Lotte & Inger (No 2)
[2024] FedCFamC1F 72
•13 February 2024
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Lotte & Inger (No 2) [2024] FedCFamC1F 72
File number(s): BRC 14228 of 2021 Judgment of: HOGAN J Date of judgment: 13 February 2024 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Where there is a period of cohabitation of approximately 18 years – Where the matrimonial home is the only asset for consideration –Where a litigation guardian was appointed for the Respondent – Where the Respondent has not meaningfully participated in the proceedings – Where the hearing proceeded on an undefended basis – Where the Applicant’s contributions have been made more arduous by the Respondent’s behaviour before and after separation Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth)
Cases cited: Lotte & Inger [2022] FedCFamC2F 559
Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10
Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Kennon v Kennon (1997) FLC 92-757; [1985] FamCA 57
Lee Steere and Lee Steere (1985) FLC 91-626; [1985] FamCA 57
Mallet and Mallet (1984) 156 CLR 605; [1984] HCA 21
Pastrikos and Pastrikos (1980) FLC 90-897; [1979] FamCA 56
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Waters and Jurek (1995) FLC 92-635;[1995] FamCA 101
Weir & Weir (1992) 16 Fam LR 154; [1992] FamCA 69
Division: First Instance Number of paragraphs: 69 Date of hearing: 12 February 2024 Place: Brisbane Counsel for the Applicant: Ms Karaman Solicitor for the Applicant: McLaughlins Lawyers Litigation Guardian for the Respondent: Mr Nylander ORDERS
BRC 14228 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LOTTE
Applicant
AND: MR NYLANDER AS LITIGATION GUARDIAN FOR MR INGER
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
13 FEBRUARY 2024
IT IS ORDERED, BY WAY OF FINAL ORDER PURSUANT TO S 79 OF THE FAMILY LAW ACT 1975 (CTH), THAT:
1.Within thirty (30) days of the date of these orders, the Respondent pay the Applicant the sum of $405,000.00 by payment into the trust account of the Applicant’s solicitors, McLaughlins Lawyers.
2.Save for the purpose of using the Town D property as collateral for any borrowings needed to pay the Applicant the amount of $405,000.00, the Respondent is restrained and an injunction issue restraining him, his servants or agents, from dealing with or further encumbering the real property located at F Street, Town D in the State of Queensland, more particularly known as Lot … on SP … ("the Town D property").
3.In the event the Respondent fails, omits or neglects to comply with Order 1 above, then the Town D property shall be offered for sale by private treaty and, for the purpose of this:
(a)the Applicant shall be appointed as trustee for sale and shall hold the Town D property on trust for the parties (“the Trustee”); and
(b)the Town D property shall be sold pursuant to the sale orders herein; and
(c)as Trustee, the Applicant shall do all things necessary to procure the sale of the Town D property including:
(i)engage and direct a Real Estate Agent as to the marketing, listing and sale of the Town D property; and
(ii)negotiate terms of sale with potential buyers of the Town D property; and
(iii)engage and instruct a firm of solicitors to act in the sale; and
(iv)execute all documents in respect of the sale, including the Contract of Sale and Transfer documents.
4.Upon appointment of the Trustee, the Respondent shall provide the Trustee with all records and documents in his possession or control relating to the Town D property including:
(a)a current certificate of insurance, council rates and water notices; and
(b)any Certificate of Title; and
(c)any document pertaining to the purchase, improvement and preservation of the Town D property relevant to the capital gains tax base of the Town D property.
5.The Respondent shall ensure that the Town D property remains insured and shall pay all insurance premiums, water charges and municipal rates as and when they fall due and, should there be any water charges and municipal rates outstanding at the date of settlement of the sale of the Town D property, he shall be solely responsible for paying the same.
Conditional Occupancy
6.Pending the sale, the Respondent shall have sole use and occupation of the Town D property provided that he co-operate in every way with the Real Estate Agent, Auctioneer or employee or agent thereof (“the Agent”) in relation to the sale including:
(a)ensuring that the Town D property is clean, neat and in good condition at the time of any inspection, including inspection for the purpose of marketing, and any day of auction; and
(b)permitting access to the Town D property and photographs to be taken of the Town D property for the purposes of advertising and marketing the Town D property for sale; and
(c)allowing inspection and access to the Town D property at all times reasonably requested by the agent.
