Scott and Scott

[2007] FamCA 180

FAMILY COURT OF AUSTRALIA

SCOTT & SCOTT [2007] FamCA 180

FAMILY LAW - CHILDREN - Parenting orders - With whom a child lives - With whom a child spends time
FAMILY LAW - PROPERTY - Settlement in relation to marriage

APPLICANT: MRS SCOTT

RESPONDENT: MR SCOTT

FILE NUMBER: HBF 622 of 2006

DATE DELIVERED: 27 February 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 27 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Gregg

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. THAT all previous parenting orders be discharged.

   IT IS NOTED

2. THAT this is a matter to which the presumption under s61DA does not apply the presumption having been rebutted under s61DA(4) of the Family Law Act.

   IT IS FURTHER ORDERED

3. THAT

   the children, a daughter born in July 1998 and a son born

   
   

   in September 2001 (“the children”) live with the wife.

4. THAT the children spend time with the husband at such time and on such dates as agreed between the parties in writing from time to time.

5. THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

6. THAT as at the date of this order the husband transfer all his right, title and interest in the $15,100.00 held in trust (being the balance of proceeds of sale of the property at D in Tasmania) to the wife and in that respect the court appoints the wife to sign all documents and authorities to F & B to give rise to release of those funds and accounting of those funds to her.

7. THAT paragraphs 6(a) and (b) inclusive of this order are binding on the trustee of the U Limited Superannuation Fund (the fund) and it is declared that this order is made in accordance with Section 90MS(1) of the Family Law Act 1975;

   a.That pursuant to Section 90MT(4) of the Family Law Act 1975 the base amount allocated to the wife in these proceedings out of the interest of the Husband in these proceedings in the fund is $8,000.00 (“the base amount”);

   b.That in accordance with Section 90MT(1)(a) of the Family Law Act 1975, whenever the Trustee of the fund makes a splittable payment from the interest of the Husband in the fund, the wife shall be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 (“the regulations”) using the base amount and there will be a corresponding reduction in the entitlement of the Husband to whom the splittable payment would have been made but for this order;

   c.That paragraph 6(b) has effect from the operative time;

   d.The operative time for the purposes of paragraph 6(c) of this order is 28 business days after the date of service of this order upon the Trustee of the fund

8. THAT the Husband shall, within 14 days of becoming entitled to receive a superannuation benefit from the fund, provide to the Trustee of the fund all such forms as shall be necessary to enable it to determine the nature and quantum of the superannuation entitlement and any other related information it might reasonably require.

9. THAT there be liberty to apply to each party and the Trustee of the fund in relation to the implementation of this order affecting the superannuation interest.

10. THAT until such time as the superannuation split to the Wife pursuant to this order can be rolled over into a separate account to the wife;

11. THAT the Husband shall provide to the respondent no less than 28 days notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason except or become entitled to access in whole or in part his entitlement from the fund;

    (a)   The Husband shall direct and authorise the Trustee of the fund to communicate with the Wife and/or any person authorised by her in writing:

    (i)to answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the fund; and

    (ii)to provide to the Wife and/or authorised representative a copy of any notice of any application or request by the Husband which seeks release of entitlement in the fund in so far as that release may effect the Wife’s entitlement in the fund pursuant to this order;

    (c)The Husband by himself, his servants and/or agents are hereby restrained from doing any act or thing which would prevent the Wife, her heirs, executors, administrators or nominees from receiving the benefits in the fund to which she is entitled pursuant to this order;

12. THAT in the event that the superannuation split to the Wife pursuant to this order can be rolled over into a separate account to the Wife, each of the parties hereto shall each do all such acts and things and execute all such documents as may be necessary to facilitate and implement that rollover.

13. THAT the Husband pay to the Wife the sum of $29,325.00 within twenty eight days of the date of this order.

14. THAT the Husband relinquishes in favour of the Wife, any claim he may otherwise have to an interest in the following:

    a.The furniture and contents in the possession or control of the Wife;

    b.Any monies at banks, credit unions, savings accounts or assets in the sole name of the Wife, except as otherwise provided herein;

    c.Any motor vehicle currently in the possession or control of the Wife, to the intent that the Wife be the sole absolute legal owner thereof;

    d.Any entitlement of the Wife to any superannuation, whether by lump sum, pension or otherwise;

15. THAT subject to the terms of this Order, each of the parties be liable for any debt in his or her name and indemnify the other party in relation thereto.

16. THAT this matter be removed from the list of cases requiring determination.

17. THAT 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.

18. THAT leave be given to the husband to apply within twenty eight days of the making of this order.

19. THAT the husband pay to the wife costs in the sum of $1,065.00 within twenty eights days from the date of these orders.

