WENZLER & WENZLER

[2020] FCCA 2104

FEDERAL CIRCUIT COURT OF AUSTRALIA

WENZLER & WENZLER [2020] FCCA 2104

Catchwords:
FAMILY LAW –Parenting – undefended final hearing – where husband convicted of assault against wife – where wife protected person under ADVO against husband – where husband has withdrawn from being an active parent – where wife granted sole parental responsibility – where no orders made for husband’s communication or time with children.

FAMILY LAW – Property – undefended final hearing – where wife was the major contributor to parties’ marriage – where husband has prevented maximum rental income from parties’ leased property – where wife has significant future needs due to sole care of children – it is just and equitable to adjust the parties’ interest in their property.

Legislation:

Australian Passports Act 2005 (Cth) s.11

Crimes Act NSW 1900 (NSW) s.9

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 65Y 75(2), 79, 106A

Family Law Regulations 1984 (Cth) reg.13
Statutory Declarations Act 1959 (Cth) s.8

Cases cited:

M & M (1988) FLC 91-973

Kennon & Kennon (1997) 22 FAMLR 1
A & A & The Child Representative (1998) 22 FamLR 756
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
Napier & Hepburn (2006) FLC 93-303
Goode & Goode (2006) FLC 93-286
Johnson & Page (2007) FLC 93-344
MRR & GR [2010] HCA 240
Marvel & Marvel (2010) 240 FLR 367
SS & AH [2010] FamCAFC 13
Deiter & Deiter [2011] FamCAFC 82
Stanford & Stanford (2012) 247 CLR 108
Eaby & Speelman [2015] FamCAFC
Bondelmonte v Bondelmonte (2017) CLR 662
Grella & Jamison [2017] FamCAFC 21
Mabb & Mabb & Another [2020] FAMCAFC 18

Applicant: MS WENZLER

Respondent: MR WENZLER

File Number: SYC 629 of 2019

Judgment of: Judge Morley

Hearing date: 12 August 2019

Date of Last Submission: 12 August 2019

Delivered at: Sydney

Orders Pronounced: 12 August 2019-

Delivered on: 3 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Kennedy

Solicitors for the Applicant: Pigdon Norgate Family Lawyers

No appearance for the Respondent. 

ORDERS

(1)The mother have sole parental responsibility for the children X, born in 2010, and Y, born in 2013 (“the children”).

(2)The children live with their mother.

(3)Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the mother be permitted to travel with the children outside of the commonwealth of Australia.

(4)Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the Minister may issue or renew the children’s Australian passports without the necessity of obtaining the consent of the father.

(5)Within 56 days from the date of these orders, the husband do all acts and things and sign all documents necessary to transfer to the wife all of his right, title and interest of the real property at B Street, Suburb C, New South Wales, and being the whole of the land in Certificate of Title Folio Identifier ....

(6)That simultaneously with the transfer of the B Street, Suburb C property, the wife do all acts and things and sign all documents necessary to pay all amounts necessary to obtain a discharge of the Mortgage currently registered on title to the B Street, Suburb C property, including paying any amounts owing in respect of any loan accounts secured by that Mortgage.

(7)That in the event that the wife is unable to comply with order 6, the wife will do all things necessary to list for sale the B Street, Suburb C property and pursuant to s 80(1)(e) of the Family Law Act 1975 (Cth), the wife be appointed as Trustee of the sale of the B Street, Suburb C property.

(8)Simultaneously with the settlement of the sale of the B Street, Suburb C property, the wife do all acts and things and sign all documents necessary to cause the payment of the proceeds of sale to be paid in the following order and priority:

(a)To pay all amounts necessary to discharge the Mortgage, including any arrears accrued by that Mortgage;

(b)To pay all costs and expenses of the sale of the B Street, Suburb C property including legal costs and disbursements if any, agents’ commissions if any, valuers’ fees if any, advertising and sale expenses if any;

(c)To pay all amounts necessary to discharge all outstanding rates, electricity or other service accounts in respect of any service provided to the B Street, Suburb C property outstanding as at the date of completion of the sale of the B Street, Suburb C property; and

(d)To pay the remaining proceeds of sale to the wife.

(9)Each party is solely entitled in law and in equity as between that party and the other party to the whole of their current superannuation entitlements and benefits.

(10)The husband is the sole owner, in law and in equity, as between himself and the wife of all real property, personal property, financial assets and financial  resources currently in his power, possession and control, other than as dealt with specifically in these orders.

(11)The wife is the sole owner in law and in equity as between herself and the husbands of all real property, personal property, financial assets and financial resources currently in her power, possession and control, other than as dealt with specifically in these orders.

(12)In the event that the Motor Vehicle 1, unregistered motor vehicle currently located at the B Street, Suburb C property and currently the personal property of the Respondent husband is not removed from that property by the husband, or persons on his behalf and at his sole expense, as between himself and the wife, within 14 days of the date of service on the husband of a copy of these orders, then the Motor Vehicle 1 will, upon the 15^th day from the date of service on the husband of a copy of these orders, become the sole property in law and in equity of the wife as between the wife and the husband, and she will thereafter be entitled to dispose of or keep that motor vehicle as she chooses.

