Oxley and Oxley

[2015] FCCA 2602

FEDERAL CIRCUIT COURT OF AUSTRALIA

OXLEY & OXLEY [2015] FCCA 2602

Catchwords:
FAMILY LAW – Parenting and property – no appearance by the husband – undefended – children live with the wife – wife has sole parental responsibility – consideration of s.75(2) factors – husband not supporting the wife and children – very small asset pool – property already held by the husband – transfer of remaining property foreshadowed to wife.

Legislation:

Family Law Act 1975 (Cth), s.75(2)

Applicant: MS OXLEY

Respondent: MR OXLEY

File Number: MLC 4591 of 2015

Judgment of: Judge Hartnett

Hearing date: 1 September 2015

Delivered at: Melbourne

Delivered on: 1 September 2015

REPRESENTATION

Counsel for the Applicant: Ms Baczynski

Solicitors for the Applicant: Daniel Lawyers & Associates

The Respondent: No appearance

ORDERS

1. The mother have sole parental responsibility for the children X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2013 (‘the children’).

2. The children live with the mother.

3. The father’s time with the children be reserved.

4. All extant applications are adjourned to 6 October 2015 at 9.45am AND THE COURT NOTES THAT it is anticipated proposed orders will be sent to Chambers after the trustee of the father’s superannuation fund has been afforded procedural fairness and the Court will be able to make orders, consequent upon receipt of that document, as sought by the mother, being orders 2 b), c) and f) of the mother’s Amended Application filed on 30 July 2015.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4591 of 2015

MS OXLEY

Applicant

And

MR OXLEY

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. This matter comes before the Court on an Initiating Application filed by the wife on 22 May 2015.  That application has been amended by Amended Initiating Application filed on 30 July 2015, and it is on the Amended Initiating Application that the wife proceeds this day.  The matter was first returnable before the Court on 16 June 2015.  Counsel appeared for the wife on that day and there was no appearance by or on behalf of the husband.  Interim ex parte orders were made, the husband not appearing because service had not been effected upon him. Included in the orders made that day, were orders for substituted service upon the husband.  The Court is satisfied, on the affidavit evidence that has been filed in these proceedings, that such service has occurred.

2. The Orders made on 16 June 2015 included interim orders with respect to the parties’ three children X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2013 (‘the children’). The Court ordered that the children live with the mother and the father’s time with them be supervised.  The Court made other orders in respect of the parties’ property and I note, relevantly, for the purpose of these Reasons, orders numbered 8 and 9 therein, which are as follows:-

   “8. That the Wife be at liberty to communicate with the (omitted) bank regarding the mortgage secured against the former matrimonial home.

   9. That the Husband be restrained by way of injunction from withdrawing any moneys or taking any advances from the (omitted) mortgage loan secured against the former matrimonial home”

3. The wife in fact communicated promptly with the (omitted) Bank, notifying it of the Orders that were made on 16 June 2015.  Nevertheless, on 8 August 2015, the husband was able to draw down a further sum of $1,500 on the (omitted) Bank mortgage loan and in breach of order number 9 of the Orders of 16 June 2015.

4. The husband has failed to attend at Court this day.  He has not answered the call outside the courtroom.  He has not filed any material in the proceedings.  The proceedings essentially are undefended. 

History

1. The wife relies upon the evidence as contained in her Financial Statement filed on 22 May 2015, her first Affidavit filed on 22 May 2015, and her subsequent Affidavit filed on 31 August 2015.  There is a Form 6 filed by the wife in the proceedings.

2. The wife was born on (omitted) 1989.  She is now 26 years of age.  The husband was born on (omitted) 1986.  He is now 29 years of age.  The parties commenced their cohabitation in (omitted) 2011 at the wife’s parent’s home.  The relationship itself commenced some many months prior thereto.

3. The parties’ first child, X was born on (omitted) 2010.  X suffers from autism.  X is now four years of age (nearly five).  The parties married on (omitted) 2011.  Y was born on (omitted) 2012.  She is now aged three years.  Following, Z was born on (omitted) 2013.  She is now aged two years.  The parties separated on 21 September 2014.  The parties remained under the one roof for a period of time.  The wife and the children of the marriage left the former matrimonial home in January 2015.  The husband then vacated the home, and the wife and children returned to again take up residence in the former matrimonial home.

4. The husband, following separation, paid an amount of $181 in child support each week for a few months. He subsequently ceased his employment earlier in this year and, at that time, ceased to pay any amounts to the wife by way of child support. 

5. The wife, in her first Affidavit of 22 May 2015, alleges that both she and the children were victims of family violence at the hands of the husband, and that mostly, this was a result of his drug usage.  The wife said, at paragraph 29 of that Affidavit, as follows: -

   “One night and whilst I was asleep he was convinced I had called the police on him for reasons unknown to me.  He believes I had a notepad in the kitchen from a private investigator that was investigating him.  He came in and out of the bedroom, bathroom, garage and house turning everything upside down trying to find out why I had called the police on him.  He was screaming at me trying to get answers that I did not have.  He was babbling and saying random words that did not make any sense.”

6. The wife also deposes in that same Affidavit to the husband yelling loudly at the children, especially X, which caused her to be concerned and protective, in particular given X’s autism.  The wife also claimed the husband made constant complaint about having no money. He commenced to sell household items, and the wife’s personal items. 

