Nicholl and Ingram

[2016] FCCA 1412

FEDERAL CIRCUIT COURT OF AUSTRALIA

NICHOLL & INGRAM [2016] FCCA 1412

Catchwords:
FAMILY LAW − Property orders made without the husband served − whether orders should be set aside or varied pursuant to s.79A Family Law Act1975 (Cth) − whether any different orders should be made following hearing.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79A, 106A(1)

Applicant: MR NICHOLL

Respondent: MS INGRAM

File Number:	DGC 2134 of 2013
Judgment of:	Judge Phipps

Hearing date: 16 February 2016

Date of Last Submission: 16 February 2016

Delivered at: Dandenong

Delivered on: 10 June 2016

REPRESENTATION

The Applicant: Appearing on their own behalf

The Respondent:  Appearing on their own behalf

Solicitors for the
Independent Children’s Lawyer: Ms Christides

Solicitors for the
Independent Children’s Lawyer: Taft Lawyers

ORDERS

1. That the order made on 9 December 2013 in the Federal Circuit Court of Australia at Dandenong (“the 9 December order”) is varied as follows:

   a)Paragraph 8 is discharged; and

   b)The husband sign all documents and do all things necessary to remove the caveat lodged in his name over the real property known as and situate at Property S, being the land in certificate of title Volume (omitted) Folio (omitted).

2. That pursuant to s.106A(1) of the Family Law Act 1975 (Cth) a Registrar of the Federal Circuit Court of Australia at Dandenong is appointed to do all acts and things necessary to give validity to any documents the husband is required to execute by these orders.

3. Otherwise the 9 December 2013 order remains in full force and effect.  

IT IS NOTED that publication of this judgment under the pseudonym Nicholl & Ingram is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2134 of 2013

MR NICHOLL

Applicant

And

MS INGRAM

Respondent

REASONS FOR JUDGMENT

1. The proceedings concern both property and children.  This final hearing concerns only property.

2. The children are X born (omitted) 2008 and X born (omitted) 2010.  They live with the respondent wife.  An order of 16 February 2016 provides for them to spend supervised time with the father at a Children’s Contact centre.  The children’s orders are adjourned for mention on 22 September 2016.

3. Procedurally, the situation is unusual.  The wife filed an Initiating Application on 2 August 2013 seeking both children’s and property orders.  The parties separated on 4 April 2011 and in her supporting affidavit the wife deposed to last seeing the respondent on 31 July 2012 in the Magistrates Court of Victoria at Dandenong.  This was the date of the hearing of the wife’s application for a Family Violence Intervention Order against the husband.  She said the husband made a phone call to her on 28 August 2012.  She had no knowledge of his whereabouts.

4. The father was assessed for child-support and I ordered that the Initiating Application and supporting material be posted to the Registrar of the Child Support Agency with a request that they be posted to the husband at the address known to the Child Support Agency.  Correspondence from the Child Support Agency said that the documents had been posted to the husband’s address with the Child Support Agency and a subsequent letter advised that the documents had been returned as unclaimed mail and enclosed the unclaimed mail.

5. The mother’s affidavit in support of her Initiating Application alleged a pattern of violence towards her and the children.  It showed that, apart from a motor vehicle and small amounts in bank accounts, the only asset was the former matrimonial home at Property S, Certificate of Title Volume (omitted) Folio (omitted).  She alleged that the husband had taken her Audi motor vehicle, sold it and kept the proceeds.

6. On 9 December 2013 I ordered that all requirements of service be dispensed with that the mother have sole parental responsibility for the children, that the children live with the mother and that the children’s time and communication with the husband was reserved.  In addition, I made an order which permitted the wife to obtain passports for the children without the permission of the father.  For property, I ordered:

   a)That the husband forthwith do all acts and things and sign all necessary documents (“the Transfer Documents”) to transfer to the wife all his right title and interest in the real property at Property S, being the land in certificate of title Volume (omitted) Folio (omitted);

   b)That pursuant to s.106A(1) of the Family Law Act 1975 (Cth) a Registrar of the Federal Circuit Court of Australia at Dandenong is appointed to do all acts and things necessary to give validity to any documents the husband is required to execute by these orders: and

   c)That the husband forthwith pay to the wife the proceeds of the sale of the Audi motor vehicle, Registration Number (omitted).

