PAULLIN & PAULLIN
[2020] FamCA 364
•14 May 2020
FAMILY COURT OF AUSTRALIA
| PAULLIN & PAULLIN | [2020] FamCA 364 |
| FAMILY LAW – PROPERTY – Undefended hearing – Application for adjustment of interests in matrimonial property – Where consideration of the relevant contributions and the section 75(2) factors favour the wife – Where it is just and equitable to make an adjustment – Ordered husband transfer to the wife all his right, title and interest in the former matrimonial home. |
| Family Law Act 1975 (Cth) ss 75, 79, 106A(1) |
| Bevan & Bevan [2013] FLC 93-545 Stanford & Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Paullin |
| RESPONDENT: | Mr Paullin |
| FILE NUMBER: | NCC | 3460 | of | 2018 |
| DATE DELIVERED: | 14 May 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 12 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Everingham Solomon |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Not applicable |
Orders
That the respondent husband shall transfer to the wife, all his right, title and interest in the property at C Street, B Town NSW being the whole of the land in Folio Identifier Lot … in DP … (“the B Town property”).
Notwithstanding the provision of Order 1, and where the Court considers it necessary to exercise the powers of the Court under s 106A(1) of the Family Law Act 1975 (Cth) (“the Act”), a registrar of the Family Court at Newcastle be and hereby is appointed to execute in the name of the husband the documents listed herein and shall do all acts and things necessary to give validity and operation to the instruments identified:
(i) The transfer to the wife of the husband’s interest in the B Town property;
(ii) The discharge of mortgage secured on the B Town property by the Commonwealth Bank of Australia (“CBA”) being mortgage no. … and CBA account no. … (“the subject mortgage”).
Within 60 days of the making of these orders the wife shall do all acts and things and execute all documents to:
(i) Discharge the subject mortgage and refinance, in her own name, the debt secured by the subject mortgage;
(ii) Pay to Legal Aid NSW the sum of four thousand three hundred and thirty four dollars and eighty two cents ($4,334.82) in full satisfaction of the debt owed by the husband to Legal Aid NSW being the total amount of the charge secured by Caveat on the B Town property.
A declaration is made pending registration of the transfer to the wife of the husband’s interest in the B Town property that the wife holds, to the exclusion of the husband, the whole of the legal and equitable interest in the B Town property.
Except as provided by any order to the contrary in these orders, the husband shall be declared as against the wife the owner and thereby entitled to retain all right, title and interest in and to the following property:
(a)All moneys held in any bank account standing in his sole name or held for his benefit;
(b)Any superannuation fund or entitlement standing in his name or to his benefit.
Except as provided by any order to the contrary in these orders, the wife shall be declared as against the husband the owner and thereby entitled to retain all her right, title and interest to the exclusion of the husband in:
(a)All moneys held in any bank account standing in her name or held for her benefit;
(b)Any superannuation fund or entitlement standing in her name or to her benefit; and
(c) The contents of the B Town property.
That unless otherwise specified in these orders, the wife, her heirs, successors and assigns shall indemnify the husband and keep him indemnified in respect of all action, suits, claims or demands in relation to:
(a) Any other liability standing in her name;
(b)Any liability encumbering any item of property to which she is entitled pursuant to these orders.
That unless otherwise specified in these orders, the husband, his heirs, successors and assigns shall indemnify the wife and keep her indemnified in respect of all actions, suits, claims or demands in relation to:
(a) Any other liability standing in his name;
(b)Any liability encumbering any item of property to which he is entitled pursuant to these orders.
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 Paullin & Paullin 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 NEWCASTLE |
FILE NUMBER: NCC 3460 of 2018
| Ms Paullin |
Applicant
And
| Mr Paullin |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Paullin (“the wife”) for an adjustment to interests in matrimonial property.
The matter was heard undefended by the husband. He is currently serving 10 years imprisonment having been convicted of sexual assaults on the parties’ now 14 year old daughter.
The parties met, commenced living together and were married in 2002. They separated in August 2017 following disclosures of the above abuse.
The Parties
The Applicant Wife – Ms Paullin
The applicant wife is currently 48 years of age. She is the homemaker for the children and herself. The wife is also employed three days per week. She continues to live in the family home in B Town.
The wife’s household consists of herself and the two children of the marriage, now aged 16 and 14 years.
The Respondent Husband – Mr Paullin
The respondent husband is currently 48 years of age.
He has been incarcerated in the K Correctional Centre in City J, New South Wales, since his arrest in 2017. His earliest date for release on parole is in 2024, full term 2027.
Brief History of Relevant Events
In 2003 the parties purchased C Street, B Town (“the family home”) for $60,000.
The husband’s daughter from a previous relationship, Z, then aged eight or nine years, lived with the parties for about 12 months before returning to live with her own mother.
