Nisbett and Nisbett

[2016] FCCA 1784

FEDERAL CIRCUIT COURT OF AUSTRALIA

NISBETT & NISBETT [2016] FCCA 1784

Catchwords:
FAMILY LAW – Competing property application – wife’s application undefended – consideration of contribution – consideration of s.75(2) matters – asset pool requiring adjustment – relatively lengthy marriage period – wife seeks equal division – issue of costs payable – orders as sought by the wife.

Legislation:

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

Applicant: MS NISBETT

Respondent: MR NISBETT

File Number: MLC 866 of 2015

Judgment of: Judge Hartnett

Hearing date: 2 June 2016

Delivered at: Melbourne

Delivered on: 2 June 2016

REPRESENTATION

Counsel for the Applicant: Ms Jenkins

Solicitors for the Applicant: KG Lawyers

The Respondent: No appearance

ORDERS

1. The Respondent pay the wife the sum of $270,000 and a further sum of $4,400 being the costs of the Applicant of 1 June 2016 thrown away being a total of $274,400 (‘the payment’) on or before 1 August 2016 (‘the date’).

2. Contemporaneously with the payment the Applicant transfer to the Respondent, at the expense of the Respondent, all of her right title and interest in the property located at Property G in the State of Victoria and more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (‘the real property’).

3. The Respondent indemnify the wife against all payments and liabilities and any rates, taxes and outgoings of or with respect to the real property.

4. In the event that the payment is not made by the date:-

   (a)the Respondent vacate the real property within 24 hours of the date;

   (b)the Applicant have sole use and occupation of the real property thereafter;

   (c)the real property be transferred to the Applicant solely for the purposes of a sale of the property and the Applicant have sole conduct of the sale. The reserve price is to be $510,000 or such other sum as agreed between the parties and failing agreement as determined by the selling agent;

   (d)the Respondent be restrained thereafter from attending at or within 50 metres of the real property including any open for inspections and any auction.

5. In the event the Respondent fails to comply with order number 4 (a) herein then a warrant of possession issue to remove the Respondent forthwith from the real property. There be a stay of execution of the warrant until 3 August 2016. There be liberty to the Applicant to apply with respect to the issue of the warrant and/or its execution.

6. Upon completion of the sale of the real property, the proceeds be applied as follows:-

   (a)to discharge all encumbrances including any charge placed over the real property by the Respondents former solicitors;

   (b)to pay all costs and commissions of the sale;

   (c)to pay the Applicant so much of the payment as is then outstanding together with interest at a rate of 10 percent per annum adjusted monthly from the date;

   (d)further sums to the Applicant as follows:-

   (i)all costs incurred by the Applicant to effect the sale and to ensure any damage is repaired subject to the provision of invoices for this work;

   (ii)any rates required to be paid by the Applicant;

   (e)Finally the balance to the Respondent save that in the event the property sells for greater than $510,000 any profit above that amount of $510,000 be divided equally between the parties.

7. Unless otherwise specified in this agreement and save for the purposes of enforcing any monies due under this agreement:-

   (a)each party be solely entitled to the exclusion of the other all property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;

   (b)each party be solely entitled to the exclusion of the other to their superannuation entitlements;

   (c)monies standing to the credit of the parties in any bank account remains the property of the account holder;

   (d)insurance policies remain the sole property of the owner named thereon;

   (e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

   (f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

8. In the event that either party refuses or neglects to execute a deed and/or instrument in compliance with these orders, the Registrar of the Federal Circuit Court of Australia at Melbourne is hereby appointed pursuant to s.106A of the Family Law Act 1975 (Cth) to execute all deeds and/or instruments in the name of the husband or wife and do all acts and things to give viability and operation to the deeds and/or instruments.

9. The Respondent pay the Applicant’s costs of the proceedings in part from the time of the making of the Applicant’s written offer of 25 August 2015. Such costs are fixed in the sum of $10,000 and are to be paid out of the share of the Respondent’s entitlement to the proceeds of sale of the real property prior to the Respondent’s receipt of any funds.