7. On 24 January 2014 the husband filed an application for divorce.  On 27 February 2014 the wife filed an affidavit in which she applied to have a registrar sign the Transfer of Land.  This was done.

8. The wife was served with the divorce application on 5 March 2014 and the divorce order was made on 19 March 2014 and became effective one month later.

9. The husband filed an Initiating Application on 18 November 2014 applying for orders setting aside the order of 9 December 2013 pursuant to s.79A of the Family Law Act1975 (Cth) and the making of another order under s.79.

10. The husband’s affidavit in support says he only learnt of the earlier order during July 2014 when staff at (omitted) Bank informed him the family house was no longer in his name.  He did not receive any court documents.  This is correct.  He said he had not been in contact with the wife since 31 July 2012 when the wife obtained a Family Violence Intervention order against him.

11. Section 79A(1) provides, relevant to this case:

    (1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:

    (a)  there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;

    ………

    the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

12. The husband was not served with the original proceedings and had no knowledge of them.  The former matrimonial home was in joint names and he is a person affected by that order.  There has been a miscarriage of justice by reason of any other circumstance, in this case the husband’s lack of knowledge of the proceeding.

13. The wife opposes the setting aside of the order.

14. The order made 9 December 2013 is for both children and property.  When the husband’s Initiating Application first came before me, I made an order that the children be separately represented and made an order for a Conciliation Conference and adjourned the Application to 22 May 2015.

15. On 22 May 2015 I fixed the property matters for final hearing in February 2016 and made interim parenting orders by consent of the parties and the Independent Children’s Lawyer for the children to spend time with the father at a Children’s Contact Centre.

16. By 16 February 2016 the children had not spent any time with the father and a more specific order was made.  The property application proceeded.

17. Both parties were unrepresented at the hearing of the property application.  The wife had filed a response to the husband’s application, a financial statement and an affidavit.  The husband had filed his initial affidavit and although on 22 May 2015 I made an order for him to file an amended initiating application and a further affidavit relating to children’s matters he had not done so.

18. The wife’s proposal is that the husband’s application be dismissed so that the order made 9 December 2013 would remain and she would remain as the sole owner of the former matrimonial home.  The husband’s proposal was difficult to discover.  He said he wanted money kept for the children.  I explained to him that that was not how the law in relation to matrimonial property worked.  In the end he said he wanted an amount which was fair.

19. Determining whether the order made 9 December 2013 should be set aside or varied requires consideration of the matters relevant to s.79 of the Family Law Act 1975 (Cth), the section dealing with settlement orders concerning matrimonial property.

20. The first requirement is whether it is just and equitable to make an order. In this case the parties are in a married relationship and the circumstances in which they shared their finances have come to an end.  That means it is just and equitable to make an order.

21. The next two steps are to consider the parties contributions taking into account the matters in s.79(4) and then whether any adjustment should be made for the s.75(2) factors.

22. The husband was born on (omitted) 1979 and is aged 36 years.  The wife was born on (omitted) 1973 and is aged 43 years.  The two children referred to above were born on (omitted) 2008 and (omitted) 2010 and are aged seven and six respectively.  They live with the wife.  The wife has two other children from a previous marriage born on (omitted) 1995 and (omitted) 1997.  They are 20 and 18.

23. The parties first met according to the wife in (omitted) 2007 and according to the husband in 2004 or 2005.  The wife lived in Tasmania, Australia and the husband in (country omitted).  They commenced living together on (omitted) 2009 and married on (omitted) 2009 and separated on 4 April 2011.

24. The wife says that prior to the husband coming to Australia she sent him a minimum of $200 per month, although often more than $200 per month.  The husband says he worked as a (occupation omitted) in (country omitted).  He says each year the wife would visit for a couple of times a year for two or three months.  He says he would give her money to pay her mortgage for her house in Tasmania.  He says when the parties met he owned a house in (country omitted) worth $40,000 with no mortgage and land in (country omitted) worth $60,000 with no mortgage.  He said he sold the land in (country omitted) and gave the wife up to $35,000 for payment of the mortgage on her home in Tasmania.

25. He says that in June 2006 he sold his house.  He says the wife and he got engaged in (country omitted) and he paid for an engagement party in (country omitted) with about $25,000 and gave the wife about $18,000 in gold made in (country omitted).  He says he assisted the wife’s mother in (country omitted) and would pay the wife $350 to assist her mother.  He says that the wife’s mother had a heart operation and he paid about $7,000 for her heart operation.