7.In the event the Respondent remains living in the Town D property at the date when the contract for its sale is signed:
(a)the Respondent shall vacate the Town D property fourteen (14) days prior to the settlement date of the sale of the Town D property; and
(b)the Respondent shall be given written notice of the settlement date at least seven (7) days prior to the date on which he is required to vacate the Town D property; and
(c)upon vacating the Town D property, the Respondent shall deliver to the Agent all keys, codes or devices in his possession or control for all locks, gates, doors and security systems on the Town D property; and
(d)the Respondent shall be responsible for all rates, electricity, insurance and outgoings of the Town D property as they fall due up to and including the settlement date of the sale of the Town D property; and
(e)the Respondent shall cause to be repaired any damage to the Town D property, such repair to be at the Respondent’s own expense.
8.If the Respondent fails to comply with any of the matters set out in Order 6:
(a)the Respondent shall be given seven (7) days’ notice to vacate the Town D property; and
(b)the Respondent shall vacate the Town D property within fourteen (14) days of receiving the notice to vacate; and
(c)the Applicant shall thereafter be entitled to sole use and occupancy of the Town D property provided that she comply with the matters set out in Order 6.
Property Sale
9.In default of payment by the Respondent pursuant to Order 1, the Trustee shall cause the Town D property to be listed for sale by private treaty within seven (7) days thereafter (“the Listing Date”).
10.In the event the Town D property is not subject to an unconditional Contract of Sale within three (3) months from the Listing Date, the Trustee shall be at liberty to sell the Town D property by auction where:
(a)the reserve price shall be as agreed by the parties and failing agreement, as nominated by the appointed Agent; and
(b)the sale price will be an amount in excess of the reserve price; and
(c)in the event of the reserve price not being reached – the sale price will be such amount as is agreed between the parties and, failing agreement, any offer received after the auction to buy the Town D property at a price that is at least 90% of the reserve price shall be accepted by the Trustee.
11.In the event that the Town D property is not sold at auction pursuant to the above order, or within fourteen (14) days thereafter by negation, the Trustee will cause further auctions of the Town D property to be held every three (3) months with the reserve price to decrease by an amount as agreed between the parties but failing agreement, by no more than 10% on each occasion and otherwise on the same terms and conditions as the above order until the Town D property is sold.
12.The parties shall be equally responsible for and cause payment of 50% of any upfront costs in relation to the sale of the Town D property and, in the event one party pays all of the costs in the first instance, that party will be reimbursed 50% of those costs from the other party’s entitlement upon distribution of the sale proceeds to the parties.
13.Upon either compliance with Order 1 or at the direction of the solicitors acting in respect of the sale of the Town D property, the Applicant shall provide a signed withdrawal of Caveat for Caveat Dealing Number … lodged over the Town D property and the lodgement fee for the withdrawal.
14.On settlement of the sale of the Town D property, the proceeds of sale be paid in the following manner and priority:
(a)all costs and expenses of sale including legal costs and disbursements, agents commission, valuer’s fees, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties as foreshadowed in Order 12); and
(b)the balance then remaining be paid to the parties as follows:
(i)such amount to the Applicant as is necessary to see her receive 45% of the balance then remaining; and then
(ii)the amounts required to pay any municipal and water rates outstanding with respect to the Town D property; and then
(iii)$5,000 to be paid to the Applicant in satisfaction of the Order made by the Senior Judicial Registrar on 23 February 2022; and then
(iv)the balance to be paid to the Respondent.
15.Unless otherwise specified in these orders and save for the purpose of enforcing the payment of any monies due under them or any subsequent orders:
(a)each party is entitled, to the exclusion of the other, to be the sole legal and beneficial owner of all property (including any choses-in-action) in that party’s possession or under that party’s control, including but not limited to:
(i)any interest held by that party in any real property; and
(ii)any shares in any corporate entity or any interest under any Trust; and
(iii)any funds standing to the credit of that party in any bank account; and
(iv)any furniture, furnishings and personal effects of whatsoever nature in that party’s possession; and
(v)any entitlement to superannuation; and
(b)each party is solely liable for and shall indemnify the other in relation to any liability encumbering any item of property to which that party is entitled pursuant to this Order.
Litigation Guardian
16.The Litigation Guardian shall remain appointed for the Respondent in these proceedings until payment has been made to the Applicant pursuant to Order 1 or to the parties pursuant to Order 14.