THE COURT DIRECTS THAT:

1. The Minute of Proposed Orders, dated 27 May 2016 and marked ‘Exhibit A’ remain upon the Court file.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 866 of 2015

MS NISBETT

Applicant

And

MR NISBETT

Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. The Applicant filed her application on 9 February 2015.  The Applicant indicated at the commencement of the final hearing this day that the orders she now sought (at trial) differed from those as set out in her initiating application. Essentially, she now sought an equal division of the parties’ assets as between the parties.  The orders which she sought, more precisely, had been confirmed in correspondence (of 27 May 2016) from her Solicitor to the Respondent. That correspondence was tendered in evidence and I shall commence with it because these proceedings have been heard on an undefended basis, the Respondent failing to attend on the final hearing of the matter.

2. This proceeding was listed for final hearing on 1 June 2016 in the Geelong circuit sittings of the Court.  Prior to that date, the Solicitors acting for the Respondent had ceased to act for him and filed a notice of so ceasing to act.  From the time of that notice, on 10 May 2016, the Respondent appeared before the Court as a litigant in person.  Mindful of that, the Solicitors for the wife wrote to the husband at his residential address, being the former matrimonial home situate at Property G in the State of Victoria and stated, relevantly, as follows:-

   “Dear sir:

   I refer to the above matter and note that it is listed for a Final Court Hearing before Judge Hartnett at Geelong on the 1^st June 2016 at 10:00am. We have received Notice that Roger O’Halloran & Co have ceased acting for you and you are currently unrepresented.

   If you do not attend the hearing, of which you have had ample notice, we will be proceeding on an undefended basis and seeking that Orders be made by the Court without you being present.

   The orders we will be seeking are as attached.”

   The Court notes that the proposed final orders proposed at that time were attached and provided to the husband. The husband has been afforded procedural fairness in respect thereto.

3. The husband attended Court in person on 1 June 2016.  The matter was stood down and the husband was advised that the matter would not proceed immediately, but that the matter was simply stood down.  Counsel for the wife indicated to the husband that he should not leave the building.  When the matter was later called, the husband did not answer the call and appeared to have left the building.  Counsel for the wife attempted to contact the husband by telephone on his mobile telephone number but there was no response to the two calls made by counsel. The Court attempted to contact the husband by his mobile telephone number in the afternoon when the proceedings were commencing and again there was no response by the husband.  Because the husband had presented to the Court in the morning and failed to appear when the matter was later called, the Court made an order as follows:-

   “1. The Applicant’s Solicitor send a text message to the Respondent on (omitted) advising that the competing property applications of the parties are listed before the Court at 10:00am on 2 June 2016. In the event the Respondent fails to attend at 10:00am in the courtroom of the Federal Circuit Court at Geelong then the Applicant’s application will proceed on an undefended basis. Any costs thrown away this day by the Respondent’s departure from the Court sittings may be ordered to the paid by the Respondent to the Applicant, in the absence of any reasonable explanation by the Respondent given on 2 June 2016.

   2. Otherwise all extant applications are adjourned to the Geelong circuit sittings of the Federal Circuit Court commencing on 2 June 2016 for final hearing.”

4. This day, the husband was called outside the Courtroom and failed to answer the call.  The Respondent was telephoned by Counsel for the wife and telephoned by the Court and failed to respond to those calls.  The Court is satisfied that the Applicant’s Solicitor complied with the order made on 1 June 2016. Mr Griffin gave evidence in the witness box as to his compliance with that order. The husband not attending to participate in the proceedings, the matter proceeded undefended.