(13)In the event of default of the husband by reason of failure or refusal, to do any things or execute any documents that may be required for completion of these orders within the time provided, then pursuant to s 106A of the Family Law Act 1975 (Cth) the Court appoints the Registrars in the Sydney Registry of the Federal Circuit Court of Australia to do all such acts and things and execute all such documents on behalf of the husband as may be necessary to provide compliance with completion of these orders, and in the event that completion is obtained by the wife with the assistance of a Registrar pursuant to this order, then the wife will be entitled to recover her costs and expenses incurred in obtaining compliance pursuant to this order.

(14)A copy of the orders made today are to be served on the Respondent husband by the Applicant wife by 29 August 2019, such service, in keeping with the orders as to service previously made in this matter, being by way of ordinary prepaid post addressed to the husband at D Street, Suburb E, New South Wales, and by way of sending to the husband at ... .com.

(15)Pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001, the Court may vary or set aside a judgement or order after is has been entered if it was made in the absence of  a party, and in that regard, any application to be brought by the Respondent husband pursuant to that rule must be brought by him no later than 21 days after the date on which there has been compliance with the order for service of these orders on the husband, and in that regard service will be deemed to have been affected in relation to ordinary prepaid post on the second day after posting.

(16)In relation to an Application for Divorce filed by the Applicant wife filed on 24 July 2019 and listed for hearing before a Registrar of this Court on 24 September 2019, the Court orders that in lieu of compliance with Federal Circuit Court Rules in relation to service of that Application, and pursuant to rule 6.14 of the Federal Circuit Court Rules 2001, substituted service on the husband is to be affected by posting the Application for Divorce and the required accompanying brochure to the husband by ordinary prepaid post c/o D Street, Suburb E, NSW, such service to be effected under the rules relating to service by post by 23 August 2019.

(17)Judgment is reserved to be delivered at 4:00pm on 30 August 2019.

(18)Parties and their legal representatives are excused from personal attendance on the date of judgment delivery.

(19)Leave is granted to the parties and their legal representatives to appear on the date of judgment delivery via AAPT link, as follows:

(a)Dial Guest Dial in Number on 1800 132 423;

(b)At the prompt, enter the guest passcode: 848 477 0316#

(c)You will hear music until the Court is able to join the call

Please be aware that other matter/s may be listed at the same time where attendances may be by telephone.  Please wait for an appropriate time to announce yourself clearly, and, if it appears that his Honour may be dealing with another matter, remain patient until your matter is announced.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 629 of 2019

MS WENZLER

Applicant

And

MR WENZLER

Respondent

REASONS FOR JUDGMENT

Introduction

1.On 12 August 2019, I made final parenting orders and property settlement orders in these proceedings following an undefended hearing on that day. These are the too-long delayed reasons for those orders. The Applicant is Ms Wenzler (‘the wife’) and the Respondent is Mr Wenzler (‘the husband’).

2.The parties commenced cohabitation in 2008, married in 2013, and separated on 7 March 2018. There are two children of the marriage, X, born in 2010 and Y, born in 2013. X and Y have lived with their mother since their parents separated. The children have had no contact with their father since September 2018. The lack of contact between the father and children has been at the father’s own choosing, not due to any action by the mother.

3.The parties’ matrimonial asset pool is modest, consisting principally of a tenanted investment unit, some motor vehicles and superannuation.

4.On 17 March 2018 a Provisional Apprehended Domestic Violence Order (‘Provisional ADVO’) was made against the husband for the protection of the wife. On 9 July 2018 a Final Apprehended Domestic Violence Order (‘Final ADVO’) was made for a period of two years restraining the husband from assaulting, threatening, stalking, harassing, or intimidating the wife or intentionally or recklessly destroying or damaging property that belongs to or is in possession of the wife. The Final ADVO also restrained the husband from approaching or contacting the wife in any way unless through a lawyer, pursuant to Court order in relation to contact with the children, or as agreed in writing between the parents about contact with the children. The Final ADVO further restrained the husband from going within 100 metres of any place where the wife lives or works and, in particular, the wife’s place of residence at Suburb H. The Final ADVO indicates that the husband was present in Court when it was made.

The proceedings

5.The wife commenced the proceedings by filing an Initiating Application seeking interim and final orders relating to parenting and property settlement on 4 February 2019.

6.On 18 February 2019, a process server attended at the home of the husband’s parents at D Street, Suburb E. The process server had a conversation with a person at the property who represented themselves to be the husband’s father. The process server overheard a conversation between that person and a person reasonably presumed to be the husband whereby the person presumed to be the husband stated “I’m not going to meet [the process server]”. The process server placed the documents, which were in a sealed envelope, on the ground in front of the person representing himself as being the husband’s father, told that person what the envelope contained and left.

7.Based on that evidence of the process server, Harper J (as his Honour then was) made an order on the first return date of the matter on 26 February 2019 that:

Service be deemed to have occurred on the respondent father by way of email on 6 February 2019 and by the delivery of copies of the initiating application, affidavit in support and notice of risk at the residence of the respondent’s parents on 18 January 2019, when he was present at the property.