17.In the event that a party refuses or neglects to sign a document necessary to give effect to these Orders within fourteen (14) days after being requested to do so, and any such refusal, failure or neglect is evidenced by an affidavit filed and served by or on behalf of the party alleging this, a Registrar or Senior Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 1) is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument and operation to these Orders.
18.Upon the giving of seven (7) days’ notice in writing, the parties have liberty to apply to the Court in relation to the implementation or interpretation of these Orders.
19.Save as to the issue of costs, all outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 the pseudonym Lotte & Inger has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These proceedings require the determination of those orders which are just, equitable and appropriate in all the circumstances with respect to the property of the parties.
The way proceedings such as this, for property settlement orders, are to be approached is well known.[1] The parties’ voluntary separation some years ago has meant that they no longer enjoy the common use of property in which their existing legal and equitable interests were acquired during the parties’ approximately 18-year cohabitation. Such separation has also brought to an end any “assumption that any adjustment to those interests could be effected consensually as needed or desired”.
[1]See, for example: Pastrikos and Pastrikos (1980) FLC 90-897; Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Waters and Jurek (1995) FLC 92-635; Clauson and Clauson (1995) FLC 92-595; Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 and Stanford v Stanford (2012) 247 CLR 108.
I accept that, in the circumstances, it is just and equitable within the meaning of s 79(2) of the Family Law Act 1975 (Cth) (“the Act”), that pursuant to s 79(1) of the Act, orders altering the interests in property owned by the parties are made.
There is some conflict, in a restricted sense, as to the terms of the orders which are appropriate to reflect properly those matters which, by s 79(4) of the Act, must be considered.
The competing proposals
The Applicant (the wife) advanced that the orders which are just and equitable in all the circumstances of this case are orders which would see her receive property valued at 45 per cent of the total net value of the property of the parties.
The Respondent (the husband) has filed no document outlining his actual response to the orders sought. As noted yesterday during my discourse with the Applicant’s Counsel and Mr Nylander, the Litigation Guardian appointed pursuant to an order made earlier by Judge Murdoch, the Respondent has not filed any affidavit for use at trial, nor has he filed a Financial Statement as required on a number of occasions by various orders made previously during the conduct of this proceeding.
Mr Nylander, though, quite properly, in my view, submitted that the range of orders open to the Court encompassed that suggested on behalf of the Applicant, and orders which would see her receive property valued at 35 per cent of the total net value of the property of the parties and the Respondent receive property valued at 65 per cent of the same.
Brief overview
The Applicant, who will be 38 years of age this year, was born in 1986; the Respondent, who will also be 38 years of age this year, was born in 1986. They commenced cohabitation in 2002, lived together on what might, in one way, be described as an on-again-off-again basis, and married in 2014. They separated finally under the one roof in August 2020, and then lived separately from about March or April 2021.
There are three children: 14 year old X, who was born in 2010, and 10 year old Y, who was born in 2013, and eight year old Y, who was born in 2015.
At present, the children live with their parents in something of a week-about parenting regime. They do so pursuant to agreement, as there are no current parenting orders in place.
In 2006, (that is, approximately four years after the parties first started to live together) the Respondent was injured in an accident; he was subsequently awarded an amount of over $1.5 million as a consequence of this. Whilst the actual amount received by the Respondent is unknown to me in these proceedings, it is clear that the funds he received were used in about 2009/2010 to purchase real property situated F Street, Town D, Queensland (“the Town D property”) for over $550,000, and to subsequently support the family financially.
The Town D property, which is owned solely by the Respondent, and in which he resides at present, is all that remains of the payment made to him. Whilst the orders sanctioned by the Queensland Supreme Court, by which he was paid damages, provided for a payment of funds to the Public Trustee for managing his financial affairs, the appointment of the Public Trustee as his financial administrator was subsequently revoked by an order made by the Queensland Guardianship and Administration Tribunal, as that Tribunal was then known. The Reasons for such order are not before this Court.
The appointment of a litigation guardian and non-compliance with Directions
On 25 May 2022, Judge Murdoch of the Federal Circuit and Family Court of Australia (Division 2) made an order appointing a Litigation Guardian based on the material before the Court at that date. That order was made following the grant of leave to the Applicant to make an oral application for an order appointing a Litigation Guardian.
At that time, the Court, it seems, was, of its own volition, concerned about the Respondent’s ability to adequately conduct these proceedings, and was therefore persuaded to make an order for the appointment of a Litigation Guardian.[2]
[2] Lotte & Inger [2022] FedCFamC2F 559, paragraph 36.
