PALIN & PALIN
[2020] FCCA 701
•27 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PALIN & PALIN | [2020] FCCA 701 |
| Catchwords: FAMILY LAW – Property – undefended final hearing – contributions – family violence – whether contributions made more arduous. |
| Legislation: Family Law Act 1975 (Cth), s.79 |
| Cases cited: Keating & Keating (2019) FLC ¶93-894 |
| Applicant: | MS PALIN |
| Respondent: | MR PALIN |
| File Number: | HBC 786 of 2018 |
| Judgment of: | Judge Baker |
| Hearing date: | 11 March 2020 |
| Date of Last Submission: | 11 March 2020 |
| Delivered at: | Hobart |
| Delivered on: | 27 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dwyer |
| Solicitors for the Applicant: | Butler McIntyre & Butler |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | N/A |
ORDERS
Within forty-five (45) days of the date of this Order, the husband relinquish in favour of the wife and transfer to her, all his right, title, and interest in the former matrimonial home situate at A Street, Town B in Tasmania as more particularly described in Certificate of Title Volume …, Folio … (“the A Street, Town B property”).
Within forty-five (45) days of the date of this Order the parties will sign all documents and do all things necessary to discharge the mortgage, Registered No. …, with the wife to be responsible for the payment of monies necessary to effect the same.
The wife be solely responsible for the payment of rates (including arrears), water charges, taxes (if any) and all other outgoings in respect of the A Street, Town B property.
Within forty-five (45) days of the date of this Order, the husband sign all documents and do all acts and things necessary to discharge the Enforcement Warrant, Registered No. …. Provided that in the event that the Enforcement Warrant is not capable of being discharged without payment, the wife will make payment to enable the same to be discharged.
Within forty-five (45) days of the date of this Order, the husband will relinquish in favour of the wife, and transfer to her, all his right, title, and interest in the following:
(a)The Motor Vehicle 1 in the wife’s possession, Registered No. …;
(b)Any interest in earnings, savings, monies at bank, shares or investments held in the name of the wife, or under her exclusive control;
(c)Any policy of life insurance or assurance owned by the wife, or held for her benefit; and
(d)Any furniture, household effects and chattels, in the possession of the wife.
to the intent that the wife will be the sole and absolute legal and beneficial owner thereof.
Within forty-five (45) days of the date of this Order, the wife will relinquish in favour of the husband, and where necessary transfer to him, all her right, title, and interest in the following:
(a)Any interest in earnings, savings, monies at bank, shares, investments, or any superannuation entitlements held in the name of the husband, or under his exclusive control;
(b)any policy of life insurance or assurance owned by the husband, or held for his benefit; and
(c)any furniture, household effects and chattels, in the possession of the husband,
to the intent that the husband will be the sole and absolute legal and beneficial owner thereof.
This Order is binding on the personal representatives, administrators, executors, heirs and assigns of each party.
In the event that the husband refuses or neglects to execute any deed or instrument that may be required to give effect to these Orders, a Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party or parties and do all acts necessary to give validity to the operation of the deed or instrument.
The wife forthwith cause her solicitors to serve a copy of this Order and reasons to the husband by way of substituted service by:
(a)Post to C Street, Town D in City F;
(b)Post to E Street, Town D in City F; and
(c)Email to …
AND THE COURT NOTES THAT:
This Order was made following a final hearing conducted on an undefended basis and should be read in conjunction with these reasons.
Pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001, the Court may vary or set aside a judgment or order made in the absence of a party.
IT IS NOTED that publication of this judgment under the pseudonym Palin & Palin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 786 of 2018
| MS PALIN |
Applicant
And
| MR PALIN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for property adjustment made by the wife. Leave was given for her to proceed with the hearing for a final order on an undefended basis.
An order for substituted service was made on 3 September 2019. In an affidavit sworn 10 October 2019, Ms G deposed that on 18 September 2019 she arranged for the wife’s initiating application filed on the 20 September 2018 (with the return date amended to 4 November 2019), the wife’s affidavit and financial statement, sworn 19 September 2018, and the order made 3 September 2019, to be sent by post to two addresses and by email to the husband’s known email address.
On 4 November 2019, the husband did not appear. He had not filed any responding documents. I ordered that the matter be adjourned to 4 December 2019 for a possible undefended hearing. On 4 December 2019, the hearing did not proceed as the wife was not ready. I adjourned the matter to 11 March 2020. I ordered that the solicitor for the wife write to the husband and inform him of the listing and the likelihood of the matter proceeding to an undefended hearing if he did not attend.
The wife filed an affidavit of Ms G on 10 March 2020. She deposed that on 6 December 2019, she arranged for a letter from the wife’s solicitors and the court order made on 4 December 2019, to be forwarded to two postal addresses and to the husband’s email address. The wife’s financial statement and affidavit, filed 27 February 2020, were served on the husband by email dated 2 March 2020.[1]
[1] Exhibit A1.
