Ransome and Ransome

[2014] FamCA 1139

FAMILY COURT OF AUSTRALIA

RANSOME & RANSOME [2014] FamCA 1139

FAMILY LAW – CHILDEN – Where the husband is in prison – Where the husband has sexually assaulted the parties’ children, the wife’s children from a previous marriage, and the wife’s grandson – Where the husband has engaged in family violence – Where the presumption of equal shared parental responsibility does not apply – Order made that the wife have sole parental responsibility for the children and the children live with the wife – Injunction on the husband contacting the children until further order.

FAMILY LAW – PROPERTY – Where the wife seeks an order be made by way of property adjustment – Where the wife made significant contributions in the role of homemaker and parent, made significantly more arduous by the husband’s conduct in relation to family violence and gambling – Where the wife will have the continuing responsibility for the financial support of the children – Where the wife does not receive child support from the husband – Just and equitable to make orders sought by the wife.

FAMIL LAW – COSTS – Where the wife seeks the husband pay her costs – Where the husband chose not to participate in the proceedings – Consideration of s117 of the Family Law Act 1975 (Cth) – Where the wife has been wholly successful in her application – Order for costs made.

APPLICANT: Ms Ransome

RESPONDENT: Mr Ransome

FILE NUMBER: SYC 2737 of 2014

DATE DELIVERED: 8 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 8 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Dawn Saxton & Associates

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The applicant wife have sole parental responsibility for the children J born … 2005, A born … 2006 and N born … 2007 (“the children”).

2. The children live with the wife.

3. Until further order of the court, the respondent husband be restrained by injunction, from contacting the children.

4. The proceeds of sale of the property at X Street, Suburb W, being all the land in certificate of title folio identifier …, of $60,989.75 be distributed as follows:

   4.1.as to 85% to the applicant; and

   4.2.as to 15% to the respondent.

5. The applicant be declared to be the sole legal and beneficial owner of all her right, title and interest in:

   5.1.all cash at bank and monies invested by her in her sole name;

   5.2.all furniture and personal effects in her possession;

   5.3.all her right, title and interest in respect of any superannuation entitlements received by the applicant and invested by her or on her behalf.

6. The respondent be declared to be the sole legal and beneficial owner of all his right, title and interest in:

   6.1.all cash at bank and monies invested by him in his sole name;

   6.2.all his right, title and interest in respect of any superannuation entitlements received by him and invested by him or on his behalf.

7. Unless otherwise specified in these orders and except for the purpose of enforcing the payment of any money due under these or any subsequent orders:

   7.1.Each party be solely entitled to the exclusion of the other in both law and in equity to all property (including choses-in-action) in the possession of such party as at the date of these orders.

   7.2.All insurance policies are hereto declared the sole property of the owner named therein.

   7.3.All superannuation policies are hereby declared the sole property of the person whose name the policy is in.

   7.4.Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which the party is entitled pursuant to these orders.

8. In the event of either party’s failure to sign any necessary documents or instruments or to do any such acts required or contemplated by these orders to be done with such failure continuing for fourteen (14) days of a written request, then the Registrar of the Family Court of Australia in pursuance of the powers conferred on him or her under Section 106A of the Family Law Act 1975 (Cth) as amended, shall have the power to execute any document or instruments in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these orders.

9. The husband pay the wife’s costs assessed in the sum of $13,602.16 within a period of one month and in the event that the husband fails to do so, the wife can issue a third party debt notice against the husband’s entitlement as held by her solicitor being the balance of proceeds of the W property sale after the wife receives her payment pursuant to these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ransome & Ransome has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2737 of 2014

Ms Ransome

Applicant

And

Mr Ransome

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the applicant wife seeks orders on a final basis as set out in her Initiating Application filed 8 May 2014.

2. The husband does not appear.  He is currently in prison.  The husband has been charged with aggravated indecent assault in respect of the wife’s grandson, O.  He is also charged on 11 counts of aggravated sexual assault, two counts of indecent assault, three counts of acts of indecency, one count of sexual assault in relation to Y who was a child of the wife from a previous marriage, aggravated sexual assault in respect of Z who was also a child of the wife from a previous marriage, and aggravated indecent assault in respect of each of the surviving children of the parties, J, A and N.

3. The disclosures which led to those charges being laid were initiated by disclosure made by O on 17 April 2012 and an admission by the husband in relation to the sexual assault, that admission being made to the wife.

4. A number of affidavits relating to service of relevant documentation have been relied upon.  They include affidavits of service filed on 25 August 2014, 27 August 2014, and 8 October 2014. 

5. Also provided to me today (which will be marked as Exhibit 1), is a letter by Dawn Saxton & Associates dated 20 October 2014 to the SCO at U Correctional Centre. That letter advises the husband of the listing today and the possible undefended hearing. There has been an acknowledgement that the husband has received that notification by a document which he has signed.  The exact date he signed this document in October is illegible, but he signed it in October 2014 and obviously after 20 October 2014.  I am satisfied that he has been given ample notice of these proceedings.  He has not filed any document in these proceedings. 