I have had regard to the Reasons delivered by Judge Murdoch in support of the orders made on 25 May 2022.
As previously noted, the Respondent has not complied with numerous Directions made by this Court for the filing of material – namely orders made on 8 December 2021, 23 February 2022, 30 November 2022 and 22 September 2023. In summarising these orders, I have taken into account orders made whilst this proceeding was before the Federal Circuit and Family Court of Australia (Division 2).
As a result of the Respondent’s non-compliance with various orders requiring the filing of material to enable the Court to appreciate his case, the matter proceeded by way of undefended hearing yesterday, for the Reasons I expressed then. It is sufficient in these Reasons to note again that the Court does not have the benefit of any affidavit material filed on behalf of the Respondent by either himself or any witness, nor is there a Financial Statement outlining his current financial circumstances.
The property of the parties
As discussed with Counsel, I intend to proceed on the basis that, realistically, the only asset available for consideration is the Town D property. It is unencumbered and, as I have already noted, legally owned by only the Respondent.
I make the following comments in relation to other aspects of the property owned by the parties:
(a)Motor Vehicle 1 has now been sold by the Applicant for $5,000 and I accept the assertion made from the bar table to the effect that the funds received were stolen; and
(b)Motor Vehicle 2 was written off, and the outstanding loan amount relating to it will be the subject of consideration when I turn to consider the relevant s 75(2) factors; and
(c)whilst the Respondent owns shares in G Pty Ltd – and the evidence given by Mr H, who was called by the Applicant following his answer to a subpoena served upon him, was to the effect that the Respondent received a payment of $30,000 in 2017, approximately three years before the parties separated to live under the one roof in August 2020 in a shared buyback – the evidence before me included that G Pty Ltd has never made a dividend payment to any shareholder. Further, the content of the reports to shareholders prepared by Mr H, which are in evidence before me, did not inspire confidence in me in relation to the likelihood of the Respondent receiving future returns on his investment in that company: it is, in my mind, a prospect – but I am not persuaded that it could be realistically regarded as being more than that; and
(d)whilst the Applicant contended that Motor Vehicle 3 driven by the Respondent should be accorded a value of about $24,500, Counsel who appeared for her conceded that the Redbook Valuations sought to be relied upon as providing the evidentiary basis for that value did not relate to the vehicle itself – such concession was entirely proper; and
(e)the Respondent’s entitlement to superannuation stands at $667 – that amount does not meet the amount required to enable a superannuation splitting order to be made; and
(f)whilst the Applicant originally sought that the Court notionally add back the amount of $280,000 which was paid by the Respondent to a man he met in a failed attempt to invest in what seemingly was some kind of scam, Counsel who appeared for her at trial did not press such a claim – given the evidence, and in particular, the contents of the Reasons for Judgment referred to by Judge Murdoch (and particularly the reference therein to aspects of the medical evidence and assessments of the Respondent), such an approach and such a concession was also, in my view, entirely proper.
Given such observations, and noting them, I have concluded that it is appropriate to proceed on the basis that the parties will retain whatever property each currently has in their respective possessions. I have considered it appropriate, therefore, to focus simply upon the Town D property, which has been valued most recently via a kerbside inspection (necessitated because of the Respondent’s refusal to allow the valuer access to the property) at $900,000.
The s 79(4) considerations
In considering the relevant matters mandated by s 79 of the Act, it must be remembered that:
(a)“community of ownership arising from marriage has no place in the common law”; and
(b)there is no presumption of equality of contribution between parties to a marriage, irrespective of the length of their union; and
(c)the exercise of the discretion conferred must not proceed on an assumption that the parties’ interests in property are or should be different from those determined by common law and equity.
As noted earlier, there is no evidence from the Respondent about his contributions during the period of cohabitation or his current financial circumstances. Because of his failure to engage in the process established by the Rules applicable in this jurisdiction (including his failure to comply with the ongoing obligation of disclosure imposed by the same on all parties to litigation in the Court), the Applicant has been required to attempt to gather such information about his financial circumstances as she can.
In attempting to obtain such evidence, a Notice to Admit pursuant to r 8.01 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) was sent to the Litigation Guardian on behalf of the Respondent on 25 January 2024.
