Short and Short

[2012] FamCA 892

FAMILY COURT OF AUSTRALIA

SHORT & SHORT [2012] FamCA 892

FAMILY LAW – CHILDREN – parental responsibility

Family Law Act 1975 (Cth)

Coghlan and Coghlan (2005) FLC 93-220

APPLICANT: Ms Short

RESPONDENT: Mr Short

FILE NUMBER: MLC 209 of 2012

DATE DELIVERED: 23 October 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Conlan

SOLICITOR FOR THE APPLICANT: Aboriginal Family Violence Prevention and Legal Service

THE RESPONDENT: No Appearance

Orders

1. That the wife have leave to proceed on an undefended basis.

2. That the wife have sole parental responsibility for the child B born … January 1999.

3. That the child live with the wife.

4. That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the husband’s interest in the CBUS Superannuation Fund, the wife shall be entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 using the base amount referred to below and there be a corresponding reduction in the entitlement of the husband Mr Short to whom the splittable payment would have been made but for these orders.

5. The base amount referred to in these orders is $37,000 which shall be allocated to the wife Ms Short out of the interest of the husband in the CBUS Superannuation Fund.

6. That these orders have effect four business days after the date of service of these orders upon the Trustee of the CBUS Superannuation Fund.

7. That these orders are binding on the Trustee of the CBUS Superannuation Fund.

8. To the extent that it is necessary to say so, if the entitlement of the wife in the CBUS Superannuation Fund can be rolled over into an account in her name and the husband is required to facilitate such roll-over, both the husband and the wife do all such things as may be necessary to give effect to these orders.

9. Pursuant to s 106A of the Family Law Act 1975 (Cth), a registrar of the Family Court of Australia is appointed for the purposes of signing all such documents in the name of the husband and doing all such things as are necessary to give effect to these orders.

10. Each party shall otherwise be entitled to the exclusion of the other and the other party relinquish any interest in, all assets in the possession of that party as at the date of these orders.

11. Each party be liable for and indemnify the other in respect of any liability in that person’s name as at the date of these orders.

12. That the wife serve upon the husband a sealed copy of these orders as follows:

    (a)    by registered post to the husband at…;

    (b)    by ordinary post to …; and

    (c)    by email to …

13. The husband shall have liberty to apply to set aside these orders for a period of 21 days after service of the orders as required above by the filing of an application in a case supported by an affidavit as to why he has not attended to any of the proceedings and/or hearings to date.

14. That save as aforesaid, all extant applications are otherwise dismissed.

15. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Short & Short 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 MELBOURNE

FILE NUMBER: MLC 209  of 2012

Ms Short

Applicant

And

Mr Short

Respondent

REASONS FOR JUDGMENT

1. These are my reasons for making orders between the husband and wife in financial proceedings in which the husband has not participated.

2. These are final orders subject to the proviso that the husband may apply within 21 days to set them aside if he has been unfairly excluded from that participation because of lack of knowledge of the hearing. On the evidence before me, all indicators point to the fact that he has chosen not to be involved.

3. The parties began living together in 1987 and married shortly after that. They have three children but only B is under 18 years. She is 13. The marriage ended with a separation in March 2010 and the parties are now divorced.

4. In January 2012, the wife commenced proceedings seeking orders to which I shall turn below. The husband consulted lawyers because in March 2012, a notice of address for service was filed on his behalf.

5. A preliminary hearing was conducted in June 2012 by a registrar at which both parties acknowledged their involvement in the proceedings by their respective lawyers. At their request, extensive orders were made involving both parenting and financial issues.  In respect of the child, no specific time was sought by the husband and that now appears consistent with the evidence of the wife that he has had nothing to do with her for a long time. The registrar then ordered a conciliation take place in August.

6. On 14 August 2012, there was no appearance by or on behalf of the husband but the registrar noted that the husband’s then solicitors had not been able to obtain instructions. Despite that, the solicitors remained on the Court’s record until October.

7. At the August hearing, the registrar made orders that the husband file and serve documents by 10 October and also appear on the allocated return date before me. The husband did not file any material nor attend the hearing.

8. On 15 October 2012, the solicitors for the husband filed a notice ceasing to act which advised the husband of their actions. The notice was addressed to the husband at an address in Western Australia and warned him of the hearing on 19 October. Not only did the husband not attend but no indication was received by the Court or by the wife’s lawyers of his consternation about the process.

