Viller and Lucey

[2007] FamCA 640

FAMILY COURT OF AUSTRALIA

VILLER & LUCEY [2007] FamCA 640

FAMILY LAW - CHILDREN - With whom a child shall live - Undefended - Child to live with father
FAMILY LAW - PROPERTY SETTLEMENT - Undefended

APPLICANT: MR VILLER

RESPONDENT: MS LUCEY

FILE NUMBER: CAC 61 of 2007

DATE DELIVERED: 24 May 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Mullane J

HEARING DATE: 21 May 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms White of Messrs Farrar Gesini & Dunn

THE RESPONDENT: There was no appearance by or on behalf of the respondent wife

Orders

The orders of the Court are:

1. The child, a daughter, born … March 1994, is to live with the father.

1. The child is to spend reasonable time with her mother as agreed by the parties.

1. As between the parties from today until completion of its sale the father is entitled to exclusive occupancy of the property known as M in the ACT, being the land in Certificate of Title Volume … Folio … .

1. The mother must do all acts and execute all documents to obtain vacant possession of the property and to sell the property.

1. The parties must do all acts and execute all documents to cause the proceeds of sale of the property to be paid as follows:

5.1reasonable expenses of the sale including agent’s commission and legal costs and disbursements;

5.2rate adjustments upon completion of the sale;

5.3discharge of the registered mortgage No. … on the title;

5.4payment of $21,000 to the credit of the husband’s personal loan account with St George Bank;

5.5payment of $2,000 to the credit of the husband’s account with P Store

5.620% of the balance to the mother;  and

5.7the remainder to the father.

1. Any income from the property is to be used to pay outgoings on the property and otherwise in accordance with Order 5.

1. The father is appointed attorney for the mother for purposes of implementing Orders 4, 5 and 6 and is to have the conduct of the sale on the mother’s behalf, instruct solicitors and agents on her behalf, prepare the property for sale on her behalf, and sign any documents on her behalf.

1. Otherwise each party is declared to have no interest in any property in the possession or control of the other.

1. Otherwise the father’s application of 15 January 2007is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Viller & Lucey.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:   CAC61 of 2007

MR VILLER

Applicant

And

MS LUCEY

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This was an undefended hearing of the father's application for parenting orders regarding the parties' daughter, and for orders for adjustment of property interests of the parties under the Domestic Relationships Act 1994 (ACT).

2. The evidence comprised:

   i)The father's application for final orders filed on 15 January 2007 and returnable on 9 February 2007.

   ii)The affidavit of service of Mr H testifying to personal service of the application and other documents on the mother on 1 February 2007.

   iii)The financial statement of the father sworn 12 January 2007.

   iv)The affidavit of Ms W sworn 5 March 2007.

   v)The affidavit of Mr G, sworn 15 May 2007.

   vi)The affidavit of the father, sworn 15 May 2007.

   vii)Exhibit A, the mortgage statement from C Limited, the mortgagee of the mother's property at M.

   viii)Exhibit B, a letter of 26 March 2007 from the lawyer for the mortgagee to the mother.

   ix)Exhibit C, the affidavit of service on behalf of the mortgagee on the mother on 10 April 2007 of a default notice and notice of intention to sell the mortgaged property.

   x)Exhibit D, a title search at 15 May 2007 of the mother's property at M.

   xi)Exhibit E, an email of 15/05/2007 from the solicitor for the mortgagee to the solicitor for the father.

   xii)A letter of 21 May 2007 from Child Support Agency certifying arrears of child support owing by the mother in respect of the child.

NON APPEARANCE OF THE MOTHER

1. The mother has filed no response opposing the application.  She has filed no document in the proceedings.  She did not appear at the hearing which was fixed by the registrar on 10 April.

2. On the balance of probabilities, the mother did not attend to oppose the application or appear at the hearing.

BRIEF BACKGROUND

1. The applicant father is a tradesman, 33 years of age.  The mother is about 30 and is in full-time employment as a public servant with the Australian Public Service.  The parties' cohabitated from about 1991 until September 2006. 