7. Following the parties’ separation in September 2014, the husband withdrew advance repayments that had been made by the parties to their mortgage liability secured over the former matrimonial home. The husband withdrew the sum of approximately $32,000 against the home loan.  The first withdrawal occurred around 20 October 2014, and the last around the 7 January 2015, save for the more recent withdrawal to which I have earlier referred. The withdrawals made by the husband were as little as $500, and as much as $6,000, and occurred in the space of a few days.  The husband gave no reasonable explanation to the wife as to why he had withdrawn the parties’ funds.  In addition, the husband’s behaviour became more erratic.  He took and sold one of the two family cars that the parties had.  The car which he sold he had purchased in about (omitted) 2013.  It was a Ford Territory (omitted).  The purchase price was approximately $29,000.  The wife gave oral evidence this day that she observed the car to be advertised by the husband after separation on a website with an asking price of approximately $20,000.  The remaining car had a value of approximately $5,000.  The husband also took that car.

8. On 2 March 2015, the wife obtained an Intervention Order against the husband.  The Intervention Order notes the protected persons are not only the wife, but the parties’ three children.  It was obtained in the presence of the husband.  It was obtained by consent and without admission of the allegations in the complaint.  The Intervention Order expires at midnight on 1 March 2016 unless extended or varied prior to that time.  The wife obtained same to protect herself and the children from family violence.

9. The wife was engaged in home duties during the course of cohabitation and following the birth of the children.  Since shortly before separation, she commenced to be employed by (employer omitted).  She works 26.5 hours a week.  She is in receipt of income of approximately $682 gross per week for those hours worked.  These are the hours that she is able to work, given her sole care of the children in the absence of the husband.  The wife is assisted in her care of the children, when necessary, by her mother.  The mortgage repayments on the home are $649 weekly, interest only repayments.  The husband fell into arrears in respect of same sometime prior to separation.  The wife has taken on the responsibility of meeting repayments. 

Assets

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

   a)the former matrimonial home situated at Property T in the State of Victoria, valued at approximately $380,000, less the mortgage owing of approximately $354,000, leaving a net equity of approximately $26,000; 

   b)the Ford Territory which the husband sold shortly after separation, with an approximate value of $19,000; 

   c)the wife’s superannuation entitlements of $11,365; 

   d)the husband’s superannuation entitlements of approximately $29,640 as at 30 June 2014; and

   e)a further car valued at approximately $5,000, in the husband’s possession. 

   The total asset pool is approximately $91,005, including superannuation benefits of the parties.

Consideration

1. The wife has expended approximately $7,000 on legal costs to date.  The husband has expended no funds on legal costs, and has not participated in the proceedings.  The wife is seeking orders as set out in her Amended Initiating Application, and the Court will accede to the making of those orders, subject to being assured that the Trustee of the husband’s superannuation fund has been afforded procedural fairness.  The Court is not in a position to make those orders this day.

2. The Court determines on the evidence before it, subject to the matter identified above being resolved, that the orders proposed by the wife are just and equitable in the circumstances of this case.  Essentially, the wife seeks that she receive approximately 75 per cent of the total asset pool.  The former matrimonial home is registered in the husband’s name.  It was acquired in the manner set out by the wife in paragraphs 12 and 13 of her first Affidavit of 22 May 2015, which was as follows:-

   “12. We made up the deposit to build the property with contributions from Mr Oxley’s wage from Western Australia, Mr Oxley’s first home owners grant $20,000 and other payments I was receiving from Centrelink eg. Job seeker, family tax benefit and baby bonus. 

   13. We had no financial help from parents on either side.  However, my family helped with the move and also with landscaping the property’s front and backyard.”

3. The parties moved into the former matrimonial home in July 2011 and resided there for just over three years.  Ownership will be required to be transferred from the husband to the wife pursuant to the wife’s application.  The wife has already liaised with the (omitted) Bank and is attending to the mortgage repayments.  The wife will retain, as proposed by her, her superannuation entitlements and have transferred to her 100 per cent of the current entitlements of the husband. She will also have the equity in the former matrimonial home.  The husband will retain the equity in the two cars already removed by him.  The husband has the benefit of the $1,500 recently withdrawn by him on drawdown of the (omitted) Bank mortgage loan, and the earlier $32,000 withdrawn by the husband in the same manner and also without the wife’s consent.

4. The Court finds that upon a consideration of the s.75(2) of the Family Law Act 1975 (Cth) matters, they weigh heavily in favour of the wife. She has the full time care of the three children who are young in years, and without proper financial support being provided by the husband. The wife’s income is restricted by her care of the children. The husband has ceased his employment, voluntarily, on the evidence and thereby ceased any payment to the wife for the support of the children. The husband has an earning capacity, should he chose to exercise it, that exceeds that of the wife.

5. The parties’ asset pool was significantly diminished by the husband’s actions. The wife has acted to provide for the housing needs of the children and herself. She is currently the children’s only means of support and, on the facts, it is likely that situation shall continue. It is not possible to say on the evidence whether and, if so, when the husband shall spend time with the children again. The wife’s parenting orders application and her property orders application should be acceded to.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 22 September 2015