Vollans and Diete

[2017] FCCA 3331

FEDERAL CIRCUIT COURT OF AUSTRALIA

VOLLANS & DIETE [2017] FCCA 3331

Catchwords:
FAMILY LAW – Property – assessment of contributions – father has PTSD after (employment omitted) in (countries omitted) – whether (employer omitted) payments are income – substantial contributions by father – 8% adjustment in favour of mother.

Legislation:  
Family Law Act 1975 (Cth)

Applicant: MR VOLLANS

Respondent: MS DIETE

File Number: BRC 3504 of 2016

Judgment of: Judge Vasta

Hearing dates: 14 and 15 December 2017

Date of Last Submission: 15 December 2017

Delivered at: Brisbane

Delivered on: 15 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Seaholme

Solicitors for the Applicant: Power Legal

Counsel for the Respondent: Mr Gilbert

Solicitors for the Respondent: Sydney Law Practice

ORDERS

1. That the parties have joint parental responsibility for the children namely [X] born (omitted) 2001, [Y] born (omitted) 2005 and [Z] born (omitted) 2008.

2. That [X] live with the Father.

3. That [X] be at liberty to spend time and communicate with the Mother at his discretion and the Father shall endeavour to facilitate such contact.

4. That [Y] and [Z] live with the Mother.

5. That [Y] and [Z] spend time and communicate with the Father as follows:-

   (a)From Sunday, 14 January 2018 until Saturday, 3 February 2018 at 12 noon.

   (b)In 2018 and each alternate year thereafter for the first half of each school holiday period from 10am on the Saturday immediately following the end of the school term.

   (c)In 2019 and each alternate year thereafter for the second half of each school holiday period with the mother to collect the children at 2pm on the Saturday immediately preceding the new school term.

6. That the Father be at liberty to telephone [Y] and [Z] at all reasonable times as agreed between the parties but failing agreement each Monday and Thursday between 6pm and 6:30pm.

7. School holidays shall be deemed to commence at 10am on the Saturday immediately following the end of the school term and shall be deemed to conclude at 5pm on the Saturday immediately preceding the start of the new school term and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional nights.

8. That the costs of changeover shall be borne equally by the parties, with Father having the responsibility to pick up the children at the commencement of the children’s time with him and the Mother having the responsibility to collect the children at the conclusion of the children’s time with the Father. In relation to [X], should [X] wish to visit the Mother, then the costs of the changeover shall be borne equally between the parties.

9. The parties shall keep the other informed of the children’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this order shall serve as such authority.

10. Each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.

11. The parties shall keep the other informed of any daycare, school, educational facility or extracurricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the children and the option to purchase school photographs and this order shall serve as such authority.

12. The Father will not consume alcohol within twelve (12) hours of spending time with [Y] and [Z].

THE COURT ORDERS BY WAY OF FINAL PROPERTY ORDER:

1. That the de facto husband retain all right title and interest in the real property at Property A.

2. That the proceeds of sale of the Property B property held in Power Legal’s Trust Account be distributed as follows:

   (a)The sum of $175,880.00 to de facto wife;

   (b)The balance to the de facto husband.

3. That pursuant to section 90MT (1)(a) of the Family Law Act1975, whenever a splittable payment becomes payable in respect of the interest of MR VOLLANS in his (omitted) Superannuation and Benefits Scheme (“the fund”), MS DIETE shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001 using the base amount of $50,000.00 and there be a corresponding reduction in the entitlement of the MR VOLLANS to whom the splittable payment would have become payable but for these orders.

4. That having been accorded procedural fairness in relation to the making of clause 15, 16 and 17 of the Order, this agreement binds the trustee of the (omitted) Superannuation and Benefits Scheme.

5. Such payment shall be made at the operative time being five (5) business days after service of the sealed final orders on the Trustee.

6. That each party retain all other assets currently in their respective possession including but not limited to bank accounts, polices of insurance, superannuation, motor vehicle and personal property.

