did not share enormous optimism, in view of the issues and that these parties, who had been entrenched in conflict for so many years, could negotiate anything. Nonetheless, by 2.30pm on the first day of the trial, after many hours of negotiations, I was then confronted with an application by the barrister who appeared for the wife, Mr Duplock, and his instructing solicitor to withdraw on ethical grounds.
As the transcript would reveal, I permitted that to occur.
This again left the wife unrepresented and with a cross-examination banning order restraining her ability to cross-examine the father, the only witness in his case was his treating medical professional, Dr Z. I explained to the wife that she would not be able to cross-examine the husband. The wife was well aware of this impediment. It had been explained to her previously by me, when I was aware of the number of occasions she had changed lawyers, for whatever reasons that was necessary. I did not want her to feel that she did not know what would happen if she did not have a lawyer. I accepted, on her evidence, untested, that she had financial difficulties in meeting the costs of a lawyer privately.
SECOND APPLICATION FOR ADJOURNMENT OF TRIAL
Confronted with those issues, the wife, again not surprisingly, and understandably in many ways, sought an adjournment of the trial. For reasons delivered, I refused that application. The transcript reveals that yesterday afternoon, I did, in accordance with the best principles of Johnson v Johnson (No 3) (2000) 201 CLR 488 and Re F:Litigants in Person Guidelines (2001) FLC 93-072, provide some assistance to the mother to understand what preparation she may need to do in respect of submissions to be made and/or in respect of evidence to be tendered. She directed me to a case outline that had been filed on her behalf in which she identified which of the 57 subpoenae that have been filed in these proceedings since the filing of the husband’s Initiating Application in 2019, that she sought to rely upon in a very general and generic sense.
The record will show that I invited the mother to return to the Court by at least 9.45am on 11 July 2024 and to provide to Mr Casey, Counsel for the husband, a list of the specific documents that the mother wished to rely upon and tender.
In that regard, when the matter was called on shortly after 10.00am, at a time when I had made arrangements, through my Associate, to have subpoenaed documents available from the subpoena section, as identified in the mother’s case outline – I was presented with a form of final orders.
THE CONSENT ORDERS
The transcript will reveal that the wife identified that she supported these orders being made. I explained to the mother, it being a fact well known to Mr Casey of Counsel, that the mere consent of the parties was not sufficient to meet the Court’s obligations to make orders, which is to make an order that has finality under s 81 of the Act, but also is just and equitable to both parties under s 79 of the Act.
What was then undertaken was an exploration of various submissions made by Mr Casey and by the wife. I do not propose to repeat in these ex-tempore Reasons what was a discussion that went for at least an hour to an hour and a half.
As the exchanges with the Bench revealed, some factual issues remained in dispute, as follows:
(a)The pool of interests of the parties was not totally agreed;
(b)The wife still considers that the equity she has in the home in Town B is probably less than but could not be more, even on the single expert’s evidence, than $332,000. In fact, she says the equity is only $297,000;
(c)The husband opines, on this single expert’s evidence, that the equity is more in the range of $383,000;
(d)Mr W’s evidence would, in my view, support the equity being approximately $383,000, but that is not a guarantee about that being the current market value. And even that figure brought into account a 10 per cent allowance, effectively, to the wife, of a reduction in the value of the home. There are cars of not significant value and limited liabilities that still exist and add-backs that were not pressed.
The only other class of asset is currently superannuation.
The superannuation is not a particularly easy exercise because, arising from the Orders of Judge Coates (as he then was) made on 31 March 2020, 50 per cent of the husband’s then Super Fund 1 benefit was split to the wife, and 50 per cent of the wife’s Super Fund 2 benefit was split to the husband. Now, although an application to stay Orders was made to Judge Coates and the Orders were partially stayed, the splitting order was not stayed. Nonetheless, the Full Court set aside those Orders, by which time, the split had been perfected.
I raised with Mr Duplock and Mr Casey yesterday (before Mr Duplock sought leave to withdraw from the matter) that in constituting the pool, it might have been helpful to notionally add back the split so as to return the parties’ superannuation to, notionally, the interest that they had at the time of the first trial.
In circumstances where the parties have reached an agreement and no splitting order is sought now, the Court can proceed comfortably on the basis that the superannuation that the parties now have remain their superannuation interest.
On the evidence, I do find, that:
(a)the husband’s current superannuation interest is approximately $386,646, although the wife says it may be up to $4,000 greater; and
(b)the wife’s combined superannuation interests, which include a new policy of $87,581 as a result of the first ordered superannuation split, totalled $409,880.
The minutes of consent order do not seek any further spitting order.
ARE THE ORDERS JUST AND EQUITABLE?
The effect of the orders that I am asked to make are that, effectively:
(a)there be no splitting orders;
(b)that the husband retain the assets that he has, including any superannuation benefits, and be responsible for any debts that he has;
(c)that the wife retain the Town B property, which is encumbered by a mortgage, all in her name, for which mortgage she shall be responsible; and
(d)that the wife receive the balance of funds of approximately $6,000 that remains from the refinancing in the trust account of her former lawyer.