5. I note the husband filed a response to the initiating application on 21 April 2015, wherein he sought various orders. The husband is not present to prosecute his application and accordingly that application will be dismissed.  The husband, in submissions on 1 June 2016, said to the Court that he required the former matrimonial home at Property G, in the State of Victoria to be retained solely by him, which was consistent with his application as contained in his response document and that the wife should receive, by way of property orders, none of the parties’ assets. Further he submitted that the wife’s entitlement to any property settlement or orders was non-existent.  The husband was quite forceful in his submissions and made it very clear that he would not cooperate in any way with orders which might provide for a property adjustment to the wife.

6. The wife relied in these proceedings on affidavit evidence sworn by her on 30 January 2015 and 5 August 2015. She also relied on a financial statement sworn by her on 25 May 2016. The wife additionally placed before the Court an affidavit sworn by Mr N on 5 August 2015. The husband filed only one affidavit in the proceedings, that being sworn by him on 16 April 2015 and filed 21 April 2015.  I shall refer to the contents of that affidavit in part in the reasons which follow.

History

1. The husband was born on (omitted) 1960 and he is now aged 55 years.  The wife was born on (omitted) 1961 and she is now aged 54 years.  The wife is in good health.  The husband claimed in his affidavit evidence at paragraph 25, that he is permanently disabled due to spinal and knee injuries and psychological trauma.

2. The husband has been in receipt of a disability support pension since at least 25 August 1994. The wife is working as an (occupation omitted) on a part time basis and has a second job which is government funded, working for (employer omitted). The wife’s income receipt from her two jobs was $593 each week but has recently declined for the reasons set out hereafter.  The husband’s affidavit evidence was that he had completed a (omitted) course and performed (employment omitted) sporadically and as a hobby only.  His evidence was also that he had done some (omitted) and (omitted) work since 1994.  The husband was not available to be cross-examined about his employment activities, either past or present. Correspondence tendered in evidence in the proceedings from the Solicitors of the wife to the Solicitors for the husband of 23 February 2016 said  relevantly:-

   “Please see attached copy ABN Lookup indicating that your client has recently revived his ABN. Please provide details of your client’s employment and income.”

3. The husband’s ABN (omitted) was reactivated from 29 September 2015, as an individual sole trader not currently registered for GST.  His main business location was said to be Victoria (omitted). No response was received to the correspondence of the wife’s Solicitors as to the husband’s income receipt. The husband failed to put before the Court any relevant details concerning his current employment and income from that employment. The wife confirmed in her evidence that the husband appears to be employed as a (omitted) and in receipt of regular income in relation thereto.

4. The parties commenced their relationship in 1992 and on (omitted) 1992 they married in (country omitted). The wife at the time was happily settled in her life in (country omitted) with her family around her for support. She had a well paying and stable job. The husband was receiving minimal funds from a WorkCover payment in Australia. Following the wedding, the husband returned to Australia.  The wife flew to Australia in (omitted) 1993 and the parties were married in Australia on (omitted) 1993.  The wife’s sister paid for the wife’s flight to Australia. 

Contribution

1. When the parties commenced their cohabitation in Australia, they resided in a home owned solely by the husband at Property H in the State of Victoria.  That property, the husband claimed in his affidavit evidence, was subsequently sold for the sum of $110,000 and after payment out of the mortgage of $35,000 he received an amount of approximately $75,000. The wife disputed the husband’s claimed equity in the Property H property and gave evidence it was significantly less but in a sum which she could not provide evidence as to. The husband was not able to be cross-examined as to his claim and so it could be given little weight, save as to the extent the wife was prepared to conceded same. Following the sale of this first home, the parties then purchased and sold other real properties until they purchased, on 7 August 2002, Property G in the State of Victoria (‘the former matrimonial home’). This property was purchased in the joint names of the parties for the sum of $239,000.  The husband continues to reside in the property. It is encumbered by a mortgage but nothing is owing in respect thereto.

