Preston and Baker (No.2)
[2012] FMCAfam 341
•17 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRESTON & BAKER (No.2) | [2012] FMCAfam 341 |
| FAMILY LAW – Property – de facto relationship of 11 months – one child of the relationship – one infant child brought into relationship by the applicant – where applicant brought the vast majority of the assets into the relationship – where applicant supported infant child of relationship – where the respondent’s financial contributions consisted of assistance with mortgage repayments – where respondent had exclusive use of the residence for 14 months whilst the applicant paid for all costs associated with the property including mortgage rates insurances and some utilities – where children are now living with the applicant and respondent having supervised time – order that the respondent receive 5% of the asset pool. |
| Family Law Act 1975, Part VIIIAB |
| Johnson & Johnson (2000) 201 CLR 488 Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) Norbis and Norbis (1986) 161 CLR 513 Russell & Russell (1999) FLC 92-877 VAK and AK [2005] FamCA 803 Mallett and Mallett (1984) 156 CLR 605 In the Marriage of Clausen (1995) 18 Fam LR 693 |
| Applicant: | MR PRESTON |
| First Respondent: | MS BAKER |
| File Number: | DNC 169 of 2011 |
| Judgment of: | L.Turner FM |
| Hearing dates: | 19 & 20 March 2012 |
| Date of Last Submission: | 20 March 2012 |
| Delivered at: | Darwin |
| Delivered on: | 17 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Farmer |
| Solicitors for the Applicant: | Withnalls Lawyers |
| The Respondent: | In Person |
PROPERTY ORDERS
That within 60 days from the date hereof the applicant pay to the respondent the sum of $20,150 less:-
(a)Any monies paid by the applicant for outstanding child care fees for the child [X]; and /or
(b)Any monies currently outstanding as of 4 April 2012 for child care fees for the child [X].
That each party is solely entitled to the exclusion of the other to all property and chattels of whatsoever kind and nature including real estate, shares, bank accounts, insurance policies and superannuation in their name.
That each party be solely liable for and indemnify the other against any liabilities in their names, including any credit cards and any liabilities encumbering any item of property to which that party is entitled to pursuant to these orders.
IT IS NOTED that publication of this judgment under the pseudonym Preston & Baker (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 169 of 2011
| MR PRESTON |
Applicant
And
| MS BAKER |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties commenced cohabitation in October 2009 with a finding in the children’s matters that separation occurred in September 2010.
There are two children. The parties have one child of the relationship, [X] who turns two in June. [Y], a child from the respondent’s previous relationship is aged three and a half.
From separation until April 2012 the children lived with the respondent.
The children as per court orders now live with the applicant and spend supervised time with the respondent.
The applicant is seeking orders for each party to retain what they have in their possession by way of property settlement.
The respondent is seeking a payment of $60,000 in addition to each party retaining what property is in their possession.
Further the respondent is seeking the return of certain household items.
The respondent’s affidavits are minimal on the property issues but it does not appear to be disputed that the current property pool consists of the following:-
Non Superannuation Assets $ Property F
$700,000
Share portfolio
$380,100
Boat
$10,000
Kia motor vehicle
$15,000
Household contents
$15,000
Total non superannuation assets
$1,120,100
Superannuation Assets $ [N] Superannuation Fund
$386,880
[R] Superannuation Fund
$41,098
Total superannuation assets
$427,978
Total asset pool 1,548,078 Liabilities $ Mortgage
$297,000
Loan accounts
$272,000
Car loan
$14,391
Amex MasterCard
$2,862
Total liabilities
$586,253
TOTAL NET PROPERTY POOL
$961,825
Issues
The issues that I am therefore required to determine are:-
a)What is the property pool available for distribution?
b)What is the appropriate division of the property pool taking into account the four step approach?
c)What is the impact of this division on the parties?
d)Is this division just and equitable?
e)Additional issues.
As the respondent was not legally represented, the process of the hearing was explained in accordance with Johnson & Johnson (2000) 201 CLR 488.
At the conclusion of the hearing, as the respondent was quite distressed, the respondent was given an opportunity to provide written submissions at a later date, which she did.
The written submissions however failed to address the property issues, focussing on the children’s matters which have now been determined.
In addressing each of the issues I have:-
a)considered and read all the material as marked in the court file;
b)considered and read the exhibits;
c)adopted an asset to asset approach in dealing with the property pool;
d)considered the relevant sections of Part VIIIAB Family Law Act as to financial matters relating to de facto relationships;
e)considered the four step approach as discussed by the Full Court Hickey v Hickey & Attorney-General of the Commonwealth (Intervener);
f)adopted the approach as to how to consider contributions as discussed by the High Court in Norbis and Norbis (1986) 161 CLR 513;
g)ensured that the orders made are just and equitable in accordance with the principles in Russell & Russell (1999) FLC 92-877;
h)expressed my findings as a percentage division as recommended in VAK and AK [2005] FamCA 803; Mallett and Mallett (1984) 156 CLR 605; and In the Marriage of Clausen (1995) 18 Fam LR 693.
Findings of fact are made on the balance of probabilities, having regard to the evidence and in what follows statements of fact constitute findings of fact.
What is the property pool available for distribution?
This was a very short relationship of some 11 months.
The applicant brought in at the commencement of the relationship the following property:-
a)The [F] property and associated mortgage;
b)The share portfolio and the associated loans;
c)A boat;
d)His superannuation fund with [N];
e)The bulk of the household contents.
The applicant brought in at the commencement of the relationship the following property:-
a)A Ford motor vehicle which is no longer in the respondent’s possession. The Kia motor vehicle and the associated car loan were acquired post separation;
b)The Amex MasterCard of which the respondent has had exclusive use;
c)Her superannuation fund with Rest;
d)Limited household contents.