The Respondent has not filed a Notice Disputing the Facts or Documents referenced in the Notice to Admit. Consequently, pursuant to r 8.02, he is to be taken to have admitted, for the purpose of these proceedings, that the facts asserted in the Notice to Admit and the documents referred to therein are true.
Reference to the Notice to Admit reveals the extent of the deemed admissions for the purpose of these proceedings.
As well as the deemed admissions, I record that I accept the Applicant’s unchallenged evidence about her contributions, about the Respondent’s conduct toward her – both during and after their cohabitation (including after they separated under the one roof in August 2020 until her departure from the former matrimonial home in about April 2021) – and the impact such conduct has had upon her – both previously and in the sense, historically, and also at present. I also accept the unchallenged evidence given by those witnesses called in her case.
I do not intend to recite all of the evidence called in the Applicant’s case or given by her. Rather, I simply note that I particularly accept the Applicant’s evidence that:
(a)she was the Respondent’s primary carer during his recovery from the accident and did all things necessary to assist with his rehabilitation and recovery;[3] and
[3] Affidavit of the wife filed 24 November 2023, paragraph 129; 186 – 189.
(b)she was primarily responsible for maintaining the household and, after the children’s respective births, was primarily responsible for their care – noting that, following the birth of the parties’ third child, she was responsible, at least initially, for meeting the needs of three children under six years of age; and
(c)she applied whatever income or money she received from either part-time work or government provided benefits to the support of the family; and
(d)during the period of cohabitation – including after the parental separation in August 2020 but prior to the physical separation in about April 2021 – the Respondent:
(i)exhibited controlling behaviour by, for example:
(A)preventing the Applicant from seeking remuneration outside of the home;[4] and
[4] Affidavit of the wife filed 24 November 2023, paragraphs 31 – 36.
(B)dictating what she should wear;[5] and
[5] Affidavit of the wife filed 24 November 2023, paragraphs 30, 59 – 60.
(C)locking her passport in a safe and not providing her with the code;[6] and
[6] Affidavit of the wife filed 24 November 2023, paragraph 95.
(ii)perpetrated physical violence against her including, for example:
(A)accusing her of cheating and then bashing her;[7] and
[7] Affidavit of the wife filed 24 November 2023, paragraphs 38 – 39.
(B)in 2004, after she told him she was leaving him, beat her up and threw her belongings over the balcony;[8]
[8] Affidavit of the wife filed 24 November 2023, paragraph 51.
(iii)perpetrated sexual violence against her including:
(A)checking her genital area when she arrived home from work and accusing her of being intimate with someone else;[9] and
[9] Affidavit of the wife filed 24 November 2023, paragraph 38.
(B)forcing her to have sexual relations in a manner she did not want to engage in;[10] and
[10] Affidavit of the wife filed 24 November 2023, paragraph 44.
(C)threatening to urinate on her;
(iv)perpetrated emotional and psychological abuse against her including, for example:
(A)constantly accusing her of cheating;[11] and
(B)threatening to take his own life on the occasions she left, on the basis that he would action such threat if she did not return to him;[12] and
(C)degrading her verbally, including in front of the children and others;[13] and
(D)directing her, on occasion, to get on her hands and knees in front of him, and spitting on her;[14] and
(E)isolating her from family and friends.[15]
[11] Affidavit of the wife filed 24 November 2023, paragraphs 25, 27, 30, 38, 64.
[12] Affidavit of the wife filed 24 November 2023, paragraphs 53, 55.
[13] Affidavit of the wife filed 24 November 2023, paragraphs 26, 63, 65.
[14] Affidavit of the wife filed 24 November 2023, paragraph 65.
[15] Affidavit of the wife filed 24 November 2023, paragraphs 35, 58.
I am satisfied that the Applicant’s pre-separation contributions of whatever nature, be they as parent and/or as homemaker, were made significantly more arduous[16] by the Respondent’s course of violent conduct toward her.
[16] Kennon v Kennon (1997) FLC 92-757.
I accept that, following the receipt in about 2009 or 2010 of the damages awarded to him consequent upon the accident he suffered in 2006, the Respondent was responsible for the financial support of the family – that is, I accept that these funds supported the family financially following their receipt until the separation of the parties under the one roof in August 2020.
The respective contributions from separation in August 2020 until trial
Since the physical separation in about April 2021, the parents have, it seems, shared the care of the children in a roughly week-about parenting regime.[17] During that time, it seems likely that each parent undertakes responsibility for the costs associated with caring for the children.