    IT IS DIRECTED

20. THAT the solicitor for the wife forward to the husband a sealed copy of these orders by ordinary pre-paid post to his address at N within fourteen days from the date of this order.

    IT IS CERTIFIED

21. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF622 of 2006

MR SCOTT

Applicant

And

MRS SCOTT

Respondent

REASONS FOR JUDGMENT  

1. This is an application by the wife for property orders and parenting orders and the matter is being heard on an undefended basis today, the husband not participating in these proceedings.

2. The wife seeks orders as set out in her further amended response to an application filed 19 February 2007.  The proceedings have a long and difficult history, having commenced on 24 February 2006. 

3. Consent orders were made in relation to parenting on 27 March 2006 restraining the wife, I think it was, from attending C School.  The matter came back before the court on 27 March when the interim applications were dismissed.

4. The matter went before a registrar on 17 May where Ms Gregg appeared for the wife and Mr Foster for the husband.  It was adjourned to 24 May.  On 24 May it was adjourned to 19 June with the same representatives.  On 19 June it came before me where I made an order restraining the disposal of $55,000 available to the husband from the State Credit Union and the sum of $6000 paid to him by the R.  From the evidence before me it appears that this money was not secured and has, as I understand it, disappeared. 

5. The matter came back before me on 24 July where leave was given to inspect documents from P Lawyers.  It went before a registrar of this court on 23 August 2006 at which time the husband appeared in person.  It came back before the court on 20 September 2006 when Mr Robinson appeared for the husband.

6. The matter came back before the court on the 21st where Ms Rebecca Brown appeared for the husband.  It came back before the court on 31 January and on that occasion there was no appearance by the husband.

7. It came before me yesterday, at which time the husband apparently hand delivered a letter to the court saying:

   I, [Mr Scott], will not be able to attend the hearing today due to substantial work commitments and lack of notice as to when the court date was to be.  Could you please excuse my non-attendance and ask [the wife’s] representative to reschedule the hearing to give me sufficient time to arrange a counsel.

8. I made orders requiring a letter to be sent to the husband indicating the matter was to be heard today and I endeavoured to call him from court yesterday.  There is before me an affidavit sworn by Ms Gregg which deposes, and I accept, that on 3 January a letter was sent to the husband and he responded through email on 22 January.

9. On 30 January a letter was sent to [the husband] at his address at N, which was the address he said was his address for service, by notice of address for service filed 17 January 2007, informing him that the matter was listed before a registrar on 31 January 2007.

10. A further letter was sent to him on 1 February saying the matter had been listed before me on 26 February 2007 and that the matter could be heard in his absence.

11. On 19 February a further letter was sent to the husband indicating the matter was on yesterday and a letter was hand delivered to him yesterday indicating the matter would be heard today.

12. People are entitled to an opportunity to present their cases in court.  They are not entitled to use the court processes as a way to delay the outcome of proceedings. 

13. I infer from the evidence before me that the husband does not seriously wish to participate in these proceedings.  Accordingly they will proceed in his absence.

14. In terms of the children's orders, the wife seeks orders that the children, a daughter aged six and a son aged five, live with her.  She seeks orders that the children spend time with the husband as arranged between the parties and that changeover occur at the Children's Contact Service.

15. In support of that application the wife relies upon her affidavit of 19 February 2007.  

16. In relation to children, the factual background is this, it seems:  the wife is aged 30, the husband is aged 35.  The parties met in the United Kingdom in 1997, married in December 2000 and moved to Australia in 2001.  The parties separated in February 2006, tried a brief reconciliation and then finally separated in late February 2006.

17. The children live with the wife and spend time with the father, although the time they spend with the father is somewhat difficult as he is not readily accessible to the wife.

18. From the evidence before me it is clear that the wife is the principal carer of the children and has encouraged some relationship between the children and their father.

19. The children are at an age where I ought not to have regard to their views.  As I have indicated, the wife is the primary carer of the children and the father sees them from time to time.  The evidence is not clear as to the extent of his relationship with them apart from spending time, but there is no criticism of him by the wife.

20. The wife on the material seems willing to encourage the children's relationship with the husband, although with limited contact between the parties at the time the children are handed over and returned.

21. There is to be no change in the children's circumstances and the only expense with regard to the time the children spend with the husband relates to the costs of the contact centre and the time availability.

22. I note now that the changeover is to occur at the wife's residence.

23. I have had regard to all of the matters under section 60CC.  Firstly, because of the poor communication between the parties, having regard to those matters it seems to me that there ought not to be an order for equal shared parental responsibility in respect of this matter.  I intend to leave in place the status as is created under section 61C of the act.

