Walters and Brunton

[2014] FamCA 1044

FAMILY COURT OF AUSTRALIA

WALTERS & BRUNTON [2014] FamCA 1044

Property; uncontested

Family Law Act 1975 (Cth)
Transfer of Land Act 1958 (Vic)

Stanford (2012) 247 CLR 108

APPLICANT: Mr Walters

RESPONDENT: Ms Brunton

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6002 of 2013

DATE DELIVERED: 6 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Korfiatis

SOLICITOR FOR THE APPLICANT: Webb Korfiatis Family Law

COUNSEL FOR THE RESPONDENT: Mr Lovering

SOLICITOR FOR THE RESPONDENT:

Macgregor Barristers and Solicitors

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Lovering

Ms Hession (excused)

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

1. That there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the husband engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That the reasons for judgment this day be transcribed.

4. That BY CONSENT there be parenting orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

5. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

6. That all outstanding parenting proceedings are otherwise dismissed.

7. 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 Walters & Brunton 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 6002 of 2013

Mr Walters

Applicant

And

Ms Brunton

Respondent

REASONS FOR JUDGMENT

1. This is an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) for the alteration of property interests. The application is brought by Mr Walters, who I shall refer to as the husband. The respondent is Ms Brunton, who I shall refer to in these reasons as “the wife”. I name them husband and wife for my convenience and for no other particular reason.

2. The relationship of the parties is uncontroversial in terms of property.  Cohabitation commenced about 2005, marriage in 2011 and separation under the one roof in February 2013. 

3. For all their efforts, the parties have ended up with a home in Wyndham Vale, and the accrued superannuation entitlements in Mr Walters’ superannuation fund that arise out of his employment.  In respect of the latter, it is uncontroversial that there is about $42,000.  In respect of the former, whilst there is no sworn valuation, the uncontroversial evidence appears to be that the property did go on the market for sale and the only offer was $321,000.  Even if that was on the low side, the mortgage at the moment is approximately much the same as that amount, and in addition to that, the builder of the home has a claim for $24,000.

4. To enable the parties to buy and settle the property, they had to sign a document under which the builders presumably obtained a right under the contract to lodge a caveat. The parties have charged whatever interest they had in the property to secure that debt to the builders. An application was made under s 89A of the Transfer of Land Act 1958 (Vic) to have the caveat removed on the basis that there was no caveatable interest. When that notice went to the builders, they triggered litigation which is now pending. Even if the debt is only $24,000, if it is contested no doubt there will be further costs involved.

5. There is one child of this relationship, C, who was born in 2007.  Pursuant to orders I have made today, C will remain living with her mother, and the parties agree that the father will not be spending time.  There are three other children for whom Ms Brunton is responsible, but only one of those is under the age of 18 years.  None of those children are children of the marriage. 

6. In Stanford (2012) 247 CLR 108, the High Court of Australia said that the first step for the Court was to determine whether or not it was just and equitable to make an order. That is hardly controversial in this case because there is so little here to divide. The wife is still some 15 years or so away from retirement, so any superannuation splitting order, even if it was made, would be relatively of little value to her.

7. In terms of any equity in the home itself, taking into account the impending litigation over the payment of the $24,000, I am satisfied is no equity there that could benefit the wife in any event. 

8. The wife has specifically disavowed herself of any claim, but has had advice.  She should not be put in a position where she consents to the orders despite that advice and she is reluctant to do anything.

9. Mr Walters as the applicant husband gave evidence about the position.  It would seem that, at best, $1000 of the parties’ money together with the Commonwealth Government’s First Home Owners Grant went into the acquisition of the real property, culminating in them still having a significant debt. 

10. The agreement proposed by the husband is that he will be responsible for all of the debt and indemnify the wife in respect of not only the mortgage, but also the debt to B Pty Ltd the builders.  It is often said that the indemnity is dependent upon the worth the person who is offering it, and it quite clear that the wife does not have anything that could support the payment of the debt in any event.  It will be interesting to see whether or not B Pty Ltd pursues the wife pursuant to the contract, knowing full well that she is now indemnified by the husband. 

11. Section 79 of the Family Law Act requires the Court to only make an order if it is just and equitable to do so. There is little benefit for the wife in the superannuation, and what the husband is offering is to take the burden of the debt off her shoulders. Even if the property was sold it would not cover all of the liabilities that currently exist. Both parties require the Court to make an order.

12. Before the Court can make an order under s 79 it has to contemplate the matters set out in s 79(4). The uncontroversial evidence in this case is that the husband was the sole financial provider and the wife was the main homemaker. The husband provided some financial support for some of his step-children. I am not asked to make any determination in precise terms as to what contributions the parties made other than obviously both did the best that they could with the circumstances that prevailed.

13. There are no s 72(2) factors here that make a substantial difference.  The husband’s income is not huge.  By the time he pays about $15,000 a year in child support, not to mention the liabilities that he is facing, I am satisfied that he is not affluent. 

14. In my view, therefore, it would be just and equitable to make the sort of orders that were contemplated by the husband and not really opposed by the wife. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 October 2014.

Associate:

Date:  14 November 2014