Pitman and Pitman

[2017] FamCA 469

FAMILY COURT OF AUSTRALIA

PITMAN & PITMAN [2017] FamCA 469

FAMILY LAW – PROPERTY – Application by husband seeking a division of matrimonial property – Short marriage – Contributions - Application dealt with in the absence of wife in circumstances where the Court is satisfied that the wife had notice of the proceedings - Orders for an adjustment of property in circumstances where the Court is satisfied that it is just and equitable to do so – Where husband receives 90 per cent and wife receives 10 per cent

Family Law Act 1975 (Cth)

Bevan & Bevan (2013) FLC 93-545
Chapman & Chapman [2014] FamCAFC 91
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Mr Pitman

RESPONDENT: Ms Pitman

FILE NUMBER: LNC 187 of 2016

DATE DELIVERED: 23 March 2017

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 23 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Welch

SOLICITOR FOR THE APPLICANT: Philip Welch Barristers & Solicitors

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. Within seven (7) days of the date of this order the husband shall authorise and request the legal firm B Lawyers that upon completion of the Contract for Sale as between the husband and Ms C and Mr D in respect of the property situate at and known as E Street, F Town in Tasmania to apply the proceeds of sale of the property in the following manner and priority:-

   (a)payment of the agents commission, advertising or expenses, if any, payable on the sale;

   (b)payment of any council rates, water rates and land tax;

   (c)payment of legal costs, fees and outlays in relation to the sale; and

   (d)balance proceeds of sale to be divided as follows:-

   i.as to 90 per cent thereof to the husband; and

   ii.as to 10 per cent thereof to the wife.

2. There liberty to apply within a period of six (6) calendar months from the date of these orders for further directions regarding the sale of the property generally.

3. The wife shall have no claim to or right to the following:-

   (a)household furniture and effects formerly used by the parties jointly but now in the possession or control of the husband;

   (b)motor vehicle in the possession of the husband;

   (c)tools in the possession of the husband; and

   (d)any monies at banks, credit unions, savings account or investments in the sole name of the husband.

4. The husband shall have no claim to or right to the following:-

   (a)any monies at banks, credit unions, savings account or investments in the sole name of the wife; and

   (b)in property of or in respect of which the wife has an interest, in Asia.

5. The parties shall each sign all necessary documents and do all acts and things reasonably required to give effect to the terms of these orders.

6. Unless otherwise specified in these orders:-

   (a)each party is solely entitled to the exclusion of the other to all other property or chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides a condition for payment out of such entitlement;

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

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

7. All extant applications are dismissed.

8. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS DIRECTED

1. A copy of these reasons be taken out and placed on the court file.

2. The solicitor for the applicant forward to my administrative associate within one (1) business day a word version of the amended application filed 9 March 2017.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Pitman & Pitman 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 HOBART

FILE NUMBER: HBC 187 of 2016

Mr Pitman

Applicant

And

Ms Pitman

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application by Mr Pitman (‘the husband’) for a property adjustment in relation to the failure of his marriage to Ms Pitman (‘the wife’).  The proceedings are for a property adjustment following a short marriage, and in circumstances where the couple are relatively old. 

2. The issues seem to fall into a number of areas:-

   (1)Whether the respondent is on notice;

   (2)If on notice, whether she has the cognitive ability to deal with the matter; and

   (3)If the Court determines that the matter should proceed, what is an appropriate adjustment of property?

3. The material upon which the husband relies is that attached to the file, that is:-

   (a)his initiating application filed 15 April 2016;

   (b)his financial statement filed 15 April 2016;

   (c)a notice of address for service filed 17 May 2016;

   (d)the notice of withdrawal as a lawyer filed 12 October 2016;

   (e)his trial affidavit filed 9 March 2017 (‘the husband’s trial affidavit’);

   (f)an amended initiating application filed the same day;[1] and

   (g)an affidavit of service filed 16 March 2017 showing that those latter two documents, being the amended initiating application and the affidavit of the husband were served upon the respondent on 9 March 2017.

   [1] Filed 9 March 2017.