8.His Honour at that time also had the affidavit of the solicitor with carriage of the matter for the wife indicating that the supporting documents for the Initiating Application had been forwarded to the father on 15 February 2019 as attachments to an email directed to an email address known to be used by the husband.

9.On 26 February 2019, his Honour made interim orders that:

a)The wife have sole parental responsibility for the children;

b)The children live with her;

c)The husband be restrained from approaching within 200 metres of the wife’s place of residence;

d)The mother be enabled to obtain renewed passports for the children without the cooperation or consent of the father;

e)The mother be appointed as a trustee of the parties’ investment unit at B Street, Suburb C, to sell the unit and after payment of costs of sale the remaining net proceeds to be held in a controlled moneys account in the name of the parties; and

f)The matter was adjourned to 30 May 2019 for further mention.

10.A letter was sent by the wife’s solicitors to the husband at the Suburb E address of his parents advising the orders made on 26 February 2019. A copy of that letter was forwarded as an attachment to the husband’s email address.

11.On 7 March 2019 a further letter from the wife’s solicitor together with a copy of the orders made on 27 February 2019 was sent to the husband at his email address. That process was repeated on 2 April 2019.

12.The matter was mentioned before the Court on 30 May 2019 and once again there was no appearance by or on behalf of the husband. The matter was set down for an undefended hearing on 12 August 2019 and an order was made that the husband be served with a copy of the orders made that day no later than 28 days prior to the undefended hearing. A notation was made that in the event there was no appearance before the Court by or on behalf of the husband on 12 August 2019 or if he did appear but had not filed a Response, Notice of Risk, Financial Statement and Affidavit in compliance with the Federal Circuit Court Rules 2001 (Cth) (‘the FCC Rules’) by that date, then the matter would proceed on an undefended basis for final hearing on that day.[1]

[1] Federal Circuit Court Rules 2001 (Cth), pt 4.

13.An order for substituted service was made on 30 May 2019.The copy of the orders made on 30 May 2019 was ordered to be served on the husband by both ordinary prepaid post and as an attachment to an email to the husband’s email address on 28 June 2019. A copy of the letter from the wife’s solicitors in that regard was tendered on hearing and marked as exhibit A1.

14.When the matter was called before the Court on 12 August 2019, there was again no appearance by or on behalf of the husband and the matter proceeded to undefended hearing and I made orders on that day.

Materials relied upon by the wife

15.The wife relied on the following materials:

a)A Case Outline document prepared by the wife’s counsel, Ms Kennedy;

b)Amended Initiating Application filed 16 July 2019;

c)A Notice of Risk filed 5 February 2019;

d)Affidavit of the wife sworn 15 July and filed 16 July 2019;

e)A Financial Statement of the wife sworn 15 July and filed 16 July 2019;

f)A tender bundle of the documents referred to in the wife’s affidavit as being exhibited to her at the time of swearing her affidavit. Page 11 of the tender bundle, which is a letter dated 20 June 2019 from Pigdon Norgate Lawyers ( who act for the wife) to the husband, was marked as exhibit A1; and

g)A letter, dated 6 May 2019 from Mr F, a licensed real estate agent, to Ms G of the wife’s parents’ address at Suburb H, which is a market appraisal of the property at B Street, Suburb C (‘the B Street, Suburb C Property’) at $500,000, marked as exhibit A2.

The orders sought

16.The wife sought final orders at the undefended hearing summarised as follows:

a)That the wife have sole parental responsibility for the children;

b)That the children live with the wife;

c)That the wife be permitted to travel outside the Commonwealth of Australia with the children pursuant to section 65Y(2) of the Act;

d)That pursuant to section 11 of the Australian Passports Act 2005 (Cth) the children’s passports may be renewed without the necessity of obtaining consent of the father;

e)That within 56 days of orders the husband do all things necessary to transfer to the wife the whole of his title and interest in the B Street, Suburb C Property;

f)That simultaneous with the transfer to her of the husband’s interest in the B Street, Suburb C Property, the wife do all things necessary to discharge the mortgage registered over that property;

g)If the wife is unable to discharge the mortgage registered over the B Street, Suburb C Property upon the transfer of the husband’s interest then the wife is appointed trustee for sale of the property and upon a sale, the wife pay out the loan accounts so as to discharge the mortgage registered over the property, pay all proper costs of sale and retain the net proceeds of sale;

h)That each party retain their superannuation entitlements;

i)That other than property dealt with specifically in other orders, the husband retain as between himself and the wife whatever property is in his ownership, possession, or control;

j)That subject to any other orders, the wife retain as her sole property as between herself and the husband all property in her ownership, possession, or control;

k)That the husband indemnify the wife against all liabilities of the husband;

l)An order under section 106A of the Act for the Registrar of the Federal Circuit Court of Australia Sydney Registry to execute any documents required to give effect to the orders in event of the husband defaulting on compliance in that regard; and

m)That the husband pay the wife’s costs of, and incidental to, the proceedings.

The evidence

In relation to parenting issues

17.The wife was 31 years of age and the husband was 33 years of age at the time of the undefended hearing.