26. The wife says she first met the husband in person on (omitted) 2007 in (country omitted).  Prior to that they communicated by telephone and exchanged photographs after being introduced by an (nationality omitted) family based in Tasmania in late 2006.  She says that at that time when introduced the husband lived in (country omitted).

27. She says she travelled infrequently to (country omitted) and denies the husband’s allegation of more frequent travel.  She says that about two or three months into their communication, the husband requested that she marry him but she refused on the basis they did not see each other.  She asked to visit him in (country omitted) but instead he asked her to visit him in (country omitted).  She says she and the husband only commenced a serious relationship on (omitted) 2007.

28. She denies that the husband owned any property.  She says that during her conversations prior to the meeting in (country omitted) the husband told her at various times he did not own any property.  She says she sent him a minimum of $200 a month and approximately $700 for his flight to (country omitted) from (country omitted).  She said she allowed him to live rent-free in her mother’s apartment in (country omitted) for nearly a year in 2008 prior to his arrival in Australia.

29. She says the applicant never worked as a (occupation omitted) in (country omitted).  She says prior to first meeting the applicant in (omitted) 2007 the mortgage over her house in Tasmania had been paid.  She says the applicant did not give her gifts of gold at any point and that her mother never underwent any heart operations.  Her mother died of breast cancer at the beginning of 2009 and the applicant did not in any way financially contribute to the mother’s health care.

30. The husband alleges the wife was unemployed when they met.  She says she had been working consistently since 2000.

31. At the time the parties met the wife worked full time as an (occupation omitted).  She owned a property in Tasmania, which she says was valued at $156,000.  She owned a motor vehicle valued at approximately $2,000 and she had white goods and furniture which she said had a value of approximately $8,000.  She says that when the husband arrived in Australia his only possessions were his clothes, something the husband does not dispute.

32. The husband worked as a (occupation omitted) when he first came to Australia.  The wife says that she loaned him $5,000 to purchase equipment and that he worked for five months in 2009 and one month in 2011 earning between $100 and $150 per day.  He says he worked six days a week earning $200 per day.

33. The husband broke his shoulder in December 2009.  He received $20,000 in compensation as a victim of crime.  He says he paid the money towards the family’s expenses and mortgage.  The wife says she was unaware of the $20,000 in compensation until she read the husband’s affidavit in November 2015.

34. The husband has not worked since he received the broken shoulder, except for the brief period in 2009.  His income is Social Security payments from Centrelink.

35. In September 2009, the parties purchased the former matrimonial home at Property S, Victoria.  The purchase price was $360,000.  The wife sold her house in Tasmania for $156,000.  $113,000 went towards the Property S property purchase and the balance paid off a personal loan that the mother took out to pay for her mother’s breast cancer treatments and other associated medical bills.  A mortgage with a limit of $400,000 was taken out over the Property S home.

36. The husband alleges he contributed to household expenses.  The wife denies that.  She said he used money to buy items for himself and restricted the family’s access to those items.  The husband said he rendered the front of the house which has a value of $5,000.  The wife denies this.  She says he attempted to help her and her son to paint the front of the house but the husband did not complete the task.  She paid for the paint and equipment.

37. The husband alleges he assisted with household chores, the wife denies this.  She said when he was unemployed the husband largely spent his days before the television or sleeping.

38. During the relationship the parties purchased an Audi motor vehicle using $20,000 drawn from the mortgage on the matrimonial home.  This vehicle was sold following separation.  The husband alleges the wife kept the proceeds.  The wife alleges the husband kept the proceeds.

39. The husband alleges that the wife has retained his Mazda work motor vehicle.  The wife says this was purchased in July 2010 for $9,000 using leftover proceeds from the sale of her house in Tasmania.  She said it was sold in 2012.  After spending $2,000 to carry out repairs, it sold for $4,000 due to its poor working condition.

40. From the commencement of the relationship until two weeks before the birth of the parties’ first child, the wife worked full time as an (occupation omitted).  She returned to work part-time two months after the child’s birth.