NOTATION:

A.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Vollans & Diete is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRC 3504 of 2016

MR VOLLANS

Applicant

And

MS DIETE

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. This is a matter that was set down for hearing for both parenting and property matters.  The Applicant father, Mr Vollans, was born on (omitted) 1983.  The Respondent mother, Ms Diete, was born on (omitted) 1982.  They were very young when they commenced cohabitation in the year 2000; it would seem the father was about 17 while the mother may have just turned 18.  By (omitted) 2001 [X], their first child, was born. 

2. The parents had many breaks during the course of the relationship.  During one of those breaks, in the latter part of 2004/early 2005, the father made the decision to (employment omitted) with the (employer omitted). 

3. The parties did resume a relationship which led to [Y] being born on (omitted) 2005.  In 2007, the father was (employment omitted) to (countries omitted), after which he discovered that the mother was pregnant with their third child, but he was able to return from (countries omitted) for the birth of [Z] on (omitted) 2008.

4. Notwithstanding the three children were born, the relationship was not smooth sailing and still had periods of separation.  The parties decided, because they had actually no property to their name at this time, in 2008, and notwithstanding they had three children, to buy an investment property at Property C.  This was paid for, to start with, by the mother putting in $30,000.00, the father putting in $40,000.00 and then the couple borrowing the rest of the money.

5. The property was put up for rent.  The property was in the sole name of the father. The father was paid the rental receipts, and from those was able to pay the mortgage, though it would seem that there is no real evidence as to what the mortgage was and what the rents were.  It could easily be inferred that the property was negatively geared, which would mean that any shortfall in the rent would have been paid for by the father, but that is not of much consequence here, and it is somewhat speculative.

6. That property stayed with the parties, and the father continued to pay the mortgage.  In 2012, the parties bought a unit at Property B.  The purchase price was $632,000.00.  It would seem that there was no financial contribution to any deposit by the mother and the father paid about $25,000.00 for the deposit.  There was $598,000.00 that was borrowed for that purchase.  The mother of the father (the paternal grandmother) became a guarantor for that loan, and her name was on the title deed as well as the father's.  That property, as I say, was bought in 2012, and the father paid the mortgage repayments and the outgoings.

7. Whilst there is no firm evidence on this, one would think that the mortgage repayments on a $600,000.00 loan would have been well over the $3,000.00 a month mark.  As well as the repayments, there were all the usual outgoings.  These were all borne by the father. 

8. Because of the father's (employment omitted) to (countries omitted) in 2007 and to (countries omitted) in 2010, he was diagnosed with post-traumatic stress disorder.  This disorder was brought about solely because of the terrors that he faced whilst (employment omitted).

9. The (employer omitted) and/or the (employer omitted) saw their responsibility for what had happened to the father and, after investigations had been made, made the first lump sum payment to him of $215,000.00.  This occurred in 2013. 

10. The father transferred about $192,000.00 of this over to reduce the mortgage.  Such a payment then reduced the payments for the mortgage to about $2,000.00 a month, though of course that doesn't reduce any of the outgoings.  All other debts that the parties had with regard to motor vehicles or other personal loans or credit cards were all paid at that time.

11. At the end of 2013, the parties separated for the final time.  The father left the property and was, in effect, homeless.  He first stayed with the paternal grandmother and then he had a stint in the hospital because of his PTSD.  He stayed living in a van.  He then, to use the vernacular, “couch surfed” at friends' houses.  He then ended back up in hospital, and then finally was given a residence with an organisation called (“omitted”).

12. Notwithstanding this, he still kept up all the payments to the house; that is, the $2,000.00 a month mortgage plus all the outgoings.  At this time he started reporting some mortgage stress and that there was trouble meeting these payments.  The Property C property was then sold.  It would seem that, after that property was sold and all of the other expenses and liabilities were paid out, there was about $40,000.00 made.

13. It's somewhat unknown as to what the actual amount was, and whether that $40,000.00 was “clear” or whether that still had to be subjected to capital gains tax.  In any event, it seems that this money was deposited into the account of the father, and he was still keeping up the payments on the Property B unit. 

14. When Property C was sold, it does seem as though the mortgage on that property was, in effect, increased by about $60,000.00, that being that the father took $60,000.00 equity out of the Property C property and put it against the Property B property, again to reduce the payments; in effect, a bit of a “robbing Peter to pay Paul” situation in shifting the money around, although that fact doesn't make too much difference to this particular narrative.