18.The parties had commenced cohabitation in 2008, married in 2013 and separated on 7 March 2018 when the husband left the parties’ rented matrimonial home at Suburb J. The wife and children remained living in that property until 17 March 2018 when the wife and children moved out of that property and into the maternal grandparents’ home at Suburb H, where they remained up to the time of the undefended hearing.

19.The child X was born in 2010 and the parties moved into the maternal grandparent’s home after her birth. Shortly thereafter the husband lost his driver’s license and moved to reside at his parent’s home at Suburb E so as to be closer to his place of work. The parties lived separately at their respective parents’ homes for a period of between six and nine months soon after the birth of X with the husband staying occasional nights at the maternal grandparents’ home.

20.The wife was the primary carer for each of the children from the time of their birth until the parties’ separation and their sole carer thereafter.

21.Following separation the husband spent time with the children on about eight occasions. The children spent from 3.00PM on Saturday until 3.00PM on Sunday of the Easter weekend in 2018 with the husband, supervised by the paternal grandparents. The wife made it a condition of the husband spending time with the children that his time be supervised by his parents and, at her request, on 12 May 2018 the paternal grandparents provided signed undertakings to be present throughout his time with the children, but it came to the wife’s attention that the husband spent time with the children without his parents being present in June and July of 2018.

22.From separation until 8 September 2018, the children spoke to the husband by telephone, though the regularity of those calls is not apparent from the wife’s evidence. The wife gives evidence that during such calls, she heard the husband encouraging the children to use offensive language as to hear them do so, “would be really funny.” She also heard the husband making comments to the children, derogatory of her, including referring to her as “an idiot.”

23.Since around early September 2018, the husband has not contacted the children by telephone. The children have attempted to contact the husband between 10 and 15 times using the wife’s mobile telephone, but have been unsuccessful.

24.The husband has not spent any time with the children since August 2018. In 2018, the wife found that birthday presents had been left for X at the front door of the maternal grandparents’ house. In 2018, X’s birthday, X sent an email to the husband thanking him, but did not receive a response.

25.On 2 January 2019, the husband sent an email to the children wishing them a happy New Year and asking if they had received an email from him before Christmas (which the children had not received). The children responded to the husband by an email on 3 January 2019. On each of the emails referred to, both from the husband and to the husband, his email address is that referred to in the orders for substituted service and in the affidavits relating to service on him.

26.The text of the email from X to her father in 2018 is poignant:

Hey Daddy, thank you for my birthday present. I love you so much. I tried to call you again but I couldn’t get through I love you. Love X.

27.The wife was subjected to family violence by the husband, including at least six incidents of physical abuse, detailed in the wife’s affidavit in paragraphs 18 to 36. There is no need for me to repeat that evidence in these reasons following an undefended hearing other than to record that such abuse included:

a)Pushing the wife forcefully to the ground causing bruising;

b)Grabbing her around the throat with both hands, restricting her breathing, and thrusting her against hard surfaces. Such incidents were witnessed by Y;

c)Slamming a door into the side of the wife’s body as she was wedged between the door and the wall while the children were present in the house;

d)Pushing the wife against the car and causing her to fall to the ground in the presence of the children;

e)Tearing out a clump of the wife’s hair;

f)Punching her to the face, head, and body with a closed fist causing bleeding, bruising and black eyes; and

g)Grabbing and holding the wife’s wrist causing bruising.

28.On 2 March 2018 the wife found an application on her mobile telephone that sent her location to the husband’s email address.

29.As a result of all of the above and of threatening behaviour by the husband to the wife, a Provisional ADVO was issued by NSW Police for the protection of the wife from the husband on 17 March 2018.

30.On 5 April 2018 the husband telephoned to the wife’s mobile telephone from a private number in breach of the Provisional ADVO. He demanded that she change her statement to the police. On 10 April 2018 the husband was arrested and charged with breaching the Provisional ADVO. That matter was before the Local Court on 15 May 2018 and the husband pleaded not guilty. On 9 July 2018 a Final ADVO was made for a period of two years.

31.On 17 August 2018 the husband was found guilty in the Local Court at Suburb K of common assault and assault occasioning actual bodily harm. The wife was the victim in both matters. The husband received a section 9 bond.[2]

[2] Crimes Act 1900 (NSW), s 9.

32.Throughout the parties’ relationship and following separation until the contact between the parties ceased, the husband continually accused the wife of cheating on him and on such occasions he became enraged, abusive, and physically violent.

33.The husband was an inpatient at the L Clinic and then the M Clinic for a total period of five weeks in late 2015.

34.In 2017 the husband was convicted of a ‘Prescribed Concentration of Alcohol’ offence and lost his drivers license for a period of time.

35.In 2016 the wife attempted suicide, on her evidence, as a consequence of the abusive treatment she received from the husband throughout the relationship. She was voluntarily admitted to the M Clinic for about one week. She was not diagnosed with any mental health disorder. The wife receives assistance from a psychologist and, upon advice from the wife’s general practitioner, she obtained a mental health care plan for both the children and they consulted with a psychologist between April and June 2018.