2. At the time of the commencement of their cohabitation the father was about 19 and the mother was 16. 

3. In about 2002 the parties bought a home at R in the ACT where they had been renting about five years.  The property was acquired in the mother's sole name using mortgage finance for part of the price.

4. They sold the R property for 288,000 in about September 2004 and netted $61,660 from the sale.  In about October 2005 they purchased the present home at M for $307,000; again in the mother's sole name. 

5. The parties separated on 11 September 2006 when the mother left the home at M.  She has since resided elsewhere. 

6. Then at first the father and the child resided in the home at M.  However, in October 2006 the father and the child left the home at M and have since resided elsewhere.  Since separation the mother has seen the child only occasionally.

7. Since October 2006 the mother has arranged for a Mr F to occupy the home.  The mother told the father's solicitors that Mr F has occupied the home rent free.   But there is a mortgage on the home, there is no evidence that the property is not lettable and there is no direct evidence that Mr F is not paying rent.  There is no evidence before the Court as to any reason why the property could not be let.

8. The mortgage payments fell into default by January of this year.

9. Since separation the mother has retained most of the furniture and furnishings from the home.  The father had a pool table from the home that she sold for $1000 and he paid the proceeds to the mother.  The father sold, after separation, a Holden Caprice car the parties had owned, and he used part of the proceeds of $5000 net to obtain and furnish rental accommodation for himself and the child.

OTHER FACTS

1. The Court accepts and adopts the facts in the documents in evidence and they will generally not be repeated in the judgment.

CONCLUSIONS REGARDING THE CHILD

1. The mother has had very infrequent contact with the child in the period since separation.  She has not demonstrated any strong interest in the child or in spending time with the child.  The mother is in arrears in payment of child support for the child.  The relationship between the mother and the child is not close.  They are estranged. 

2. On the facts it would be contrary to the child's interests for the parents to have equal shared parental responsibility.  The presumption of equal shared parental responsibility is rebutted and her interests are best served if the present position, whereby each parent has separate parental responsibility for her remains in accordance with the legislation.

3. The child’s interests are best served by orders that she continue to live with her father and that spends reasonable time with her mother as agreed by her parents. 

RELEVANT LAW - ADJUSTMENT OF PROPERTY INTERESTS

1. The issue of adjustment of property interests is to be determined in accordance with the provisions of the Domestic Relationships Act, 1994 (ACT).

PRELIMINARY FINDINGS UNDER DOMESTIC RELATIONSHIPS ACT

(i)  Section 11 - Both parties were resident in the ACT on 15 January 2007 when the application was made.

(i)   Section 12 - There was a domestic relationship between the parties for more than two years.

(iii)  Section 13 - The application was made within two years of the date the relationship ended.

PROPERTY AND LIABILITIES

1. The property and liabilities of the parties is as follows: 

   Property –

   ·    The home at M -   value $355,000

   ·    The  father's 1994 Mazda Bravo Utility per his admission

   against interest,   $1,000.

   ·    Furniture and furnishings and other household contents

   in the wife's possession, value not known.

   Liabilities –

   ·    the father's St George Bank Personal Loan Account, balance           $21,000.

   ·    The father's P Store Interest free loan     $  2,000.

   ·    The mortgage liability to C Limited,   about $270,000

2. The St George Loan was for $25,000 borrowed in March 2004.  About $10,000 of that was used to pay out a personal loan and the balance was used for the husband's business.  The husband has made all the repayments on the account.  The balance at separation was about $23,000.

3. After separation the husband paid a total of $922 for debts of the parties, registration of the motor vehicles of both the parties and sewerage and water rates for the M property.

4. The P Store Loan is the balance of the loans for various household furniture and appliances which were retained by the mother at separation.  The balance owing at separation was about $3028 but the father has reduced this using the balance of funds from the sale of the Holden Caprice.