2. The husband also had at the commencement of cohabitation a boat, a caravan, a (omitted) and a (omitted) motor vehicle as agreed by the wife.  He claimed to have two motorcycles in addition which the wife challenged. The wife’s contribution at the commencement of the relationship was minimal as she had no assets of any significance.  Following the parties’ marriage in Australia, their three children were born in a short time-frame.  Mr S was born on (omitted) 1994 and he is now aged 22 years; Mr D was born on (omitted) 1995 and he is now aged 21 years; and Ms A was born on (omitted) 1997 and she is now aged 19 years.  These three adult children live independently of each of their parents at the present time.

3. Following the birth of the children, the wife was the primary carer for them.  She worked occasionally when she could and once the children were at school, she enrolled in and completed the training required to become an (occupation omitted). That process took 12 months after which she obtained casual employment at the (employer omitted) in (omitted). This location is approximately 30 minutes from Property G. The wife commenced her employment with her employer in 2007; was given permanent part time employment within three months; and she continues to work in her employer’s (omitted). Additionally and commencing in October 2013, the wife works approximately 10 hours each week as a (occupation omitted) for a (employer omitted). This work is ongoing but subject to funding.

4. In addition to her income producing work and her primary care of the children throughout the period of cohabitation, the wife also attended to the cleaning of the home and the cooking, the washing and ironing for the family. In these tasks she was minimally, if at all, assisted by the husband. The wife’s evidence was that although the husband was not working, he did not help with the daily care of the children. That task was left solely to her.

5. Following the birth of the parties’ second child, the husband’s father died and left an inheritance to his son of approximately $35,000.  The husband in the affidavit sworn by him did not dispute the quantum of the inheritance but claimed that he used the moneys to buy some things for the children; to purchase property in Property P for $17,000; and a further property in Property G for $25,000. These figures on their face appear inconsistent with the inheritance received. Furthermore, the husband is not available to be cross-examined as to that evidence. The wife disputes the husband’s application of those funds in the manner described by him. The wife’s unchallenged evidence, which the Court accepts, is that the parties used the funds inherited by the husband to buy cemetery plots as well as two motor vehicles, being a Ford Falcon and a Mitsubishi Pajero for the parties.

6. The parties separated in January 2013. They remained under the one roof because of financial pressures which prevented either of the parties from moving out. The atmosphere in the home as described by the wife was “unbearable”.  The husband would keep his bedroom locked from the inside with a deadlock. He entered the home through a window to the bedroom. The husband began moving items that he believed were his property into the locked bedroom for safekeeping.  Those items included all of the parties’ personal and private documents which the husband refused to give back to the wife.

7. In February 2013, the wife contacted the police multiple times about the husband’s conduct toward the children and herself. She was also concerned about the husband’s damage to the home. She was advised to obtain a family violence protection order.  The wife did not wish to escalate matters further in the home, or enrage her husband and so for the sake of the children did not proceed. 

8. Also in February 2013, the wife commenced to attempt resolution of property matters between herself and her husband. The husband refused to move out of the former matrimonial home and refused to engage in any form of genuine dispute resolution with the wife as to property matters.

9. Due to the escalation in tension in the home and the wife being further threatened by the husband, the wife in August 2014, organised to take up residence in another home in (omitted). She wished to remain in the area and close to the children. The wife did not complete her move from the former matrimonial home until September 2014. She needed assistance from the police to gather her things to avoid further conflict and she contacted her Solicitors to re-engage them to further attempt to progress a property settlement. 

10. The wife moved into the home of Mr N, who has placed evidence before the Court in his affidavit sworn on 5 August 2015.  In or about September 2014, Mr N had moved into his parents’ home nearby to the former matrimonial home. He offered the wife a spare bedroom for her to stay in until such time as her matrimonial property proceedings with her husband were finalised. The husband asserted that the wife is in a de facto domestic relationship with Mr N. That assertion is given no weight.  That is denied by both the wife and Mr N.  Mr N considers the wife to be a friend who, once she finalises her family law proceedings, will purchase her own home and move out of his home. The condition under which the wife resides in the property of Mr N’s family, is that she pays $150 per week for rent with bills included. The husband remains in occupation of the former matrimonial home paying no mortgage repayments or rental payments. This situation has continued for almost two years.