15. In 2014, around this time, another lump sum of about $72,000.00 was paid to the father.  He still continued to pay the mortgage and the outgoings. 

16. In June 2014, the father asked the mother to start paying for part of the mortgage payments.  He made this request and the mother started paying $470.00 a month for three months.  The father then became aware that there was another man staying at the premises, and this man seemed to be in a casual relationship of some sort with the mother.

17. He then made, in effect, a demand that the mother increase her payments from monthly to fortnightly, which occurred in October 2014. In February 2015, the father asked the mother to contribute half the mortgage payments and the outgoings - that is the rates, water, electricity and so on.  That meant that the payments were, from February 2015, $650.00 a fortnight.  This continued until November 2015.

18. The evidence before me was that the maternal grandfather that is, the mother's father, paid that $650 a fortnight, which was half the costs.  In 2015, the father was paid a third lump sum.  All in all, that meant that he was paid $367,310.57 by lump sum payments from the (employer omitted). 

19. Sometime after that, the father bought a property at Property A with his new wife.  He paid $25,000.00.  His wife paid another $25,000.00, giving them a $50,000.00 deposit on a $390,000.00 home.

20. The father then had the Property B property put on the market.  The mother put a caveat on the Property B property which led to the father initiating these proceedings in this Court on 18 April 2016.  The matter came before me on 10 June 2016.  On that date, as the first Court date, I ordered that the property be sold and that the caveat be removed.

21. The matter came back before me for a short Chambers hearing on 14 July 2016 where it was submitted that, because the paternal grandmother had her name on the title deed, the caveat ought remain if the paternal grandmother was to make a claim.  It was pointed out to me that the grandmother was to make no claim. I ordered overnight for the grandmother to file an affidavit to that effect.

22. This was done, and on the next date, 15 July 2016, I ordered that the caveat stay until the property is sold and, upon settlement of the property, the caveat was to be removed.  I ordered that the proceeds of the sale were to be put into the trust account of Power Legal, the solicitors for the father. This was done.  The property realised, once all of the liabilities were paid out, a sum of $609,000.00 in equity, and this money was put in trust.

23. On 29 September 2016, the matter came before me because of a problem that the parents had over the child, [Y], who had gone with the father to Darwin and there was an argument as to whether [Y] ought be returned or not. I ordered that [Y] be returned and I ordered that a Child Inclusive Conference ought to then take place.  This meant that this matter would then be a parenting matter as well.

24. I ordered also that, of the money that was in trust, $50,000.00 as a partial property settlement be paid to both the mother and the father.  That leaves the sum of $509,000.00 still in the trust account.  A family report was ordered as well.  I set the matter down for trial for yesterday and today, though it was always my belief that this was a matter that should have settled, and that parties were either being greedy or stubborn if they went to trial.  It seems, though, that at least they came to their senses when it came to the children and were able to sort out orders for the children.

25. I have gone through the orders that the parties have asked me to consider, and I do believe that they are orders that are in the best interests of [X], [Y] and [Z], and I will be making those orders. 

26. However, the property matter was still well and truly alive. The evidence before me shows that there actually is very little in the way of real property left. The father is living in the house at Property A; the mother has relocated to (omitted). She had been on a Newstart allowance until October 2017, but has now started a business called (business omitted).

27. She started that business from scratch.  She employs one person on a casual basis, though that is through an incentive given by Centrelink, and she is renting premises somewhere in (omitted) or near (omitted) for $670.00 a week. 

28. The business is able to keep its doors open but is still finding its feet.  The husband has been assessed medically as not being able to work any more, and will not be able to work again according to the medical reports.  He is given a payment by the (employer omitted) that recognises this.  It is a form of disability payment, though it is indexed to the salaries for active (occupations omitted).

29. There was an attempt to try and characterise this as an income stream.  However, I reject that.  It is not an income stream; it is properly characterised in the same way that disability payments are paid by the Department of Social Security. However, this is a payment that is made by the (employer omitted).