[17] Affidavit of the wife filed 24 November 2023, paragraph 211.
However, I also accept the Applicant’s evidence to the effect that she has paid, or caused to be paid, the children’s schooling fees, the costs of school camps, the costs of their uniforms and shoes, as well as meeting the costs associated with them having the use of school iPads and a school resource scheme.[18] I note that the Applicant’s evidence included the acceptance that the Respondent has paid for Y to do sport.[19]
[18] Affidavit of the wife filed 24 November 2023, paragraph 219.
[19] Affidavit of the wife filed 24 November 2023, paragraph 220.
I accept that the Applicant’s contributions as a parent and homemaker to the children following the separation of the parents were made significantly more arduous[20] by the Respondent’s course of conduct towards her, about which she has given evidence.
[20] Kennon v Kennon (1997) FLC 92-757.
In particular, I also accept the Applicant’s evidence to the effect that:
(a)in late 2020, the Respondent sexually assaulted her;[21] and
(b)in early 2021, the Respondent grabbed her phone and threw it across the garage because she was trying to record him shouting at her;[22] and
(c)on about 19 April 2021, the Respondent wrote a letter to the Applicant demanding that she attend for mental health treatment in consultation with him, and threatened to take action against her;[23] and
(d)in early 2021, the Applicant made contact with police after the Respondent had snatched a phone from her and engaged in a scuffle with her.[24]
[21] Affidavit of the wife filed 24 November 2023, paragraph 50.
[22] Affidavit of the wife filed 24 November 2023, paragraph 95.
[23] Affidavit of the wife filed 24 November 2023, paragraph 95; Annexure 5.
[24] Affidavit of the wife filed 24 November 2023, paragraph 96.
I accept the Applicant’s evidence to the effect that the Respondent has, on occasion: told her that she was a bad parent, and made such comment in front of their children; threatened to take her to Court in relation to parenting matters; accused her of trying to take the family home from him and has asserted that, as a consequence, the children will have nowhere to stay.[25]
[25] Affidavit of the wife filed 24 November 2023, paragraph 106.
I accept that, between early 2021 and mid-2023, a number of protection orders (including a number of temporary protection orders) have been made and that the Applicant was the aggrieved in the same, and the Respondent was the respondent to the same.[26]
[26] Affidavit of the wife filed 24 November 2023, paragraphs 94, 99, 100 and 103.
I also accept that there is in place a current final protection order, which will remain in force for a number of years.
I am satisfied that the Applicant’s post-separation parenting and homemaker contributions have been made significantly more arduous[27] by the Respondent’s course of violent conduct directed toward her.
[27] Kennon v Kennon (1997) FLC 92-757.
Conclusions as to contributions: s 79(4)(a)-(c) of the Act
In assessing the contributions made by the parties, the Court embarks upon a process involving the exercise of a broad discretion in respect of which reasonable minds may differ. Whilst this process is neither an accounting or mathematical exercise, it involves a movement from “a qualitative evaluation of contributions to a quantitative reflection of such a valuation” – that is, it involves a “leap” from words to figures.
I consider that, whilst the Respondent made all of the financial contributions to the acquisition, conservation and improvement of the Town D property (to the extent that there was any improvement), the Applicant made the overwhelming contribution to the welfare of the family and in the capacity of homemaker and parent during the cohabitation and after separation until she left the former matrimonial home in about April 2021 – such contribution must be assessed appropriately and not in only a “merely token way”.[28]
[28] Mallet and Mallet (1984) 156 CLR 605.
To the extent that the Respondent made any direct financial contribution to the conservation or preservation and retention of the Town D property after about April or May 2021, it should not be forgotten that he alone had the very significant financial benefit of living in that property without the requirement of making, for example, mortgage repayments, whilst the Applicant had to accommodate herself – initially via staying with friends and, later, by returning to live with her parents, where she remains resident.
I take into account the contributions made by the parties as mentioned, and that those made by the Applicant were made significantly more onerous as a consequence of the Respondent’s course of abusive conduct toward her and I conclude that a quantification of contributions to trial as to 40 per cent to the Applicant and 60 per cent to the Respondent reflects such contributions.
On the basis of the kerbside valuation of the Town D property, the assessment of contributions in this manner would result in a disparity in the parties’ respective financial positions vis-à-vis the Town D property in favour of the Respondent in an amount of about $180,000 – which I consider appropriately reflects his financial contributions which enabled the acquisition of the Town D property without encumbrance and which provided the means by which the family unit was financially supported until about the August 2020 separation.