On 11 March 2020, the husband was called outside the courtroom but did not appear.
The husband has not filed any responding documents as required by the Federal Circuit Court Rules 2001. He has not participated in the proceedings. The hearing proceeded in his absence.
Background
The parties commenced a relationship in mid-1980, they married in 1987 and separated in 2015. The husband has not had any communication with the wife or the family since 2015.
The parties have three adult children. The wife has been a homemaker and parent throughout the marriage. She is 60 years of age and is in receipt of a disability pension. She suffers from osteoporosis and emphysema and is in remission for bowel cancer. She also suffers from chronic depression and anxiety.
During the marriage, the husband was employed at a factory until a workplace injury in the early 1990s. After his injury he was unemployed throughout the marriage. His current financial circumstances are unknown.
The wife proposed that she receive 100 per cent of the asset pool.
Relevant Law
Section 79 of the Act provides that the Court may make orders in property settlement proceedings to alter the interests of the parties to the marriage in the property.
Section 79(2) of the Act requires that any such order must be “just and equitable”. Section 79(4) provides the matters which are to be taken into account when considering what order should be made. This sub-section provides as follows:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last mentioned property, whether or not that last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last mentioned property, whether or not that last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
A court must satisfy the requirements of s.79(2) before it examines what order should be made pursuant to s.79(4). [2]
[2] Stanford & Stanford (2012) 247 CLR 108.
Consequently, in order to determine whether it is just and equitable to make an order, the existing legal and equitable interests of the parties in the property must be identified. Having determined that it is just and equitable to make an order, consideration will then be made about what order should be made assessing the factors in s.79(4).
In this matter the husband has not filed any documents, including a financial statement, in accordance with the Federal Circuit Court Rules 2001. The Court is therefore unable to identify any assets he owns or any of his liabilities, and has to do the best it can, having regard to the available evidence.
The wife claimed that there should be an adjustment in accordance with Kennon & Kennon.[3] In this decision, the Full Court of the Family Court held the view that family violence could be relevant to the assessment of contributions under s.79. In support of the wife’s claim, her counsel also cited the decision of Keating & Keating[4] in which the Full Court considered the decision of Kennon & Kennon.[5]
[3] (1997) FLC ¶92-757.
[4] (2019) FLC ¶93-894.
[5] (1997) FLC ¶92-757.
Property
The known assets and liabilities are as follows:
Assets
A Street, Town B (Husband) $290,000
Motor Vehicle 1 (Wife) $1,500
Total $291,500
Liabilities
Mortgage (Joint) $48,000
Debt Region H Council (Husband) $7,643
Debt enforcement warrant (Husband) $4,335
Default judgment (Husband) $2,155
Centrelink debt (Wife) $700
Total liabilities $62,833
Total $228,667
Superannuation
The wife does not have any superannuation. She is unaware whether the husband has any superannuation.
Is it just and equitable to make a property order?
Having regard to the existing property interests of the parties and their circumstances, I am of the view that it is just and equitable to consider an order for an adjustment of the property between them.
The real estate is in the sole name of the husband. The mortgage is in joint names. The wife is seeking that the real estate be transferred to her. There needs to be a finalisation of their financial relationship.
Approach to be taken
The global approach is the usual approach in property proceedings. However, it is open to a court to undertake the asset-by-asset approach, if it is more appropriate.[6] I consider that the global approach taken by the wife is appropriate.
[6] Norbis & Norbis (1986) FLC ¶91-712.
Contributions
In 1993, the parties purchased land at A Street, Town B for $23,000. In 1994 they began building the family home. The husband obtained a personal loan of $25,000 from the J Bank. He received a $50,000 workers compensation payment, which was used to pay off the personal loan, and to finance the building of the home. Some of the monies were used for living expenses and to pay off the wife’s car loan of around $3,000. The parties borrowed $15,000 in joint names from the J Bank. They increased the mortgage loan as the home was built. At the conclusion of building in around 2003 the loan was $80,300.
The wife used her Centrelink payments to pay for household expenses and clothing for the children. She was the financial manager of the household. She received an inheritance of $5,000 in 1995, which was used to purchase windows and doors for the home.
The wife made non-financial contributions by assisting with the building of the home and landscaping the garden.
The wife was solely responsible for homemaking and parenting the children. She also cared for the husband’s mother early on in the marriage. Since separation she has provided financial and emotional support for the parties’ adult son, Mr K, who has mental health issues. He and his girlfriend live with the mother.
After 2010, the wife said that a four-wheel drive motor vehicle, boat, trailer and fishing equipment were collected by a man from the property for “a drug debt” owed to him by the husband. The wife estimated their value at around $10,000.