36.In June 2018, the husband contacted the children’s psychologist and withdrew his consent for them to attend appointments and so for the period from June 2018 until orders were made on 26 February 2019, the children were not able to attend upon their psychologist. Since the orders were made on an interim undefended basis on 26 February 2019 that the wife have sole parental responsibility for the children, the children have returned to consultations with their psychologist for a further three occasions.

37.The children both attend J School. The wife is in full time employment working an average of 38 hours per week and she shares taking the children to school and picking them up with the maternal grandfather.

38.The wife planned for a holiday to take place in 2019 to Country N for herself and the children. A previous planned trip in 2018 to Country O had not taken place as the wife could not obtain the husband’s consent to the children being taken outside the Commonwealth of Australia.

39.The husband has not been involved in the children’s lives on a face to face basis since August 2018, and has not been involved on a telephone communication, or similar, basis since September 2018.

40.The last email contact between the husband and the children was the children’s responding email to the husband of 3 January 2019.

Property settlement

41.Neither of the parties had any assets of significance or liabilities at the time of commencing with cohabitation.

42.In 2012 the wife received $50,000 as an inheritance from her grandmother’s estate. During the course of the parties’ cohabitation they received gifts of money from the wife’s parents to a total of $72,635. Those funds were applied to the parties’ living expenses. Throughout the parties’ cohabitation the wife’s parents paid for private health insurance cover for the wife, the husband, and the children, to a total costs of $12,635.

43.In 2012, the parties purchased the B Street, Suburb C Property in the husband’s sole name. A deposit of $20,000 was paid from the parties’ joint savings and the balance was funded by way of a loan from the Commonwealth Bank of Australia secured by way of a registered mortgage on the B Street, Suburb C Property.

44.From January 2013 until October 2014 the parties and children lived with the wife’s parents rent free.

45.In 2016 the loan secured on the B Street, Suburb C Property was refinanced into a loan in the parties’ joint names. A further sum of $35,000 was added to the loan account to assist the parties with:

a)Living expenses in consequence of the husband being out of work for a part of that year;

b)To pay $8,000 towards school fees;

c)To pay $6,000 for purchase of a motorcycle by the husband;

d)To pay $5,500 to install fire doors at the B Street, Suburb C Property; and

e)To pay $7,500 off a credit card.

46.In 2016 the husband was involved in a car accident and the vehicle was written off. The parties received an insurance payout of $18,483.81 and applied those funds towards their living expenses.

47.In June 2016 the parties purchased Motor Vehicle 2 in the wife’s name for $65,000. They paid $10,000 from monies inherited by the wife from her grandmother and obtained finance for the balance.

48.After residing in the B Street, Suburb C Property for a period of time following its purchase, the parties moved out to reside with the wife’s parents as mentioned above and put tenants in at the B Street, Suburb C Property and applied the rent received to repayment of the loan account secured on the B Street, Suburb C Property. However, following separation the husband continued to receive the rent payments as they were paid into an account in his control and he failed to apply the rental repayments received to meet the loan repayments due in April and June 2018 and then from August 2018 until the undefended hearing in August 2019. This resulted in default notices under the relevant legislation being issued by the Commonwealth Bank and served on the wife in January 2019. The arrears of payments on the loan account were $6,753.77. The wife obtained the interim orders detailed above on 26 February, which appointed her as a trustee for sale of the property and arranged at her expense to have the property painted to improve prospects of obtaining tenants and sale.

49.As at the time of the undefended hearing the arrears on the payment of the loan accounts incurred on the B Street, Suburb C Property were at $10,788.28 and the amount outstanding for unpaid water rates, council rates, utilities and strata fees was about $8,000. The wife has entered into an arrangement with the Commonwealth Bank whereby she is able to refinance the property so as to add the arrears to the loan amount.

50.The wife was principally responsible for the day to day care and control of the children during cohabitation and solely responsible for their care following separation. The wife was also primarily responsible for all home maker duties during the relationship and did all of the cooking, cleaning, and general home making.

51.On 17 December 2018 the Child Support Agency issued a child support assessment at the wife’s application. The husband was assessed to pay $246.61 per week of child support. The husband did not make all of the required payments and arrears accrued. On 21 March 2019 the Child Support Agency issued a further child support assessment, pursuant to which the husband was assessed to pay $35.58 per month. The arrears of child support at the time of the undefended hearing was $1,236.59.

52.Following the interim orders on 26 February 2019 that appointed the wife as a trustee for sale of the B Street, Suburb C Property, she made inquiries of various real estate agents with a view to listing the B Street, Suburb C Property for sale. The advice she received indicated that on such sale the B Street, Suburb C Property would be sold at a loss. The wife took steps to find a tenant for the property and her solicitors wrote to the husband requiring him to remove his motor vehicle from the garage of the property. They did not receive a response.

53.On 3 June 2019 the wife made arrangements for the husband’s car to be removed from the garage of the B Street, Suburb C Property so that the tenants could gain access. Through the real estate agent the wife engaged a tow truck driver and the real estate agents made arrangements for the lock to be opened so that the car could be removed. When the tow truck driver arrived at the B Street, Suburb C Property, the husband was present and he was verbally abusive towards the tow truck driver who then, no doubt wisely, left the B Street, Suburb C Property without removing the car. The wife incurred a cost in relation to the towing fee in the sum of $180. As a result of the husband’s car remaining at the B Street, Suburb C Property the wife reduced the rent payable by the tenants from $425 per week to $400.