6. The relief that the wife seeks in relation to parenting matters is that an order be made for sole parental responsibility, that the children live with her and that until further order of the court the respondent husband be restrained by injunction from contacting the children. 

7. I do not have a great deal of evidence about the extent of the relationship between the husband and the children, but I have been informed today that the husband has been held in custody since the middle of 2012.  He apparently originally pleaded guilty to the charge in relation to O but has withdrawn that plea of guilty.  He has not yet had his criminal trial. 

8. The relationship of the parties was characterised by a significant degree of family violence and multiple separations.  It is not disputed that the wife has been the primary carer of J who is aged nine years old, A who is aged eight years old, and N who is aged seven years old, and was the primary carer for E from the time she was born until the time of her tragic death in 2010. 

9. The presumption of equal shared parental responsibility does not apply because of the level of family violence involved in the case.  The husband is currently incarcerated.  The wife does not seek a final order in relation to the children’s time with their father. She simply seeks that until some further order is made, he is not to see them. 

10. On the material that I have read, which is primarily the wife’s affidavit filed on 12 September 2014, I do not have any hesitation in finding that the orders that the wife seeks are in the best interests of the children and accordingly, I will make parenting orders in the terms sought.  

11. In relation to the application by the wife for property alteration, it is also appropriate given the breakdown of the parties’ relationship, that an order be made by way of property adjustment. The parties both had very little by way of assets when they got together in 1995.  The wife relies upon her contributions during the time the parties were together, particularly in the role of homemaker and parent, a role which she says, and I accept, was made significantly more arduous by the husband’s conduct, not only relation to family violence but also in relation to gambling. The wife also had significant difficulties with four pregnancies that ended in miscarriage. 

12. There were a number of separations and during those separations the wife had the children with her and was the person primarily responsible for their care.  The parties bought and sold a number of properties during the time they were together.  They ended up with a property at Suburb W which they purchased in 2010. 

13. The parties separated in April 2012.  At that time the W property was worth around $300,000 and it had a mortgage of about $223,000.  It is the only significant asset of the parties.  It was sold and the net proceeds of sale of $61,000 were placed into the wife’s solicitor’s trust account and it has remained there since November 2013. The capital has not earned any interest.  The wife’s application is that she receive 85 per cent of that amount.  The wife’s affidavit discloses some other information about other minor assets and liabilities which are of no great significance in my consideration.

14. The wife now lives in rented accommodation with the three youngest children.  She is employed as a cleaner and earns $500 a week and is studying with an aim of becoming an assistant in nursing, and to obtain a certificate in aged care.  She does not receive any child support from the husband who is incarcerated. 

15. The wife will have the continuing responsibility for the financial support of the children, who are currently aged nine, eight and seven. The children, because of the trauma that they have sustained, require ongoing counselling.

16. Given the amount of money that is left, I find the wife’s application is more than just and equitable to make orders for property settlement. I thus make orders generally in the terms sought by the wife in her application filed 8 May 2014.

17. The applicant has also made an application for costs in circumstances where the husband has chosen not to participate in the proceedings.

18. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that both parties would ordinarily pay their own costs. Section 117, subsection (2), says that the court may make a costs order that the court considers just.

19. Section 117(2A) of the Act contains the matters that I need to take into account. I have already alluded to the parlous state of the parties’ overall financial position. I do not know anything about the husband’s financial position, because he has not filed any material.

20. The applicant has been wholly successful in the applications that she has made. 

21. The applicant made an offer of settlement to the husband, which is set out in a letter to him dated 10 April 2014, which is addressed to solicitors who previously acted for him. I am satisfied that, as at 10 April 2014, the solicitors who were acting generally for the husband, including in relation to resolving financial matters with the applicant, but who had not yet obtained instructions specifically in relation to the asset pool, were provided with an offer addressed to their client where the wife agreed to divide the proceeds of the sale of the W property 80 per cent to herself, 20 per cent to the husband.  Had the husband accepted that offer, he would have done better than he has done as an outcome of this hearing. 

22. I find it is just that an order for costs be made in favour of the wife.

23. It would be inappropriate to put the parties to any further costs in relation to assessing costs. I accept Exhibit 2 contains itemised details of the wife’s reasonable costs.  Although there is no evidence that those documents have been served upon the husband, I accept that they set out the wife’s costs in accordance with the family law scale and that the items set out are reasonable. I make an order that the husband pay the wife the sum of $13,602.16 for the wife’s costs. If the husband fails to make the payment within one month, the wife can issue a third party debt notice against the husband’s entitlement as held by her solicitor being the balance of proceeds of the W property sale after the wife receives her payment pursuant to these orders.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 8 December 2014.

Associate: 

Date:  17.12.14