1. The husband’s aggressive and threatening behaviours toward the wife have continued following her relocation to Mr N’s home. On 4 March 2015 the wife obtained a family violence protection order listing Mr N’s property as her residence, with such order obtained by her against the husband. 

2. In November 2014 the wife’s Solicitor was contacted by a conveyancer who had been instructed by the husband to transfer the former matrimonial home, which is in the joint names of the parties, into the husband’s sole name for no consideration to be paid to the wife.  The wife’s Solicitor immediately contacted the husband by letter dated 18 November 2014 outlining a proposal for settlement to the husband and putting him on notice that any further actions in relation to the fraudulent transfer of the former matrimonial home would be referred to the police.  The husband rejected and continues to reject, any proposals put by the wife. Paragraph 47 of the wife’s affidavit evidence is as follows:-

   “47. Mr Nisbett has stated on multiple occasions to both myself and the children that he would rather burn the house down than sell it.  He does not understand that I may be entitled to a share of the value of the matrimonial property.”

3. The husband has delayed the progress of these proceedings.  Considerable effort and expense has been incurred by the wife in trying to reach a resolution of outstanding property matters with the husband. The proceedings have needed to be adjourned on occasion because of the husband’s failure to put proper evidentiary material before the Court and to make proper disclosure. 

4. The wife has an immediate need to secure housing for herself and she would also like to secure that housing for the parties’ children, who have indicated they would like to live with their mother once she has suitable accommodation. 

Asset Pool

1. The asset pool of the parties at trial is as follows:-

   a)the real property situate at Property G in the State of Victoria, agreed value $510,000;

   b)savings in bank accounts of the parties of minimal and approximately equal value;

   c)a (omitted) Ford Falcon, approximate value $5,900 (in the ownership and possession of the wife);

   d)proceeds of sale of the (omitted) Ford Falcon approximate value $1,400 (received by the wife);

   e)proceeds of sale of the:-

   i)jet ski

   ii)caravan

   iii)Ford (omitted)

   iv)(omitted) Ford Falcon

   v)Toyota Prado

   vi)Cabin Cruiser Boat

   vii)(omitted) boat

   viii)and another vehicle

   Total: $35,000 (this sum is retained by the husband)

   f)furniture in each of the parties’ respective possession of unknown value;

   g)husband’s total and permanent disability claim paid out from an undisclosed superannuation fund of which the husband was a member in the sum of $38,970.32 received by the husband in 2004.  On the evidence it would appear that that payment is in a bank account not disclosed by the husband to the other party in these proceedings; and

   h)wife’s superannuation of $40,261.

2. The husband claims to have a loan to Centrelink of $2,000.

3. The asset pool is as described in a notice to admit facts which was sent to the Solicitors for the husband by the Solicitors for the wife and dated 23 March 2016. The only response to that notice was correspondence from the husband’s Solicitors which took issue with the then value of the wife’s superannuation entitlements as described in the schedule of assets and liabilities in that notice, which was then $34,113.60. In the asset pool as described above, the wife’s superannuation has been updated to provide a figure which is the wife’s superannuation as at the date of trial.

4. The parties agreed that the former matrimonial home had a value of $510,000.  Neither party has the capacity to refinance the real property to enable them to purchase the interest of the other in the real property. Accordingly, the real property will be required to be sold. The children have left the home and each of the parties can be suitably accommodated in a smaller home.  In any event, there is simply not the financial capacity by either of them, on the evidence, to purchase the interest of the other and make a corresponding payment.