On the respondent’s admission the only financial contributions made by the respondent during the period of cohabitation was day to day living expenses of $500 per fortnight, which were met equally by the applicant and $400 per fortnight towards the mortgage repayments on the [F] property.
Conclusion
As this was a such a short relationship, and considering the nature of the financial contributions made by the respondent and that some of the assets and liabilities have been acquired post separation I find that the property pool available for distribution consists of the following:-
Assets $ Property F
$700,000
Total assets
$700,000
Liabilities $ Mortgage
$297,000
Total liabilities
$297,000
TOTAL NET PROPERTY POOL
$403,000
As to the issue of return of certain household items by the applicant to the respondent, this will be addressed later in the judgment.
What is the appropriate division of the property pool taking into account the four step approach?
The applicant is of the view that each party should walk away with what they have and that there should be no division of property.
The respondent wants $60,000 although was unable to articulate as to why such a payment would be just and equitable.
Because of the unusual nature of this matter I have taken an overall approach in determining division.
Conclusion
I find having considered all the material that the wife is entitled to 5 % of the asset pool for the following reasons:-
a)The relationship was brief lasting 11 months;
b)The applicant brought in the vast majority of the assets including the [F] property where the parties lived with the respondent’s child [Y] and later with [X];
c)The respondent brought in minimal property;
d)Both parties earned healthy incomes during the marriage with the respondent receiving maternity leave and holiday pay for the majority of time the respondent was absent from work;
e)The applicant supported [Y] financially throughout the relationship as child support was not been pursued by the respondent from her biological father;
f)The applicant has and continues to treat [Y] as his child, with [Y] and [X] now in his primary care;
g)The parties during the relationship both cared for the children, with [Y] being in fulltime child care;
h)The applicant has financially contributed to [X] since November 2010, firstly paying all child care fees and then money in accordance with a child support assessment;
i)The respondent had the primary care of the children from separation to April 2012 when the court ordered for the children to live with the applicant. The involvement of the applicant with the children when living with the respondent was restricted by the respondent;
j)The extent of the respondent’s financial contribution to the property was the payment of $400 per fortnight towards the [F] property mortgage such payment ceasing in August/September 2010;
k)At the conclusion of the relationship the respondent for some fourteen months until an exclusive occupancy order was made in the applicant’s favour in November 2011, had sole use of the [F] property;
l)During this time the applicant met all costs associated with the property including all mortgage repayments, rates, insurance costs, and internet and landline telephone bills as well as meeting his child support commitments in respect to [X];
m)During this time the respondent had exclusive use of her income and the respondent contributed nothing to the property;
n)Whilst there is some disparity in the parties’ income with the applicant on more income and better conditions than the respondent, the applicant now has the primary care for the two young children, with financial contributions by the respondent into the future an uncertainty;
o)Further the respondent admits that there is potential for her to earn a greater income in her profession as a [omitted] if she chooses to leave her current [omitted] employment.
What is the impact of this division on the parties?
The adjustment is 5% to the respondent and 95% to the applicant.
On the pool totalling $403,000, consisting of the [F] property and the associated mortgage, this requires the applicant to pay to the respondent the sum of $20,150.
Is this division just and equitable?
I find that the percentage adjustment is just and equitable for the following reasons:-
a)This was a short marriage with the vast majority of the assets being brought into the relationship by the applicant;
b)The applicant contributed to the care, welfare and development of [Y] during the relationship;
c)The respondent made financial contribution to the mortgage repayments during the relationship;
d)The respondent had the care of the children at the conclusion of the relationship until April 2012;
e)For some fourteen months after the relationship ended the respondent lived in rent free accommodation, receiving financial assistance for one child and having the exclusive use of her income;
f)The children are now in the primary care of the applicant, with the respondent to have supervised time with the children for two hours a week;
g)The respondent asset wise is financially in a better position than when she entered the relationship with the payment of monies by the applicant to the respondent;
h)Whilst the applicant may argue that he is in a worse financial situation now when compared to when the relationship commenced, the applicant is no longer required to meet child support obligations and if he chooses to do so can pursue child support from the respondent.
Additional issues
The first additional issue is the non payment by the respondent of child care fees.
From November 2010 until December 2011 the applicant paid all child care fees for [X].
In December 2011 the respondent obtained a child support assessment, requiring the applicant to pay her monies direct in lieu of child care fees in accordance with the assessment.
The respondent chose not to enlist the Child Support Agency in the collection of the payments.
In December 2011 the applicant paid the respondent a lump sum of $5,000 equating to approximately eight months of child support.
I accept the applicant’s evidence that this amount was paid on the understanding that the respondent meet all future child care fees for [X], the account for which is in the name of the applicant.
The respondent is in arrears in excess of over $2,800 and the applicant is concerned that the respondent will not attend to payment.
In order to provide the applicant with piece of mind that the account has been paid, I have included in the orders provision for the applicant to pay all outstanding fees from the cash payment of $20,150.
Further if by the time of delivery of this judgment the applicant has paid any or all of the fees, then orders have been made to enable the applicant to be reimbursed for such payment.
The second additional issue is the division of the household goods.
There has been to date a division with the respondent receiving various items from the applicant.
I accept the applicant’s evidence that to date this has been a laborious process with the respondent being very specific as to the items she required from the applicant.
I further accept the applicant’s evidence that he has complied with the requests to date.
At the date of hearing the respondent produced another list (Exhibit “H”) which makes reference to such items as baking trays, Tupperware and fishing tackle.
The applicant indicated that he may be a position to return some of the requested items.
In the absence of any specific evidence and submissions as to why certain items are to be returned, I am not prepared to make any findings in respect to whether any further items are to be returned.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of L.Turner FM
Date: 17 April 2012
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