The law

Parenting issues

54.In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act.[3]

[3] MRR & GR (2010) HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.

55.The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[4] That section also contains the principles behind those objects. In this matter, I have considered those objects and the principles behind those objects.

[4] Family Law Act 1975 (Cth) s 60B.

56.Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.

57.In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[5] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[6]

[5] Family Law Act 1975 (Cth) s 65D(1).

[6] Family Law Act 1975 (Cth) s 65D(2).

58.In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings.[7]

[7] Family Law Act 1975 (Cth) s 60CC.

59.Section 61DA provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[8]

[8] Family Law Act 1975 (Cth) s 61DA.

60.The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[9]

[9] Family Law Act 1975 (Cth) s 60B.

61.If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:

a)Whether the child spending equal time with each parent would be in the best interest of the child;[10] and

b)Whether the child spending equal time with each of the parents is reasonably practicable.[11]

[10] Family Law Act 1975 (Cth) s 65DAA(1)(a).

[11] Family Law Act 1975 (Cth) s 65DAA(1)(b).

If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[12]

[12] Family Law Act 1975 (Cth) s 65DAA(1)(c).

62.If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.

63.What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes:

a)Days that fall on weekends and holidays;[13]

b)Days that do not fall on weekends or holidays;[14]

c)The child being able to be involved in occasions and events special to the parents;[15]

d)The parents being able to be involved in occasions and events of particular significance to the child;[16] and

e)The parents being able to be involved in the child’s daily routine.[17]

[13] Family Law Act 1975 (Cth) s 65DAA(3)(a)(i).

[14] Family Law Act 1975 (Cth) s 65DAA(3)(a)(ii).

[15] Family Law Act 1975 (Cth) s 65DAA(3)(c).

[16] Family Law Act 1975 (Cth) s 65DAA(3)(b)(ii).

[17] Family Law Act 1975 (Cth) s 65DAA(3)(b)(i).

64.If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.

65.As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamieson:[18]

A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[19]

[18] Grella & Jamieson [2017] FamCAFC 21.

[19] Grella & Jamieson [2017] FamCAFC 21, [18].

66.There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court, where risks are asserted, is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in parenting proceedings replete with contested evidence.

67.Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:

a)Assess whether that risk is an acceptable risk or an unacceptable risk;

b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and

c)Decide what orders are proper in all the circumstances in the best interests of the child.

68.Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[20] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative;[21] Napier & Hepburn;[22] Johnson & Page;[23] Deiter & Deiter;[24] and Eaby & Speelman.[25]

[20] M & M (1988) FLC 91-973.

[21] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].

[22] Napier & Hepburn (2006) FLC 93-303.

[23] Johnson & Page (2007) FLC 93-344.

[24] Deiter & Deiter [2011] FamCAFC 82, [61].

[25] Eaby & Speelman (2015) FLC 93‑654.

69.The process is one involving the exercise by the court of a judicial discretion.

70.As was said by the High Court in Bondelmonte v Bondelmonte,[26] paragraph 32 of the joint judgment of the bench:

[32] A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant [Family Law Act 1975 (Cth) s 60CC(3)(m)]. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis v Norbis (1986) 161 CLR 513 at 518] , as does the overall assessment of what is in the best interests of the child.[27]

[26] Bondelmonte v Bondelmonte (2017) CLR 662.

[27] Bondelmonte v Bondelmonte (2017) CLR 662, [32].

Property Settlement

71.The law relating to the alteration of property interests between two parties to a marriage is governed by section 79 of the Act.[28] Relevant in this case, section 79(1) vests the Court with power to alter the interests of the parties in property,[29] and the power to make orders providing for the settlement or transfer of property, as determined by the Court.[30]

[28] Family Law Act 1975 (Cth) s 79.

[29] Family Law Act 1975 (Cth) s 79(1)(a).

[30] Family Law Act 1975 (Cth) s 79(1)(d).

72.However, the Court must not make an order under section 79 unless the Court is satisfied that, in all of the circumstances, it is just and equitable to do so.[31] To give proper consideration to the legislative process required by section 79, it is necessary to consider the High Court decision in Stanford & Stanford.[32]

[31] Family Law Act 1975 (Cth) s 79(2).

[32] Stanford & Stanford (2012) 247 CLR 108.

73.In that decision, the High Court held that section 79(2) requires that at the outset of the Court’s decision-making process the Court must consider whether or not, in all the circumstances, it is just and equitable to make an order under section 79(1) altering the interests of the parties to the marriage in property.

Is it just and equitable to make an order under section 79?