NATURE AND DURATION OF THE RELATIONSHIP (Paragraph 15(1)(a))

1. The relationship was a de facto marriage and it lasted about 15 years.  The child is a child of the marriage born in March 1994 and since March 1994 the parties have been in the relationship of parents of the child.

CONTRIBUTIONS OF THE PARTIES (Paragraphs 15(1)(b) and (c))

1. The Court accepts the evidence on these matters and finds that the financial and non-financial contributions of the parties made directly or indirectly by or on behalf of either or both of them to the acquisition, conservation or improvement of any property or financial resources of either or both of them and the contributions of each of them to the welfare of the child and the other are such that on an overview their contributions are roughly equal.  This would justify a division of their property and liabilities on the basis that the father and the mother each retain any personal property in their possession, including furniture and furnishings and the utility the husband possesses and the home is sold, the debts are paid and any balance is divided equally between the parties.

INCOME PROPERTY AND FINANCIAL RESOURCES

1. Orders based on contributions would see the parties with roughly equal division of their property.  The father's income is about $585 per week in wages and he is entitled to Child Support of about $75 per week, giving a total of about $660 per week.  The mother's salary was more than $48,000 in the 2005 tax year and on the balance of probabilities is at least $950 per week now.  After she pays the child support her before tax income would be $875 per week.

2. The parties both have superannuation entitlements.  The immediate retirement value of the father's entitlement is about $8,000 gross.  The value of the mother's entitlements is not known. 

OTHER MATTERS UNDER SUBSECTION 19(2)

1. The relevant matters under the relevant paragraphs of the sub-section indicated are:

   b)Each party has the physical and mental capacity to continue his or her present employment.

   c)There is no evidence sufficient to enable the Court to quantify the financial needs of the parties to support himself or herself.

   d)The mother has a liability to contribute child support of $75 per week towards the child's financial support.

   e)The father has obligation to provide most of the child's financial support. She is a teenager and the Court takes judicial notice of the fact that teenagers certainly, on average, cost more than $200 per week for their financial support. The orders are based upon contributions are likely to see each of the parties with funds of about $27,500 after payment of the debts and sale expenses and,

   f)The father has received in total since separation about only $918 by way of child support as the mother has not paid the payments as they fall due.

JUST AND EQUITABLE RESULT (SUBSECTION 15(1))

1. The other matters above support a result more generous to the father than a result based upon contributions alone; that is particularly so because it is the father's responsibility for most of the financial support of the child, who is only 13 and will not turn 18 until … March 2112. 

2. The net property and liabilities is a very small pool.  The finding is that the result the father seeks, which involves him receiving 80 per cent of the net proceeds after payment of the sale expenses and the debts and the wife receiving 20 per cent is a just and equitable result.

IMPLEMENTATION

1. One has to be concerned about the bona fides of the mother in relation to the M property and attempted sales by her.

2. Although she owns the property, she did not pay the mortgage payments as they fell due.   By March this year she was in arrears by $3,590.  She did not let the property, she says, but allowed Mr F to occupy the property rent free.  This indicates that she and Mr F are not at arms length. 

3. Although the M property was bought in 2005 for $307,000 and is now valued at $355,000 the mother has recently made several attempts to enter into a contract to sell the property for $260,000 to Mr F.  Mr F did not adhere to arrangements made for him to make the property available for an internal inspection by the valuer. 

4. It appears that there may have been an attempt by the mother, in conspiracy with Mr F, to dispose of the property at under value in order to defraud the husband by reducing his prospects in these proceedings or frustrating his application completely. In the circumstances, the mother should not be trusted to act bona fide in relation to giving vacant possession of the property and selling it.

5. Accordingly, the father should be appointed her attorney to do all acts and execute all documents to obtain vacant possession to sell the property.

6. Similarly, the mother should not be given time to secure vacant possession.  There should be an order that pending completion of the sale the father is entitled to occupy the property to the exclusion of the mother. 

I certify that the preceding twenty nine (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane J

Associate: 

Date:  26/6/2007