9. I simply do not know whether he is ignoring the proceedings or is unaware of them possibly because of his current residential arrangements in the mining areas of Western Australia. Because of that uncertainty, I will give him liberty to apply.

10. In my view, all of the evidence in affidavit form suggests that the husband is deliberately avoiding the process and accordingly, the wife should no longer have to wait for him to respond. The wife may therefore proceed on an undefended basis.

11. Absent any involvement of the husband and his compliance with orders of the Court, his response filed 19 June 2012 is dismissed for want of prosecution.

12. I draw some comfort from the position of the husband as indicated in the documents filed by his then-lawyers in early 2012.

13. The wife’s initiating application sought orders that she have sole parental responsibility and that the child live with her. In his response, the husband said he did not oppose those orders. Consistent with that approach, the husband has made no further contact with the child since. Further, in respect of property orders, the wife sought a sale of the real property in which the parties had lived and that she retain the net proceeds.  The husband’s response agreed.

14. Where the parties were at odds concerned superannuation. The wife sought a superannuation splitting order in her initiating application. She asked for “70%” of that. The husband’s response was that she could have “50%”. It will thus be evident that in respect of property matters, the dispute was of a very narrow compass.

15. The wife also sought a child support departure order from the administrative assessment of child support such that the husband pay her $3,000 per calendar month. Her position as outlined in a set of proposed orders was $2,000 per calendar month plus various school expenses. For the reasons which follow, I do not have sufficient evidence that would enable me to make such an order and I consider it appropriate to leave the clarification of the husband’s financial position to the Child Support Agency because it would seem he may be unemployed.

16. In that same respect, the wife set out a claim for spousal maintenance but that was abandoned on the basis that there is no evidence as to what the husband is currently doing.

17. I turn first to the parenting issues of sole parental responsibility and residence of the child.

18. Leaving aside the apparent lack of interest by the husband, all of the evidence of the wife as set out in her affidavit filed 24 September 2012 suggests that the child is healthy and progressing well in life. Nothing suggests she is disadvantaged by the absence of the husband.

19. The evidence in the affidavit appears to have been provided to the husband at least through his lawyers and to that extent, the facts of this case are undisputed.

20. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects and principles underlying the parenting provisions in Part VII which direct a Court what matters are to be taken into consideration in making any orders which are undoubtedly discretionary. The objects require the Court’s consideration of meeting the best interests of the children by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. Because of the absence of the husband, that would not seem possible here.

21. Equally importantly, the objects require the Court to consider ways of ensuring children receive adequate and proper parenting as well as ensuring that parents fulfil their duties and meet their responsibilities concerning the children. Again, that is not happening here from the husband’s perspective and there is no explanation why that might be the case. That is important because s 60B sets out the various principles underlying the legislative objects. They are that children have the right to know and be cared for by both parents as well as the right to spend time on a regular basis with and communicate with both parents. It will now be self-evident that the absence of involvement of the husband means that the child is not having the opportunity to have the community’s expectations met.

22. The legislative principles are extended to include parents jointly sharing duties and responsibilities concerning children as well as agreeing about the future parenting of their children. In this case, the wife alone is making those decisions and bearing that burden and there is nothing in the evidence that would indicate that she is doing anything other than a proper and appropriate job.

23. Section 60CA requires that when a court is deciding whether to make a parenting order, it must regard the best interests of the child as the paramount consideration. That consideration is guided by the provisions of s 60CC. I have taken all of those into account here in the absence of evidence from the husband.

24. I am satisfied that it is in the best interests of the child that the wife have sole responsibility for decisions about her welfare and general development and that she should have that daily parenting responsibility as well. The husband had agreed to those orders and has shown no subsequent interest. Despite that, I am satisfied that it is in this child’s interests for the matters to be finalised in the way the parties had agreed.

25. I turn then to property matters.

26. The wife relied upon an affidavit filed on 24 September. A large portion was inadmissible because it was hearsay or opinion and I have ignored that.  Some statements were made on the basis of facts gleaned from material produced under subpoena which should have been provided by the husband. In respect of evidence obtained from business records, I have endeavoured to ensure that it is admissible. The rules of evidence still apply to an undefended proceeding.

27. The evidence of the wife set out a table of assets and liabilities as she saw it including the values associated with the items set out there. I am satisfied that there is largely no equity in any of the assets.

