Mitchell and Mitchell (No 2)

[2019] FamCA 351

FAMILY COURT OF AUSTRALIA

MITCHELL & MITCHELL (NO. 2) [2019] FamCA 351

FAMILY LAW – PROPERTY – failure to establish that it is just and equitable to make any adjustment – undefended proceedings.

Family Law Act 1975 (Cth)

Aleksovski & Aleksovski [1996] FamCA 111
Stanford v Stanford [2012] HCA 52

APPLICANT: Mr Mitchell

RESPONDENT: Ms Mitchell

INDEPENDENT CHILDREN’S LAWYER: Ms D Garwell

FILE NUMBER: AYC 255 of 2013

DATE DELIVERED: 28 May 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 28 May 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

COUNSEL FOR THE RESPONDENT: Ms R Dart

SOLICITOR FOR THE RESPONDENT: Rama Myers Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms M Davis
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW

Orders

1. It is ordered that the Husband's Application is refused and in accordance with the Wife's Response is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mitchell & Mitchell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: AYC 255 of 2013

MR MITCHELL

Applicant

And

MS MITCHELL

Respondent

REASONS FOR JUDGMENT

1. By Initiating Application filed on 21 of July 2015 the Husband seeks division of a non-superannuation pool of the parties on a 50-50 basis.  The Wife’s response seeks the dismissal of that application. 

2. The context of the hearing is that it is being conducted on an undefended basis, for reasons which have previously been given.  In support of the course that there be a dismissal of the Husband's application the Wife says that it has not been established that it is just and equitable to make any division of property as is required by s 79(2) and emphasised in the case of Stanford[1].

   [1] [2012] HCA 52

3. There is an onus upon those seeking adjustment to establish that it is just and equitable to make any adjustment, and just and equitable to make an adjustment in a particular manner. 

4. In this case the Husband has led no evidence to establish circumstances to show that it is just and equitable to do so.  He has made no recent disclosure, has filed no affidavit, he did not file a Financial Statement despite directions requiring him to do so, he has been excluded from the proceedings in the sense of a determination being made that the property proceedings will go ahead undefended.  In that context his application, it appears, will inevitably fail. 

5. That tentative conclusion is reinforced by the Wife's material which was filed in accordance with the directions that were given.  She establishes what is the property, as best as it can reasonably be established given the Husband's non-compliance.  All disclosed property other than superannuation is in the Wife's name.  Its gross value totals $539,000.  It is comprised of a home, business premises, a business and a motor vehicle along with debts of $402,000 including two mortgages. 

6. The parties have reasonably equivalent superannuation.

7. While it is a small pool and at face value all the property is held in a one-sided manner, such an allocation does not per se speak to an adjustment as being just and equitable, as the circumstances that will speak to that. 

8. The circumstances are that the parties were in a relationship between 2001 and 2012.  They had three children.  For a period those children were in Husband's primary care, post separation.  Then they came into Wife's primary care and since 2016 have been in her sole care. 

9. At the date of separation there were no assets or property of any significance.  At the date of separation there were debts of about $37,000 which the Wife has taken on. 

10. Before separation the Wife was incapacitated for a period and hospitalised.  As a result of that the Wife sued and after the date of separation received a payment in compensation for her treatment.  Post separation that settlement was received as the matter was settled for $1.3 million with the Wife receiving approximately $750,000.  This, following the authority I was directed to by counsel for the Wife the authority of Aleksovski[2], can be taken to be as a contribution by the Wife.  She has put it to her and the children’s support, towards developing an income stream by the establishment of her business and establishing a home for herself and the children.  This contribution vastly outstrips any other and directly resulted in the Wife's current property position.

    [2] [1996] FamCA111

11. Even if an assumption was made that by virtue of the Wife's illness during the relationship the Husband's contributions then outstripped hers she has had the primary, and then the sole, care of the children since the relationship ended.  Assuming without accepting it, and assuming it for the purposes of argument, as has been asserted by the Husband in his submissions about whether the proceeding should go ahead undefended that he is unemployed, the Wife's future financial prospects appear rosier than his, although not to a degree that could or should be guessed at given the Husband's lack of evidence.  She, given the lengthy period of a lack of child support to date may be expected to bear the financial load of the children without assistance into the future.  These matters offset the other matters that might have otherwise favoured that Husband, or at least they cannot be said not to offset them.

12. Even in the context of the end of their cooperation together financially during their marriage, an examination of the s 79 and s 75 matters do not point to the appropriateness of an adjustment being made.  Given then the failure of the Husband to establish that an adjustment would be just and equitable and given that on the Wife's material it should not be taken to be just and equitable the threshold of s 79 is not crossed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 28 May 2019.

Associate:

Date:  31 May 2019