41. The wife is leasing the former matrimonial home and is living in rented accommodation.  She gives her income as approximately $1,553.25 per week consisting of:

    a)Approximately $358 per week from her occupation as an (occupation omitted);

    b)Approximately $385 per week from leasing the matrimonial home at Property S.  She says this is paid directly into the mortgage account;

    c)Approximately $792 in government benefits; and

    d)Approximately $18.25 in Child Support.

42. The wife says the respondent commenced paying child support on 7 April 2012 and that he currently pays $8.50 per week.  Her ex-husband from a previous marriage commenced paying child support on 18 April 2000 and currently pays $10 per week.

43. The husband’s income appears to be Centrelink benefits.  His financial statement is largely blank and his one affidavit does not refer to his income except that he is on Centrelink benefits.  He says he is suffering depression and he is very forgetful.

44. Both parties were unrepresented at the hearing.  The husband did not cross examine the wife.  The wife cross examined the husband.

45. The wife in cross examination put to the husband that he did not own property in (country omitted).  The husband said that the properties came from his father.  He said he sold them to a cousin.  He had no documents and the whole explanation was rather confused.

46. The wife alleges that the husband gambled and went to (omitted) Casino.  The husband denied that he gambled.  The wife produced the husband’s bank account statements which the husband acknowledged were his and showed withdrawals at (omitted) casino and in the vicinity of (omitted) Casino.  It showed a withdrawal at (omitted) Casino and two debits one for $100 and one for $50 for (omitted) Lotto.  The bank accounts are in 2011 and 2012.  The wife produced documents which made the husband a member of (omitted) Club and letters to the husband from the host manager of (omitted) Club.

47. The husband acknowledged he had been to (omitted) Casino many times but he said not to gamble.  He said he went there for the shopping centre and restaurants.

48. He acknowledged he was a member of the (omitted) Club but said he did that because you can park free.

49. The wife cross-examined about the $20,000 he received in Crimes Compensation.  He claimed he gave the money to the wife when she asked for the mortgage and he referred specifically to amounts of $5,000 and $2,000.

50. The husband acknowledges that he took the Audi motor vehicle when the parties separated and that he sold it.  He said the money went to the mortgage.

51. The wife alleges that the husband withdrew $800 from the parties’ joint account, thus increasing the mortgage.  The husband denies that is the case.

52. The husband’s first language is not English.  His evidence was given in English.  Although he obviously understood the questions and answered them, some of the apparently disjointed answers may have been due to his poor English.  Notwithstanding that his evidence in cross examination was unsatisfactory.  In particular, his explanation for his attendance at (omitted) Casino, for the shops and restaurants, is improbable.  His financial circumstances are such that it is improbable he would purchase goods in shops in a Casino and entertainment complex.  He lived at Property S making it even more improbable that he would go to (omitted) Casino to shop.  His circumstances make it improbable that he would go to restaurants at (omitted) Casino.  His withdrawals of money are in a pattern consistent with gambling as is membership of the (omitted) Club.  Purchases at (omitted) Lotto withdrawing $100 and $50 at a time suggests someone with a significant gambling pattern.

53. The wife alleges the husband spent a substantial amount of money gambling.  The evidence does not go beyond a few thousand dollars.  The amount the husband spent on gambling is not significant.  What is significant is that it goes to his credit.  It makes all of his evidence unreliable.

54. The husband claims he owned a house and land in (country omitted).  He says he sold the land and gave the wife up to $35,000 for paying the mortgage on her Tasmanian property.  The husband then says he sold the land in (country omitted), spent $25,000 on an engagement party in (country omitted) and gave the wife about $18,000 in gold made in (country omitted).

1. The wife denies that the husband owned any property in (country omitted) when she met him.  She says that her Tasmanian property was paid off when she met the husband.  The husband arrived in Australia without assets.  He produces no documents to establish the truth of what he alleges about his property in (country omitted).  Other than saying he paid the money to the wife he does not give any detail of how that was done.  If the $35,000 was paid to the wife there must have been some documents associated with the payment or payments.  The husband produces none.

2. The same applies to the husband’s claim that he gave amounts from his Crimes Compensation payment to the wife to pay the mortgage.  He does not say how he did it and he produced no documents.