Other s.75(2) matters

1. The husband has been largely unemployed since approximately 1994.  Prior to that time, he worked as a (omitted), a (omitted) and sporadically as a (omitted).  From 1994, the husband has not contributed financially in any meaningful way to the family’s expenses through employment. Although the husband receives a disability pension and thus receives in excess of $800 each fortnight from Centrelink, he has for the most part retained those funds for himself.  Any moneys obtained by him from the operation of his (omitted) business since August 2013 have also been retained by him. 

2. The wife’s earning capacity at trial has been reduced as she was required to drop a shift and is thus now working one day less per fortnight.  The reduction in working hours was a consequence of the stress and anxiety suffered by the wife as a result of the husband’s behaviours, together with ongoing tendonitis pain in her shoulder.

Consideration

1. The husband, whilst making a larger contribution than the wife at the commencement of the marriage, due to the equity he had in the property he owned at Property H and the subsequent small inheritance from his father’s estate, has otherwise not made direct financial contributions to the family. 

2. The wife does not have the capacity to earn more than she currently earns, due to her limited training and physical restrictions.  She does not have the emotional and financial support of family who live locally as does the husband. The wife’s superannuation is a small sum. It will provide little support in the many years to come.

3. The husband has made it very clear by his behaviour over a period of time and in submissions made by him yesterday, that he will not cooperate with the wife in any sale of the home and will not countenance any payment to the wife, either from him or from the proceeds of sale.  It is simply not possible to make orders requiring the cooperation of the parties to place the real property on the market for sale and have them reach agreement in respect of any elements going to that sale.

4. It is also not possible, from observing the husband’s demeanour and listening to his submissions yesterday, to make orders wherein the husband would voluntarily leave the property.  Hopefully, a warrant of possession will not become necessary to execute but the Court will provide for the issuing of a warrant to avoid further litigation costs to the wife in these proceedings.

5. The wife has sought a payment of the wife’s costs in the sum of $15,030, being her costs since the forwarding of a letter to the husband’s solicitors on 25 August 2015, proposing settlement of the proceedings, wherein the wife offered to accept the sum of $220,000 within 60 days of the date of the orders in full and final settlement of her property claim. The wife, at the hearing this day, has received a sum in excess of that amount. She has been put to the legal costs of pursuing the matter to trial. Those costs, as quantified and claimed by the wife, are in the sum of $15,030.  They include numerous Counsel fees and Solicitors’ costs of $7,540.

6. The Court, in the exercise of its discretion and mindful that the wife has achieved a property order in greater sum than that which she was prepared to settle for, which was conveyed to the husband at a time significantly in advance of this date, has determined that an amount of $10,000 of the total amount claimed by the wife should be paid by the husband in respect of his rejection of that earlier offer.  This, of course, leaves the wife out of pocket by a further $5,030, but in the determination of the totality of the matter and by reference to the Court’s Schedule of Scale of Costs, the Court determines that that is an appropriate exercise of its discretion. This is additional to the wife’s costs incurred yesterday and thrown away by the husband’s unexplained departure from the Court.

7. The Court shall make orders as sought by the wife.  In essence, they provide for an equal division of the parties’ assets as between them.  Given the husband’s earlier lump sum contribution; the significant indirect contribution of the wife throughout the long period of the marriage toward the household and the care of the children; her direct financial contribution throughout the totality of the marriage and in the period thereafter where the parties were separated under the one roof; and the wife’s need to expend further moneys in her additional accommodation expenses since her physical separation from the husband, the Court determines that this is an appropriate division of the parties assets and a property adjustment that is necessary.

8. Having considered the above matters, the Court is satisfied in all the circumstances, that it is just and equitable to make the orders so sought as required pursuant to s.79(2) of the Family Law Act 1958 (Cth).

9. The enforcement orders which the Court makes this day are made upon the Court’s consideration of the husband’s submissions; his evidence; and his refusal to countenance payment of any description at all to the wife. The Court is also mindful of the threat the husband has made to the wife in respect of the former matrimonial home, as referred to in paragraph 22 these reasons.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 14 July 2016