Mr Casey says, considering the differences in the pool, that the effect of the orders on the husband’s estimated pool is approximately 68 per cent to the wife and 32 per cent to the husband. He says that, on the wife’s pool, it is slightly less to the wife, and more in the region of 66 per cent to 63 per cent.
SECTION 75(2) FACTORS
It is clear that the contribution finding that is open to the Court of approximate equality, because of the financial and non-financial contributions to the acquisition, maintenance, and improvement of the matrimonial pool of assets during the relationship to the time of trial (not just to the time of separation), would require an adjustment to the wife for the s 75(2) factors. I agree that is appropriate.
In dealing with those s 75(2) factors, the, if you like, “elephant in the room”, is the benefits the husband might receive during his lifetime as a result of entitlements he has, either under a United Kingdom pension fund, but more particularly, a contract of insurance that has a trauma payout entitlement.
The wife, when she had lawyers, but most often when she did not, has persisted continuously to seek more information about those entitlements. I am not critical in her doing so. At times, I felt some of her inquiries were more directed to the father’s medical condition, and it was intrusive and not fair to him, but nonetheless, it was important that the Court have some understanding of what his entitlements might be. They are a s 75(2) factor now because the entitlements not having vested and not even being certain could not constitute property on normal principles. As I discussed with the wife, I am not satisfied on the evidence that the husband will get any benefit before his death from the United Kingdom in relation to his pension fund. The position in Australia is, in my view, a little more certain.
The husband was, as a result of the urging by the wife, to be fair, restrained from dealing with his Super Fund 1 life policy and/or superannuation. Preserving that interest was absolutely appropriate at different times. However, as a result of, I infer, the husband’s deteriorating health condition, he sought and the wife agreed, and as a result, I made a consent order that enabled him to engage with the company with whom he has a life policy with a trauma component. That only happened recently. As best I can see, the husband is pursuing – hopefully, in his position, with success – a payout from his insurer under a trauma component based on his diagnosis.
I am told by Mr Casey on behalf of the husband that he has an appointment in the next week or so to gain further evidence to hopefully persuade his insurer that he fits within the category of people who are entitled to be paid out under the policy. Whilst the wife thinks that is almost inevitable, it is not. Nonetheless, for good reasons, the husband is seeking to pursue it. There is no reason to suggest that he will not be successful if that is, contractually, his entitlement. The amount he receives could be a gross amount as high as $658,000. It may be less. It may be affected by tax. It is, however, a likelihood of a payment prior to the husband’s death.
It is a relevant s 75(2) factor in these ways:
(a)Even though the husband, should he pass, of course has no s 75(2) factor issues in his favour, the wife will have an increased obligation to meet the financial and emotional requirements of the two young children. Because the entitlement is not property and is so conditional it could not be construed as property, it is not possible to deal with that payment at this stage;
(b)It is reasonable to infer, however, taking the worst case scenario of the husband’s demise in early 2026 – which everyone in the Courtroom would hope will not be the case, but nonetheless could be the case – any payment the husband sees will, I infer, firstly need to meet his external debts, which includes his lawyers who have acted for him for some time now, as well as debts accumulated with other lawyers and legal costs funders;
(c)Whether he chooses to repay to his parents monies which they have provided to him to support either his lifestyle or his legal costs, is a matter totally for him. I have no evidence they are demanding repayment;
(d)He then of course, with a limited life, has the opportunity to use his money to enjoy as best he can his limited time. He should not be required, and I have not required him, to speculate about how he might do that. The mother is suspicious that he will do it in a way which might not leave some of the funds for the children. I do not think that is a very generous interpretation of this man, and I do not accept it. Nonetheless, his primary and necessary entitlement is to spend his money as he wishes.
I think, however, it is more likely they are not, either through superannuation, any benefits that might – I put it no higher than that – accrue from the United Kingdom pension fund, and any residual funds left from the payout from Super Fund 1, but more likely than not that there will be an estate for this man.
There is nothing in the material that would suggest to me that he does not understand the extra financial burden that will be posed upon the wife on his passing. There is nothing in the material that would suggest to me that this dedicated father – an educator of many years who clearly has an affinity with children – would, to the extent that he is not able to do so personally, deprive the children, unrealistically, of some benefit that could have come from his estate. That benefit would necessarily generate some support for the children and may relieve, to some degree, depending on the terms of his will and the like, some of the costs of education and development of the children.
SHOULD THE COURT MAKE THE ORDER OFFERED?
I am satisfied, for the Reasons I have given, and do not repeat but rely upon the exchanges with the parties today, that the order I will make is just and equitable to the parties. It provides finality.
Importantly, paragraph 8 provides that there will be no orders as to costs, which is an important factor because both parties have incurred significant costs in the journey.
I should mention, for the sake of the record, and I raised this initially, that the order offered to me this morning is dated and signed by the parties yesterday. I of course do not know, nor do I inquire as to why this was not presented to me yesterday, except that, of course, the lawyer for the wife had cause to withdraw. However, I am satisfied from my inquiries to Ms Babington today that, although that might be seen on the signing of the document as an agreement reached yesterday, she is still prepared to support the Court making the orders today. I do so.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 8 August 2024
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