3. The wife was not cross-examined by the husband.  I take that into account.  The wife’s affidavits give a coherent description of the parties’ financial transactions.  The current mortgage balance of about $290,000 is consistent with her account.  The house in Property S was purchased for $360,000.  The wife says she used $131,000 from the proceeds of the sale of her property in Tasmania which means about a further $241,000 was needed for the purchase.  The parties obtained a mortgage with a limit of $400,000.  They used $20,000 of it for the purchase of the Audi motor vehicle.  The husband’s claims that he gave the wife substantial amounts of the $20,000 Crime Compensation payment to go towards the mortgage is not consistent with these figures.  He says he paid $25,000 for an engagement party in (country omitted) and gave her $18,000 in gold made in (country omitted).  This seems a surprising thing to do when it left him with no assets.

4. The assets are:

   a)Property S.  Neither party has obtained a professional valuation.  The wife values it at $365,000 – $385,000.  The husband says $430,000;

   b)The wife’s bank accounts totalling about $2,000;

   c)The wife’s Toyota (omitted) which she values at $6,000;

   d)The wife includes the husband’s compensation payment of $20,000 and two amounts, $800 and $1,300, which she says he withdrew from their joint bank account.  There is no evidence that the husband still has them and so they are not current assets;

   e)The wife’s superannuation $5,973.97;

   f)The husband includes his Mazda work vehicle but I accept the wife’s evidence that it has been sold; and

   g)Household goods.  The wife values household goods at $5,000.  The husband says $20,000.  There is no professional valuation.

5. The liabilities are:

   a)Mortgage over Property S, $289,083.53;

   b)The wife’s loan from Ms N, $19,000.  The wife refers to this in her affidavits and financial statement but gives no particulars of how it’s come about;

   c)The wife’s (omitted) Card, $5,497.44; and

   d)The wife’s Low Rate Visa Card, $3,597.65.

6. Section 79(4) requires the court to consider the parties financial and other contributions made directly or indirectly to the acquisition conservation or improvement of any property of the parties and the contribution made by a party to the marriage to the welfare of the family and any children of the marriage including any contribution made in the capacity of homemaker or parent.

7. At the commencement of the relationship the wife had the property in Tasmania which she estimated had a value of $156,000.  When this property was sold the net proceeds were used towards the purchase of the Property S house and family expenses.  She worked throughout the relationship, taking short periods off for the birth of each child and then resumed part-time.

8. The husband had employment for only a few months at the commencement of the relationship and since then has relied on Centrelink payments.  He received a $20,000 Crimes Compensation payment.  I accept the wife’s evidence that she does not know what happened with this money.  I do not accept the husband’s evidence that he gave substantial amounts of it to the wife to pay the mortgage.

9. The wife says that she alone was caring for the children and undertaking household tasks.  I accept that this was largely the case.

10. The wife made a contribution of $156,000 at the commencement of the relationship. Her employment history shows that she made a significantly larger financial contribution during the relationship than the husband.  She was the main child carer and homemaker.  This requires a substantial finding in her favour on contributions which I assess at 85%.

11. The next step is to consider adjustments for s.75(2) factors. If the midpoint of about $400,000 is taken for the valuation of the Property S property and the mortgage taken into account the net assets are about $110,000. If the wife’s personal loan and credit card debts are accepted as matrimonial debts the net assets are about $83,000.

12. The wife’s income, excluding rent from the Property S property, is about $1,170 per week.  She pays rent of $336.75 a week at (omitted).  The rent she receives for the Property S property goes towards paying the mortgage.

13. The wife has the sole care of the two children.  While her income exceeds that of the husband, she has the sole care and only receives minimum child support from the husband.  The position is one where the reality of the small amount of the net assets has to be considered rather than the percentage position.  The circumstances justify a finding that the wife should receive the whole of the net assets.

14. While I am satisfied there has been a miscarriage of justice because the husband did not have notice of the wife’s original application, s.79(1A) gives the court discretion to vary the order or set aside the order. Given that I am satisfied that the application of s.79 means that the whole of the matrimonial assets should be paid to the wife, the proper exercise of the discretion is not to set aside the order made on 9 December 2013.

15. The order should be varied because there is no evidence that the husband still has the proceeds of sale of the Audi motor vehicle. The probability is that given his low income he has spent the money. The order should be varied to discharge that paragraph.

16. The husband has placed a caveat over the Property S property.  The caveat must be removed.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Phipps. 

Date: 10 June 2016