74.In considering the proposition posed by this first step, a Court should start by identifying items under the following categories:

a)The existing legal and equitable interests of the parties in property, according to ordinary common law and equitable principles;

b)The existing liabilities of the parties, according to ordinary common law and equitable principles and under legislation; and

c)The rights of the parties, if any, according to ordinary common law and equitable principles and under legislation, in relation to any asserted resources of the parties that may, if it is considered just and equitable to proceed with the property settlement, be taken into account in the Court’s consideration of the matters referred to in section 75(2) of the Act, to which section 79(4)(e) directs the Court’s attention.[33]

[33] Stanford & Stanford (2012) 247 CLR 108; see especially [37].

75.I further note the comments of the High Court in Stanford at paragraph 42 which I reproduce in full here:

In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).[34]

[34] Stanford & Stanford (2012) 247 CLR 108, [42] (emphasis added).

76.The non-participation of the husband in these proceedings indicates that the wife will have considerable difficulty in having the husband participate with her in dividing their assets. Further, the evidence outlined above and below indicates that there has been both an inequality of contribution to a degree between the parties on an overall basis from the commencement of their cohabitation to the time of hearing, particularly post separation, and that a division of jointly held assets along general law and equity entitlement lines would be unjust. Turning to the future, the injustice is particularly acute given that the wife is currently, for all practical purposes, the sole parent to the children.

77.Accordingly, I find that it is just and equitable to proceed with alteration of the parties’ interests in their property as reflected in the matrimonial asset pool.

What orders under section 79 are appropriate to be made?

78.Having determined that it is indeed just and equitable to make an order under section 79, the Court is then tasked with the job of considering what orders are appropriate to be made. In doing so, I follow the four-step process set out in Hickey & Hickey.[35]

[35] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395, [39].

79.In Hickey, the Full Court of the Family Court set out a process of four inter-related steps that must be taken by a court when determining a property application:

a)First, “the Court should make findings as to the identity and value of the property, liabilities, and financial resources of the parties at the date of the hearing”;[36]

b)Second, “the Court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b), and (c), and determine the contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties”; [37]

c)Third, “the Court should identify and assess the relevant matters … (“the other factors”) including…the matters referred to in section 75(2) so far as they are relevant…”;[38]

d)Fourth, “the Court should … resolve what order is just and equitable in all the circumstances of the case”.[39]

[36] Hickey [2003] FamCA 395, [39].

[37] Hickey [2003] FamCA 395, [39]. See also Family Law Act 1975 (Cth) s 79(4)(a)-(c):

[38] Hickey [2003] FamCA 395, [39].

[39] Hickey [2003] FamCA 395, [39].

The best interests of the children – section 60CC

80.In determining what is in the children’s best interests the Court must consider the matter set out as primary considerations and additional considerations in section 60CC of the Act.

81.The primary considerations are the benefit to the children of having a meaningful relationship with both their parents and any need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[40]

[40] Family Law Act 1975 (Cth), s 60CC(2).

82.The children have a meaningful relationship, a close and loving relationship with their mother. She has been their primary carer since birth, their sole carer since the parties separated in March 2018, and they continue to live with her and be cared for her on a day to day basis.

83.Whether or not there is a benefit to the children of having a meaningful relationship with their father is bound up with the second of the primary considerations, being a need to protect the children. The history of family violence detailed in the mother’s evidence, including occasions occurring in the presence of one or both of the children, may well have had an effect upon the relationship between the children and their father. However, on the evidence I can make no assessment of that and therefore make no findings in that regard.

84.I do note that the email messages passing between the children and their father in December 2018 and January 2019 indicate that there was at that time, and probably still is, a loving relationship between the children and their father. I have quoted in full X’s email to her father in 2018, her birthday. In the email of 3 January 2019 from the children to their father, addressed “Hi Daddy” is included the following:

Dad, this is Y. I love you P.S. I love so much super duper. Santa got me Minecraft, Lego and I want to show you. We hope to see you soon too. Lots of love.

85.Sadly for the relationship between the children and their father, that appeared to have been their last contact prior to the undefended hearing.[41] The father’s propensity to commit family violence and his willingness to encourage the children to use offensive language because it would be funny for him, and to be derogatory of their mother in the presence of the children presents an unacceptable risk to the children in spending time with or communicating with their with father without safeguards being put in place by orders. Such orders would have to include appropriate supervision. I find that at the present time, and in the absence of the husband taking any active part in these proceedings despite the Court being satisfied that they have been brought to his attention on numerous occasions, it is a sad circumstance where the need to protect the children must currently override them having an opportunity to have a meaningful relationship with their father.

[41] Family Law Act 1975 (Cth), s 60CC(3)(b).

86.Therefore, and under the primary considerations, I find that it is appropriate that orders be made in terms of the orders sought by the mother without any specific orders being made in relation to time to be spent between the father and children or for communication between the father and the children.

87.No evidence was available in relation to any views of the children concerning their relationship with their father or spending time with and communicating with their father. The content of the emails properly and fairly put in evidence by the wife and quoted above indicates by strong inference that the children would like to have a relationship with their father, would like to see him, and would like to speak to him. However, the father by his own actions in failing to take any steps either outside of Court or through the Court process to arrange time with and communication with his children, has anchored a finding that it is not in the best interests of the children to make orders outside those sought by the wife.