None of the orders proposed will have any effect on the earning capacity of either party.
The relevant s 75(2) matters and conclusions about the same
As already noted, both of the parties will be 38 years of age this year.
The Applicant currently receives a government pension and family tax benefit in an amount of approximately $735 per week.[29] As noted, she currently lives with her parents and, when possible, pays approximately $300 per week in board to them for the costs associated with such residence.[30]
[29] Affidavit of the wife filed 24 November 2023, paragraph 196.
[30] Affidavit of the wife filed 24 November 2023, paragraph 197.
The Applicant’s evidence includes expressions of reservation about whether she will be able to re-enter the workforce as a result of her current mental health, and her relatively limited experience and skills working for remuneration outside the home.[31] The evidence is to the effect that the Applicant has a certificate and worked in that area prior to 2006. She holds a certificate in another industry but, it seems, has never worked in that industry.
[31] Affidavit of the wife filed 24 November 2023, paragraph 204.
I accept that, whilst the Applicant re-entered the workforce by establishing a small business in 2021, she was unable to sustain that work, and was certified as unfit for work by her general medical practitioner.[32]
[32] Affidavit of the wife filed 24 November 2023, paragraph 200-204.
A more recent report prepared by Dr E, a psychiatrist upon whom the Applicant has attended twice, contains that expert’s opinion that, as at about December 2023, the Applicant:
(a)continues to exhibit significant depression and anxiety symptoms; and
(b)continues to manifest symptoms suggestive of a trauma response consequent upon what I have accepted was the Respondent’s conduct toward her during their cohabitation and until, in particular, about April or May 2021 when she left the Town D property; and
(c)is not fit, currently, to work in any capacity.
I accept Dr E’s opinion.
The evidence is also to the effect that the Applicant has a history of a mental illness and has been admitted into treatment facilities on a number of occasions as a consequence of suffering from that illness.[33]
[33] Affidavit of the wife filed 24 November 2023, paragraph 84–89.
I note also that the Applicant has a number of outstanding liabilities. The evidence suggests that:
(a)she currently owes about $3,581 in relation to the motor vehicle that has been written off; and
(b)she owes her mother a little over $94,000 – being funds which have been loaned to her and used to meet her legal costs and costs of disbursements associated with these proceedings; and
(c)she currently owes, in relation to work in progress, her legal representatives an amount of, I think, about $53,000 in total.
Consequently, the Applicant’s total liabilities are in an amount of approximately $150,000.
As noted earlier, the Respondent suffered a significant injury during an accident in 2006. That incident resulted in him receiving a payment of damages in about 2009. Beyond that, there is no evidence before the Court about his current financial circumstances.
The Applicant has asserted that, despite his injuries (as recognised by what I regard as a reasonably significant damages payout – particularly given that the same was paid in about 2009/2010), the Respondent is able-bodied, is able to work[34] and has been undertaking trade work for a friend of his.[35]
[34] Affidavit of the wife filed 24 November 2023, paragraph 143.
[35] Affidavit of the wife filed 24 November 2023, paragraph 198.
The Applicant’s best efforts via subpoenaing the Respondent’s bank accounts from J Bank reveal deposits made, at least ostensibly, by a person by the name of Mr K into the Respondent’s bank account in the period between mid-2022 and late 2023 in a total amount of about $20,817. The Applicant’s case is that these payments represent payment for work done.
Because of the Respondent’s failure to participate fully in the proceedings and to discharge his obligation to disclose in the manner required by the Rules, there is nothing further by way of evidence to substantiate the assertion that the deposits into the bank account represent payments of wages for work undertaken.
However, given the Respondent’s failure to comply with the obligations to disclose cast upon him by the Rules and his failure to provide evidence as required by Directions made at varying times during the course of these proceedings, I consider it open to the Court to infer[36] that the Respondent has had available to him a fairly regular source of funds which, over approximately 16 months, have totalled a little over $20,000.
[36] Weir & Weir (1992) 16 Fam LR 154.
Conclusions as to s 75(2) factors
My conclusions as to the respective contributions of the parties will result in a 20 per cent differential between them: the Respondent will receive property entitlements valued at approximately $180,000 more than the property received by the Applicant (again, taking that figure from the approximate value provided by the kerbside valuation of the Town D property).