4. The history in terms of the proceedings is as I have already indicated, that is, the matter was commenced on 15 April 2016 with the first return date on 7 June 2016.  It is not clear what happened on 7 June 2016 from the Court file, but it eventually came back before a Registrar on 29 August 2016, at which time the husband was represented by Mr Welch.  The wife was represented by Ms Higgins.  At that time the Court file notes that there may be an application for appointment of a case guardian by Ms Higgins, however that did not occur.  The matter then came back before the Registrar on 18 October 2016 and was adjourned to 9 November 2016 to consider an application for an undefended hearing.  The matter came before the Registrar on 9 November 2016 and was listed in front of the Registrar again.  Eventually on 1 March 2017 the Registrar directed that it be listed for an undefended hearing with a time estimate of 30 minutes.

5. The affidavit of the husband provides some history of notification to the wife up to the date of the affidavit which is 9 March 2017.  Following that date there is evidence through the affidavit of service that the respondent was served with the amended application and the affidavit. 

6. The social history of the parties is that the husband is aged 85 and the respondent is aged 75.  The husband and his previous wife, Ms G, owned property which is referred to in the amended initiating application as being a property at F Town in Tasmania, which has been sold.  That property was owned wholly by the husband although still registered partly in his previous wife’s name; his previous wife Ms G died in 2006. 

7. The husband and wife married in 2011.  In September 2015, they separated and have lived separately and apart since that time.

8. In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context in which it is given. 

9. The next question is one which was brought to my attention when I read the affidavit material and was properly and frankly addressed to me by counsel for the husband at the commencement of this hearing.  That is, the wife’s mental state, and whether she has the cognition to understand the nature and effect of these proceedings.  The husband quite properly sets out a history of what he regarded as some cognitive problems in respect of the wife, and annexes a number of documents, including a report from a Dr H and a report from Dr J.  However, none of those documents set out the full extent of the wife’s cognitive ability.  The wife clearly instructed a lawyer in May 2016.  That lawyer withdrew as her lawyer in October 2016 serving a notice of withdrawal as lawyer on the wife. .  This Court is an adversarial court, not an inquisitorial court.  The question of the cognition of the wife is a matter for her and those supporting her.  It is also obviously, in a jurisdiction such as this, if there are concerns they are to be raised by people such as the husband and he has done so.

10. Given all of the circumstances of which I have now been made aware and which have been set out in the affidavit and other material, I am not satisfied that any further investigation needs to be undertaken given that it would be not clear where that investigation ought to take the Court and is outside the role of the Court in that respect.  As I said earlier, I also satisfied that appropriate notice had been given to the wife, particularly since the withdrawal of her lawyer in 2016. 

THE LAW

1. It is s 79(2) of the Act that deals with the division of property of parties to a marriage. One of the preferred approaches used in determining such property disputes is a four step one which involves:-

   (a)The identification, in the context of ordinary legal principles, of the existing legal and equitable interest of the parties in the property;

   (b)consider any relevant contribution and other matters that should be taken into account under s 79(4)(a), (b) and (c) of the Act.

   (c)The evaluation of the matters referred to in s 79(4)(d), (e), (f) and (g) of the Act including the matters referred to under s.75(2) of the Act, and

   (d)A determination as to whether the result is just and equitable by reference to s 79(2) of the Act.

2. In Stanford v Stanford (2012) 247 CLR 108 the High Court confirmed that the first step requires the identification of the existing legal and equitable interests in property of the parties. Thereafter a Court must determine whether it is or is not just and equitable to make an order altering the parties’ property interests.

3. Often, given the circumstances of the parties that step will be uncontroversial; as is the case each party seeks orders for adjustment of existing property interests pursuant to the Act. In doing so the parties assert that it would be just and equitable for such orders to be made. These parties had ended their marriage and consequently their common use of property. That separation ended their assumptions, which underpinned their property arrangements up to the date of separation. Accordingly, I am satisfied that the just and equitable requirement in s 79(2) for the making of orders under s 79(4) is met.

4. This approach was later adopted in Bevan & Bevan[2], where Bryant CJ and Thackray J noted that the Stanford v Stanford (supra):-

   decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.[3]

   [2] (2013) FLC 93-545.

   [3] Ibid at para 65.

5. In Chapman v Chapman[4]the Full Court considered the independence of ss 79(2) and 79(4) and agreed that Bevan v Bevan correctly stated the law in relation to the Courts consideration of s 79(2), whether the making of an order is just and equitable. At paragraph 19 of their joint reasons Strickland and Murphy JJ confirmed:-

   Section 79 demands a consideration, separately, of all of its requirements without conflation. 