Over the next three years, the two children of the marriage were born.
In August 2017 both children, then aged almost 14 and 11, disclosed to their mother repeated sexual abuse of them by their father. The wife reported the abuse to the police which resulted in the husband’s arrest later that day and subsequent imprisonment.
The parties’ marriage ended on that day, from the perspective of the wife.
On 7 February 2018 Apprehended Domestic Violence Orders (“ADVOs”) were issued to protect the children from their father for five years.
In October 2018 the wife was informed that the husband had entered into a Charge Agreement with Legal Aid NSW for representation/advice in his criminal matter. This resulted in a caveat being lodged on the title to the former matrimonial home to secure costs of legal representation.
Proceedings commence in the Family Court of Australia
On 6 November 2018 the wife commenced proceedings in this Court.
On 8 February 2019 interim orders were made restraining the husband from causing or allowing the joint tenancy of the title to the former matrimonial home to be severed.
In November 2019 the husband was convicted at the District Court and sentenced to 10 years imprisonment.
On 13 November 2019 final parenting orders were made by this Court after an undefended hearing.
On 27 February 2020 procedural orders were made granting leave to Legal Aid NSW to intervene in the proceedings. It was not necessary for that leave to be taken up. By correspondence between Legal Aid NSW and the wife’s solicitors, the wife reached an agreement to pay the amount of $4,334.82 in order for the Caveat on the title to be discharged.
The Trial
On 1 April 2020, the husband was served with the orders setting the matter down for trial.[1]
[1] Affidavit of the wife filed 15/04/2020, Annexure 3.
On 1 April 2020 the wife’s solicitors received from the husband a letter dated 24 March 2020 stating he “did not wish to participate in the proceeding of the family courts anymore”.[2]
[2] Affidavit of the wife filed 15/04/2020, Annexure 4.
As she was obliged by law to do, the solicitor for the wife served the husband with the trial affidavit of the wife. Documents were sent by registered post on 16 April 2020 and delivered on 20 April 2020.[3]
[3] Affidavit of the wife’s solicitor filed 29/04/2020, Annexure JRB3.
The Amended Application was apparently not served. I am satisfied that the husband knew from the date of service of the Initiating Application[4] that the wife was asking the Court for an order that she have the whole of the legal and equitable interest in the former family home.
[4] Initiating Application of the wife filed 6/11/2018.
The husband has not filed any documents.
The undefended trial was listed for one hour on 12 May 2020.
It concluded within the allocated time.
The wife was represented by her solicitor.
There was no appearance by or on behalf of the husband.
The Evidence
The documents relied on in respect of the application were as follows:
The Applicant – Ms Paullin
(a)Amended Initiating Application filed 8/04/2020;
(b)Affidavit of Ms Paullin filed 15/04/2020;
(c)Financial Statement filed 31/03/2020;
(d)Affidavit of solicitor - Ms Jennifer Blissett (Service) filed 29/04/2020.
Approach to alteration of interests in property
In considering applications for alteration of property interests and transfer of property the Court must:
(i)Identify the existing legal and equitable interests of the parties in property;[5]
(ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;
(iii)
If an alteration should be made, to consider the matters contained in
ss 79(4) and 75(2) of the Act in coming to an adjustment; and
(iv)Analyse and consider whether the adjustment under consideration would be just and equitable.
[5] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FLC 93-545.
1. Identify the assets and liabilities of the parties
The parties’ assets and liabilities disclosed by the wife are set out in her Financial Statement.
Assets
1. C Street, B Town (Joint) 180,000
2. CBA Account (W) 252
3. Motor Vehicle 1 (Joint) 500
4. Household Contents (Joint) 4000
5. Superannuation (W) 159,000
TOTAL343,752
Liabilities
1. Mortgage (Joint) 27,900
2. Debt to Legal Aid (H) 4,334
TOTAL 32,234
NET ASSETS 311,518
2. Would it be just and equitable to make an adjustment to interests in property
The parties hold their most significant asset, the family home at B Town, as joint tenants.
The parties have lived separately for almost three years and there is no prospect of reconciliation.
It is just and equitable to adjust interests to reflect contributions and future needs and to put an end to the financial relationship between the parties.
3. Consideration of ss 79(4) and 75(2) of the Act in order to come to a just and equitable adjustment
Contributions under section 79(4)
The wife came to the relationship, aged about 30 years, in full time employment as a retail sales assistant. She had savings of $2000, a Motor Vehicle 1, some household furnishings and a superannuation fund.
I accept the unchallenged evidence of the wife that she worked full time and part time throughout the marriage until 2017. The wife acknowledged that the husband worked in a similar pattern. The parties applied their earnings to household expenses, mortgage payments and the needs of the children.
Until she turned 18 years, in about 2011, there were child support payments for the father’s elder daughter from an earlier marriage. The wife met those payments if the husband was not working at any time.