24. I will make an order that the children live with the mother and spend time with the father and give leave for him to apply.  I do not need to give leave, but he can apply at any time to have that determined in a specific manner.

25. In terms of the property, I note the factual matters set out by the wife in her said affidavit.  The property seems to fall into a number of areas.  The first is the proceeds of sale of the matrimonial property of some $15,100.  The second is the sum of approximately $41,000 drawn by the husband against the mortgage without the knowledge or consent - the money that was deposited in the husband's account following separation, of which no explanation has been given as to its use, plus the sum of about $6000 which was an insurance claim in relation to a motor vehicle.

26. These total some $62,000.  In addition, each of the parties has a motor vehicle.  The wife proposes that her motor vehicle, a 1986 Holden Berina, has a value of $500.  She also has furniture and effects which she deposes has a value of $1000.

27. The wife has a superannuation entitlement with H of some $600.  The husband has a motor vehicle and we are not sure of the value of that motor vehicle.  He also has entitlements with regard to U and a letter of 17 August 2006 shows that this accumulation fund had a value at 18 July 2006 at $8048.74.  That is the pool of assets to which I must have regard.

28. In terms of the history of contribution, that is set out in paragraphs 8 through to 55 in the affidavit of the wife sworn 17 May 2006, which is annexed to the primary application which I have referred to above.

29. I am satisfied that the parties have made equal contributions to the pool of assets, that pool of which totals, as I said, some $62,000, plus a superannuation of $8600.

30. In terms of the other factors under section 79, the wife has the care of two young children and wishes to continue in her role as homemaker and parent.  She receives a parenting payment and family tax benefit of about $500 per week, but only receives child support in the sum of some $6 per week.

31. The husband had the capacity to work with the University in the agriculture department earning some $27,000 per year but the wife is not aware of his current employment or why he is not in employment.  There seems to be no reason why there ought not to be an adjustment in favour of the wife. 

32. One of the things I need to take into account is that the wife seeks reimbursement of the sum of some $32,000.  I made an order requiring the freezing of those funds and that did not, as I understand the evidence, occur.  So there is a significant likelihood that the $32,000 that the mother seeks will never be collected. 

DISCUSSION

1. The wife seeks an adjustment of some 75 per cent of the pool, although the number she seeks is somewhat beyond that.  This would be on the basis that there is a 25 per cent adjustment in her favour in regard to the other factors.

2. On the basis of the evidence before me I am satisfied that that adjustment is appropriate in favour of the wife and considering all of those matters it seems just and equitable that the property be adjusted on that basis.

3. Therefore if I carefully list the pool, excluding the cars and furniture which seem to have been divided roughly equally between the parties, it is made up of:

   a)money drawn against the bank account which was acquired from the mortgage, $41,000;

   b)money invested from the sale of the property, $15,100;

   c)proceeds of insurance claim of $6000;

   d)$62,100;

   e)and superannuation, $8600.

4. Because of the small pool of superannuation I intend to treat them as a single pool; meaning that the total pool is some $70,700 and 75 per cent of that pool is some $53,025.

5. The wife would be entitled to $15,100 held in trust, a superannuation of $8600, which gives a balance of $23,700 and means that the amount payable to the wife is some $29,325.

6. Accordingly I make the following orders in respect of the matter of Scott:

DISCUSSION

1. There was an application before me for costs in relation to both the property and the parenting proceedings. In that regard I am obliged to consider the matters set out in section 117 of the Family Law Act. The wife is legally aided and as I understand it the husband is not.

2. I have seen the financial circumstances of the wife and have discussed those in terms of my reasons.  She is in struggling financial circumstances. 

3. I have made comment about the conduct of the husband in these proceedings, in particular with regard to the removal of those funds and his cavalier approach to attending court and being involved in these proceedings.

4. The wife has been successful in the proceedings.  There is no evidence before me as to any offers that have been made.

5. Part of the proceedings of course relate to children and as I understand it there are three areas of cost.  One is $1955, which is the property cost as such, of which $345 related to conveyancing, which I propose to ignore.

6. So the costs of the property proceedings are $1650, plus the cost of a process server to let the husband know that the proceedings were on today, which I would imagine would be in the vicinity of 70 or $80.

7. The second is the costs in respect of the children's proceedings which is some $1558.

8. The children's proceedings are in a slightly different position to property proceedings.  Exercising that broad discretion I do not intend to order the husband to pay the costs in respect of the children's proceedings.  However, I do intend to order him, for the reasons set out, to pay the costs in the property proceedings of $1615 plus $50 estimated fees for the process server, making a total of $1665.

I certify that the preceding 46 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:   

Date:   27 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SCOTT & SCOTT