28. I am satisfied that the husband has superannuation by his own admission in the documents filed on his behalf and upon the material of the wife corroborated by the subpoenaed material. That superannuation totals just over $76,000.

29. In her affidavit filed 11 January 2012, the wife set out the history relating to the contributions of them both. They were unremarkable. There were no pre-relationship contributions of substance nor anything during the marriage to suggest that one party did more than the other to warrant a particular adjustment.

30. The wife’s evidence pointed to a history of criminal activity of the husband and violence towards her none of which was linked to her role as a contributor nor did it indicate that the assets of the parties were affected by it.

31. During the marriage, the wife was the major homemaker and parent but she also worked and made a financial contribution. Subsequent to the separation, the wife has had the sole responsibility for the child. The wife deposed to the high-earning capacity of the husband as a tradesman in the mining area whilst at the same time referring to his having been retrenched. He may currently be unemployed.

32. The Court is required by s 79 of the Act only to make an order if it is satisfied that it is just and equitable to do so. To make that discretionary determination, the Court is required by s 79(4) to take into account a number of matters relating not only to the respective contributions but also all of the matters that are relevant in s 75(2) and also the child support contributions.

33. The husband did not oppose the orders other than that relating to superannuation. I am uncertain why he would adopt the view that that property should have been divided equally but as he has now had his response dismissed, I am left to do the best I can. Superannuation for the wife will probably be the only financial thing that is taken away from this marriage relationship and it may give her some comfort in retirement.

34. Superannuation was described as another species of property by this Court in Coghlan and Coghlan (2005) FLC 93-220 but the approach to its division is the same as any other property. The Court may approach all of that property on a “one Pool” or “two pool” basis. In the same way, a Court has the discretion to approach various assets either globally or on an asset-by-asset basis. Here, there is nothing unusual about the limited assets that the parties have and the approach should be a global one. In respect of the superannuation, in my view, the approach about “pools” depends upon the age of the parties and how close to being able to convert that property into cash they are. Here, there is a long way to retirement for both parties. However, the superannuation in the hands of the husband which has accrued as a result of his various positions of employment is the only significant financial resource coming from the relationship. The contribution of the wife both in respect of the non-superannuation and the superannuation has been exactly the same. Whilst the husband worked in employment and accrued the superannuation retirement entitlements, the wife fulfilled a significant homemaker and parent role. There is therefore no distinction on the evidence between their respective contributions until separation. That position must alter subsequent to separation where the wife not only has had the sole responsibility for the physical care of the child under 18 years but also has taken on the financial role also without assistance from the husband. There is some significance in that because the husband had a high-earning position in a trade working in the mining industry. If he is now out of work, he has not made his position known so I am entitled to conclude that in the future, he will go back to some form of similar employment.

35. The usual approach to these cases is to define the respective contributions on a percentage basis but where the property is minimal and of little immediate use to the parties in the form of superannuation, that is very artificial. It is not mandatory to make a determination on a percentage basis and this is a case where I should decline to do so. It is important to make a finding as to the parties’ contributions and I do so on the basis that the wife’s contributions in respect of the superannuation and non-superannuation assets exceed those of the husband.

36. The next step is to examine the matters set out in s 75(2) which is a series of factors that the Court must consider relating to the future circumstances of the parties. The husband has failed to indicate what his financial position is and I am left with the evidence of the wife. She has returned to study and is dependent upon government benefits and receives no child support. She has the care of a child under 18 years. She has limited immediate employment prospects although seems to have a determination to succeed in the future. Absent any information about the husband other than that he has a trade and seems to be living in the mining area which is well known to have prosperous opportunities, I can only determine this matter on the evidence provided. A consideration of the factors warrants an adjustment in favour of the wife.

37. The wife sought a set sum of $37,000 out of the husband’s superannuation entitlements with CBUS and the trustee was served with appropriate notice. The wife has set the parameters of the discretionary exercise and having regard to what she now seeks and the nature of the remaining assets which appear mostly to be liabilities, I am content to make those orders. In my view, they are just and equitable.

38. As earlier mentioned, the wife did not pursue her application for spousal maintenance but she did seek a departure order. There is insufficient evidence before me to justify any such departure but the wife can always pursue that issue in the agency’s domain. I propose to dismiss that part of the application.

I certify that the preceding Thirty Eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 October 2012.

Associate:

Date:  23 October 2012