Until 2017, the contributions of the wife were substantial. She was responsible for getting the children to school and to medical appointments and for the day to day work of feeding, clothing, bathing and entertaining the children as they grew up.
The wife also undertook the domestic work of the household; cleaning, washing ironing, shopping, cooking and packing lunches.
In August 2017 the parties’ lives changed. The husband was removed from the household to gaol where he has remained at first on remand, now serving his sentence.
For the next two years the wife relied on Commonwealth benefits as she supported the children in recovery and, in the case of herself and the younger child, as witnesses in the trial.
The wife has probably reflected on the time, before disclosure, when the children were suffering at the hands of their father while she was absent from the home at work.
She has had the fortitude to remain living in the same town, in the same house with the children. She has replaced all bedroom and lounge room furniture and soft furnishings “that reminded the children of Mr Paullin.”[6]
[6] Affidavit of the wife filed 15/04/2020, para 32(c).
In April 2019 the wife returned to work on a permanent part time basis.. She earns about $600 per week and receives Family Tax Benefits.
It is an understatement to say that the contributions of the wife have been made more onerous by the conduct of the husband.[7]
[7]Kennon & Kennon (1997) FLC 92-757.
Contributions of the wife exceeded those of the husband prior to separation. They have overshadowed and eclipsed them since.
Relevant factors under section 75(2)
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The wife has the family home to live in. She has been given conditional approval by a bank to refinance the loan, presently in the joint names of the parties, and to extend it to cover the sum outstanding to Legal Aid NSW for the husband’s legal fees.
The wife is working to capacity, consistent with the needs of the children; now both at high school.
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
The wife has the sole care and full financial responsibility for the two children of the marriage.
Commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain
The wife is in part-time employment 24 hours per week.
The responsibilities of either party to support any other person
On … 2019 the wife’s father, Mr H died. The wife assists with the care and welfare of her mother, Ms H, who is disabled and requires daily assistance.
Subject to s 75(2)(3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
The wife had superannuation interests of $161,240. Her oral evidence at trial was that her fund had diminished to $159,000. She will be able to access those funds as a retirement income in between seven to 18 years depending on the terms of the fund.
The wife gave oral evidence that the husband had a superannuation fund of about $31,000 in 2017. She did not believe he had other assets but could not be sure.
The effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant
The debt owed by the husband to Legal Aid NSW has been agreed at $4,334.82.
The wife will be obliged to extend borrowing in order to pay the agreed sum.
The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The marriage endured for 15 years.
The need to protect a party who wishes to continue that party's role as a parent
The wife has found paid work to provide for herself and the children and has arranged her work hours around their educational and personal needs.
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
The wife receives no child support and there is no possibility of her doing so. The younger child will turn 18 just before the husband is released from gaol, even if he is released early on parole.
Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
The husband, by his criminal offending, caused immeasurable suffering to the children and to the wife, who has taken on all the responsibilities of a single parent.
The wife and the younger child were witnesses at trial.
The wife will be contributing to the cost of the husband’s legal representation in his trial in the District Court.
The wife has been placed on the Victims Register at her request. She will be notified if the husband is considered for parole.
The wife has carried the legal costs of bringing the parenting arrangements and adjustment of financial interests to conclusion. There was also an application to restrain the husband from severing the joint tenancy in respect of the B Town property.
In all of these circumstances I consider that the contributions made by the wife to the date of trial and her future needs for herself and the support of the children justify a transfer of the husband’s interest in the family home to the wife such that she is the sole owner.
Security of accommodation allows the wife to maintain her current employment whilst meeting the day to day needs of the children without any contribution of child support from the husband.
4. Analysis of whether the adjustment contemplated is just and equitable
The adjustment to property interests favours the wife. The husband is left with whatever his superannuation consists of and any bank accounts he may have. The wife has the family home and her superannuation. I am satisfied that the adjustment is just and equitable.
Orders pursuant to section 106A of the Act
It is usual for provision to be made in a suite of property orders for a registrar to sign relevant documents in the event that a party has declined to do so.
In this case the husband has chosen not to participate in these proceedings. It is probable that he will decline to sign and return a Transfer/Discharge of Mortgage if those documents were provided to him.
The wife would be put to additional cost and delay with no benefit.
The legislation provides for the Court to appoint an officer of the Court to execute a deed when a person refuses or neglects to do what has been ordered or for any other reason the court considers it necessary to exercise the powers of the court under subsection (1) of section 106A of the Act.
I consider it necessary for the reasons stated to provide for a registrar of this Court to execute documents as the first point of reference rather than as a fall-back position.
Orders are made accordingly.
I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 14 May 2020.
Associate:
Date: 14 May 2020
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Constructive Trust
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Fiduciary Duty
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Costs