Given the matters considered pursuant to s 75(2) of the Act, I am not satisfied that such an outcome would be just and equitable. Rather, I accept the submissions made on behalf of the Applicant that an adjustment in her favour is required to ensure a just and equitable outcome. Having regard to the contents of the Case Outline filed on behalf of the Applicant and the submissions made orally by Counsel who appeared for her at the trial yesterday in support of such an adjustment, I consider that it is appropriate that an adjustment of five per cent be made in the Applicant’s favour.
I arrive at this conclusion fully cognisant of the fact that there is no evidence before the Court about whether there is any impact on the Respondent’s future income earning capacity consequent upon the injury suffered in the 2006 accident, and also noting the quantum of the damages payment associated with that accident.
What orders are just, equitable and proper
The consequence of the conclusions outlined above is that, at the conclusion of a cohabitation of approximately 18 years duration (albeit impeded, on occasion, by separations of some periods of time, which were, I think, more likely than not, consequent upon the Respondent’s abusive conduct towards the Applicant) that was productive of three children who are now aged 14, 10 and nearly nine years of age and having regard to the parties’ respective contributions to trial and the relevant s 75(2) matters, the Applicant shall be entitled to receive property valued at 45 per cent of the net value of the Town D property, whilst the Respondent shall be entitled to receive property valued at 55 per cent of the net value of the Town D property – that is, on the basis of the kerbside valuation of the Town D property (noting that the figure which follows does not take into account the costs of sale in the event that the sale of that property is necessary) the Applicant will receive $405,000 and the Respondent shall receive $495,000.
Each party will otherwise retain that property currently in their respective possession and each will remain responsible for whatever liabilities each have incurred in their own names.
Whilst it appears unlikely that he will be able to cause the Applicant to be paid the amount of $405,000 within 30 days without the sale of the Town D property, the Respondent will be afforded the opportunity to make such a payment. He will be accorded 30 days to pay the amount of $405,000 (being 45 per cent of the $900,000 valuation accorded to the Town D property by the kerbside valuation). If the Respondent cannot make this payment within 30 days of the date of the order, the Town D property will have to be sold.
Given that the Town D property is the only asset from which the payment required to be made by the Respondent to the Applicant can be sourced, I am satisfied that it is proper that he be restrained from encumbering the property other than as may be necessary to enable him to make the required payment to her. Given that the Respondent is the legal owner of, and continues to occupy the Town D property, I am satisfied that it is proper that he continue to ensure that it remains insured and that he continues to pay any municipal rates and water charges as they fall due.
Given the Respondent’s opposition to the valuer entering the property and his failure to engage with the processes of the Court, I think it much more likely than not that any order which required these parties to agree about matters such as the real estate agent to be used if the property has to be sold, the reserve price to be set if the property has to be sold and the price at which a contract should be signed would be futile and would almost inevitably lead to further legal costs.
Given this, and in an attempt to minimise the incurring of any future costs, I accept the submissions made by Counsel for the Applicant that the appropriate course, in the event that the Respondent fails to make the required payment to the Applicant in the time prescribed, is that the Applicant be appointed as trustee for the sale of the Town D property. I also accept, in such an event, that the balance of convenience favours orders which will require the Respondent to vacate the Town D premises and which will enable the Applicant to reside in the same pending its sale. Given the Respondent’s previous conduct, particularly in refusing to allow the valuer access to the property, I consider that that permitting him to remain living in the property, if it is to be sold, would be something that would be more likely than not to impede the process of sale – the balance of convenience, as I have said, favours the granting and making of an order to require the Respondent to vacate the premises and to enable the Applicant to take up residence in them, if she chooses, so as to facilitate the sale of the property.
For the reasons expressed today orally, I am satisfied in all the circumstances of this case that it is just and equitable that orders be made adjusting the existing interests of the parties in property and that the orders which I will sign and place with the papers – and which will ultimately be set out at the commencement of the Reasons when settled – will, as far as practicable, determine the financial relationship between the parties; they are orders which are just and equitable and appropriate to be made.
Additional things to note
I also note that, on 23 February 2022, a Senior Judicial Registrar ordered, amongst other things, that the Respondent pay the Applicant’s costs, fixed in the amount of $5,000 and that the same be paid from his share of any property settlement.
The form of the orders which I will make will reflect this earlier determination.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 13 February 2024
0
4
2