In 2011, a default judgment was made against the husband in favour of L Pty Ltd for $2,155.20. The wife did not know about the husband borrowing the money at the time. A caveat is registered on the title to the former matrimonial home and the husband has not made any repayments in respect of the debt. There is also an enforcement warrant for a debt, incurred by the husband, and charged against the property for $4,118.62. The wife did not have any knowledge about the circumstances of the warrant.
In 2014, the wife entered into an agreement with the Region H Council to pay $25 per fortnight for the accrued outstanding rates. The wife had not known that the rates were outstanding, as the demands were sent to the husband.
In 2015, the wife was told by the Commonwealth Bank that the mortgage was in default and there would be a foreclosure. The wife negotiated the repayments of the mortgage and prevented the foreclosure. She paid $400 per fortnight and caught up with the repayments by 2016.
Since separation, the wife has paid all the outgoings on the property and has maintained the home. She was left by the husband to assume responsibility for the debts. She managed to prevent the sale of the property.
The wife described family violence perpetrated upon her by the husband throughout the marriage. Her self-esteem and personal resilience were damaged by his behaviour. He was verbally abusive, controlling and aggressive. This escalated over the years to him going on rampages and smashing objects, making threats and intimidating the wife and swearing at her. After 2010, the abuse was so violent that there were many occasions when she believed the husband would kill her. She deposed that he threatened to “slit my throat” or “burn me alive”. He also threatened to sexually assault her. Rather than punching or kicking her, which would cause obvious bruises, he would pull her hair and drag her along the ground, grab her wrists and hold her down, spit on her, push her and “knock me around”.
The wife described one of the most terrifying nights, when at 2:00am one morning, she woke to hear that he had a chainsaw operating to hack down the door, and was screaming at her “open the fucking door or I’ll slit your throat.” He started screaming and threatening her, but she managed to flee to a neighbour’s house. The following day she went to a women’s shelter and a family violence order was made against him. Another order was made against him on 20 August 2015 for a period of 12 months.
The husband’s behaviour isolated the wife. This affected her mental health so much that she would often experience panic attacks or severe anxiety over minor things, such as going to the supermarket for grocery shopping. After 2010 when the abuse was at its worst, she found it emotionally difficult to keep the family together as a unit. Her parenting was undermined by him.[7]
[7] Affidavit of the wife filed 27 February 2020, [69], [71].
Between 2010 and 2015, she stayed in women’s shelters between four or five times for periods of weeks at a time. She lived in a constant state of fear and anxiety, particularly during those five years.
The husband was also physically violent towards Mr K. He has mental health problems now, including agoraphobia and severe social anxiety. The wife said that the husband manipulated the children against her and would tell them that she was crazy and forcing him out of the home.
I am persuaded by the wife’s evidence that the husband’s violence made her parenting contributions more arduous and increased her contributions. I consider that an adjustment of 5 per cent is appropriate.
I consider that the contributions should be assessed on the basis of 80 per cent in favour of the wife and 20 per cent in favour of the husband.
Section 79(4)(e)
The wife is 60 years old and receives a disability pension of $926 per fortnight. She is in poor health. She has osteoporosis and emphysema. She has ongoing treatment for osteoporosis. She uses an inhaler for emphysema and she is required to buy refills every four weeks. She was diagnosed with bowel cancer in 2013. She underwent chemotherapy in 2014 and has been in remission since around 2015.
The wife has consulted a clinical psychologist for depression and anxiety, but she cannot currently afford to do this. Her mental health plan did not cover the entire cost. She takes anti-depressant medication and anti-anxiety medication.
The wife has lived in the former matrimonial home since around 1995. She still experiences anxiety attacks in public places when she goes out, and the thought of living in a busy suburban or city induces anxiety. She does not believe that she would cope leaving the property and to have to restart in a new location.
The husband’s income and financial circumstances are unknown, as he has not participated in the proceedings. It is not known whether he has superannuation. The wife does not have superannuation.
The effect of the findings as to contributions is that the wife will receive property to a value of $182,934 and the husband property to a value of $45,733.
In my view, the wife should receive a credit of 20 per cent for the above factors. In real terms, this amounts to the sum of $45,733. This will mean that the wife will receive 100 per cent of the known property. She will be able to retain the former matrimonial home, where she has lived for around 25 years.
The wife will retain the following:
Assets
A Street, Town B $290,000
Motor Vehicle 1 $1,500
Total Assets $291,500
Liabilities
Mortgage $48,000
Debt Region H Council $7,643
Debt enforcement warrant $4,335
Default judgement $2,155
Centrelink debt $700
Total liabilities $62,833
Total $228,667
I consider that this result is just and equitable and appropriate.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 27 March 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Procedural Fairness