   [4] [2014] FamCAFC 91.

6. However, their Honours disagreed with any intention of plurality found in Bevan v Bevan, (supra) in that the Court must consider the matters in s 74(2) when addressing s 79(2) of the Family Law Act 1975 (Cth) (‘the Act’). This was in view of the opposite approach adopted by the High Court in Stanford.  Bryant CJ in a separate judgment noted:-

   Whatever differences may exist as to the meaning of [84] and [85] of Bevan, I am in agreement with Strickland and Murphy JJ that it is not a requirement to take account of the matters in s 79(4) when considering the question of whether it is just and equitable to make any order under s 79(2). But as long as they are seen as separate and not conflated, the factors in s 79(4) have the potential to inform the decision under s 79(2) …

7. I have not conflated the factors set out in s 79(2) with s 79(4).

8. In terms of the background, I have had regard to all of the material set out in the husband’s trial affidavit.  The present pool of property is the following:-[5]

   The approximate proceeds of sale of the [F Town] property, about $360,000.

   [5] At paragraph 10(a).

9. I am aware that the property has been sold and there will be costs associated with the sale of this otherwise unencumbered property.  From the contract it appears that the contract was dated 19 December 2016 and, as I understand, the sale price was $380,000.  After deduction of the costs on the sale presumably the net value would be $360,000.  In addition, the husband has furniture and effects which he says has a value of about $400, a motor vehicle with a value of $3,500, tools to the value of $200, and savings of $15,000.  He believes that the wife has property in Asia, and he puts a figure on the value, although that is not in any way evidence.

10. The husband, once the sale is completed, will have no liabilities.  He receives an life pension of about $161 per week and a part age pension of about $385 per week.  I am satisfied that this is the pool of property. 

11. In terms of contribution, this has been a short term marriage, the parties having been together for just shy of four years.  The husband brought in the overwhelming proportion of the property, including primarily in terms of his superannuation, which appears to be a defined benefit, and the home at F Town.

12. Not much changed over that period of time.  During the course of the marriage neither the wife nor the husband undertook paid employment.  The usual household expenses were paid by the husband.  In addition he paid for a number of tours on the mainland plus five three day tours in Tasmania and six one day tours in Tasmania.  He said the wife had no great need of clothing given the large quantity of clothing she brought in at the commencement of their cohabitation.  However, he said he bought her some clothing during the relationship.

13. The husband says, and I accept, that his contribution to the household was significant and that he did the bulk of the cooking.  He says she vacuumed three rooms and did her own washing of clothes.  He did his own washing of clothing and bedding and washed bedding for the wife.  He was solely responsible for work outside the home, including mowing the lawns and pruning shrubs and the like.  He undertook maintenance in respect of the home.

14. The husband says that he was generally in reasonable health and until about six months ago was able to walk five kilometres per day, seven days per week.  Unfortunately, that happy state has deteriorated in recent times.  In October 2015, shortly after the parties had separated, he had a pacemaker fitted.  He says that, apart from her occasional cognitive issues, the wife had no illnesses whilst they were together.  Given that evidence, I am satisfied that the husband has made the overwhelming proportion of contributions to the acquisition, retention and maintenance of property throughout that short marriage.

15. In terms of the other factors, I have had regard to the disparate property that each of the parties has and the income which the husband has in terms of his pension.  In his application the husband submits that each party should retain such of the property in their power or control, which would include for him the car, the tools, the furniture and the like, and for the wife the property in Asia.  In terms of the matrimonial home, the husband submits that there ought to be an adjustment in his favour to the extent of 90 per cent and 10 per cent to the wife.

16. Firstly, I need to consider whether there ought to be an adjustment of property at all.  It is the husband in this case who is making an application for an adjustment of property, in many ways against his own interests.  Given that circumstance, I am satisfied that it is just and equitable to consider an adjustment of property.  In terms of the adjustment sought by the husband, I am satisfied, given all of the circumstances, that 10 per cent to the wife is both fair and reasonable and also just and equitable given the circumstance of the parties.

17. I have reflected on all of the relevant factors regarding contribution and all of the relevant factors in relation to the so called future needs and I am satisfied that 10 per cent falls well within the range of adjustment to property.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 23 March 2017.

Associate:     

Date:              21 June 2017