30. The principle is that the community at large feels that it is the responsibility of society to look after those who are less fortunate and have disabilities and cannot work, and therefore the community pays money to those people.

31. When it is that a disability has arisen because a person has made a contribution to society through service through the (employment omitted), then the payment is a somewhat greater one than is the case with other disabilities.  The “pot of money” that that payment comes out of is not from part reserved for the Department of Social Security; it is from the part reserved for the (employer omitted). That does not make any difference, in my estimation, as to how such a payment ought be characterised; it is still coming from the same “pot”.

32. It is a payment that is made because a person has a disability and cannot work, and could never be seen as an income stream at all. 

33. The parties have very little in the way of other properties. They have cars; the cars are paid for.  There are no other matters that can be seen as matrimonial property that have any liability whatsoever. The payments made by the (employer omitted) of $367,310.57 were payments made for an injury that occurred during the course of the relationship.  This means that they can be calculated in ascertaining what the pool is.

34. As I have said, those payments now have all been dissipated. Whilst there has been some criticism as to a lack of explanation as to where the payments went, when one analyses the bank statements of the husband there are no extraordinary large cash amounts or constant cash withdrawals; certainly nothing that shows that he has any form of telephone betting account or he’s taking money out of ATMs at casinos, or anything of that nature. The payments look as though they have actually gone into the repayments of mortgages and the ordinary living expenses.

35. The father has also been paying the child support that he has been assessed as owing. The mother made some criticism of this in her evidence when she said that all he did was pay the mortgage, but when one considers that the mother was staying in the house and the father was not enjoying the house, the fact that he was paying well over $3,000.00 a month would well and truly be regarded as far greater child support than would ever have been assessed by the Child Support Agency, especially considering the meagre income upon which the father was reliant.

36. That leaves me with a pool that really only has three aspects.  Firstly, the $609,000.00 that is the equity from the sale of the Property B property.  Secondly, the father’s superannuation of $92,000.00, and thirdly, the $25,000.00 that the father used as part of the deposit for the Property A property, which could easily be traced back to being part of that lump sum payment. 

37. That gives a total of $726,000.00 to be divided.

38. When looking at the contributions, the mother has made major non-financial contributions in looking after and raising the children, especially during times where the father was (employment omitted) to (countries omitted), and has kept the home, and been the primary caregiver. But this was not constant because of the periodic separations. Financially, she made a $30,000.00 contribution initially, and from June 2014 to November 2015 paid, on my calculations, a total of $17,810.00.  Part of this money was the sum that the maternal grandfather paid as well.

39. Financially, her contributions are well and truly dwarfed by the very substantial contributions made by the father.  The huge gain in equity from the sale of the Property B property was only made possible by his initial contribution and his maintaining the payments of the mortgage and the outgoings.

1. It would seem to me, then, that looking at all of those matters that I should assess the contributions (both financial and non-financial) as being 70 per cent to the father and 30 per cent to the mother. 

2. In looking at the s.90SM and the s.75(2) factors, I take into consideration these things: 

   a)that the mother is in a fledgling business; 

   b)that she has been reliant upon social security up until two months ago;

   c)that she is renting a property and does not look as though she will be in any position to buy property any time soon.  The rent is $690 a week, which is a lot of money in anyone’s language,

   d)that the mother has the ongoing care of two of the three children.

3. When one looks at the father, he is reliant totally on the (employer omitted) payments and will never be able to work again.  However, he does have $200,000.00 equity now in a new home, and though he, too, is looking after one of the children of the relationship and a new child that he has with his wife. 

4. In all of the circumstances, looking at the needs of both the mother and the father, I’m of the view that I should adjust the ledger, as it were, in favour of the mother by a factor of 8 per cent.  This would mean that out of the $726,000.00, the husband should get 62 per cent and the wife should get 38 per cent.  On those percentages, that gives a total of $450,120.00 to the husband and a total of $275,880.00 to the wife.

5. The wife has already been paid a $50,000.00 partial settlement, and the wife will also be the recipient of a superannuation splitting order in the sum of $50,000.00, which is more than half of the husband’s current superannuation.  Once those deductions are made, that leaves a total of $175,880.00.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  18 January 2018