88.The comments I have just made deal with the nature of the relationship of the children with each of their parents and also deal with the father’s failure to take the opportunity to spend time with the children and communicate with the children.[42]

[42] Family Law Act 1975 (Cth) s 60CC(3)(c).

89.On the mother’s evidence in relation to the father’s record with child support he has failed to fulfil his obligation to maintain the children.[43]

[43] Family Law Act 1975 (Cth) s 60CC(3)(ca).

90.The orders proposed by the mother on the undefended hearing do not cause change in the children’s circumstances.[44]

[44] Family Law Act 1975 (Cth) s 60CC(3)(d).

91.The evidence presented in the undefended hearing by the mother causes serious concern about the father’s capacity to provide for the needs of the children including their emotional and intellectual needs.[45] Without further evidence in that regard I can only make the finding that the father lacks adequate capacity to provide for the needs of the children, including their emotional and intellectual needs.

[45] Family Law Act 1975 (Cth) s 60CC(3)(f).

92.There has been extensive and serious family violence perpetrated by the father against the mother including serious battery and the occasioning of actual bodily harm, including the tearing out of a clump of her hair and serious facial bruising.[46] The father has been convicted of common assault where the mother is the victim, and the father has been convicted of assault occasioning actual bodily harm where the mother is the victim.[47] He would seem to have had the benefit of leniency on sentence for those matters.

[46] Family Law Act 1975 (Cth) s 60CC(3)(j).

[47] Family Law Act 1975 (Cth) s 60CC(3)(k).

93.A final family violence order applied in this matter from 9 July 2018 until 8 July 2020.[48] At the time of the preparation of these reasons that order is still in force.

[48] Family Law Act 1975 (Cth) s 60CC(3)(k).

94.It is always preferable in parenting matters to make orders that would be least likely to lead the institution of any further proceedings in relation to the children.[49] That is not always possible in undefended hearings. However, in view of the provisions of rule 16.05 of the FCC Rules I made an order on 12 August 2019 that any application to be brought by the husband under that rule must be brought by him no later than 21 days after the date on which there has been compliance with the order made that day for service of those orders on the husband.

[49] Family Law Act 1975 (Cth) s 60CC(3)(l).

Parental Responsibility

95.In this matter the presumption of equal shared parental responsibility as set out in section 61DA of the Act does not apply as there are more than reasonable grounds to believe that the husband has engaged in family violence.[50] The husband has been convicted of common assault and assault occasioning actual bodily harm against the mother. The father is not taking any active part in the children’s lives, has not communicated with or sought to communicate with the children since early January 2019, and he has not seen them since August 2018.

[50] Family Law Act 1975 (Cth), s 61DA(2)(a)-(b).

96.It is in the best interests of the children that the mother have sole parental responsibility for the children. There is no evidence before the Court at the undefended hearing that would lead the Court to find anything other than that any overseas holiday taken by the mother with the children will be purely for the purpose of holiday and the children will return to Australia at the end of the holiday. Accordingly, I find it in the best interests of the children that the mother be able to renew the children’s passports as required without requiring the consent of the husband. I also find that mother will be able to take the children for holidays outside Australia without having to comply with section 65Y of the Act, by obtaining the written consent of the father signed by him before a person prescribed in section 8 of the Statutory Declarations Act 1959 (Cth) as required by regulation 13 of the Family Law Regulations 1984(Cth).

Consideration of Property Matters

97.I find the matrimonial asset pool to be composed as follows:

Assets

Item Number:	Owner:	Property:	Value
1	Husband	Real Property at B Street, Suburb C, NSW	$500,000
2	Wife	Savings in P Bank	$800
3	Wife	Motor Vehicle 2, registration number ...	$35,000
4	Husband	Motorbike	$10,000
5	Husband	Motor Vehicle 1	$15,000
TOTAL ASSETS	$560,800

Liabilities

Item Number:	Owner:	Property:	Value
6	Joint	Loan account with the Commonwealth Bank secured on the B Street, Suburb C Property	$212,478
7	Wife	Q Finance GO Mastercard	$3,427
8	Wife	Commonwealth Bank Mastercard	$3,350
9	Wife	Motor Vehicle 2 vehicle finance	$39,651
10	Husband	Motorbike finance	$10,000
11	Wife	HECS Debt	$29,475
TOTAL LIABILITIES	$298,381

Superannuation

Item Number:	Owner:	Property:	Value
12	Wife	Super Fund R	$23,532
13	Wife	Super Fund S	$3,511
14	Husband	Super Fund T	$72,770
TOTAL SUPERANNUATION	$99,813

98.Accordingly the net matrimonial asset pool with superannuation is $362,232, and without superannuation is $262,419. The wife has not sought any superannuation splitting order. I will apply a global approach to the matrimonial asset pool and include superannuation and the available assets in one pool, and all of the liabilities subtracted thereafter. Accordingly I find that the net matrimonial asset pool has a value of $362,232.

99.The B Street, Suburb C Property is in the husband’s sole name. It is the principal asset and on the evidence its net value represents 79 per cent (rounded to nearest whole figure) of the net matrimonial asset pool.

100.The parties’ marital relationship has come to end and if no order is made under section 79 of the Act adjusting property between the parties then the husband would retain by far the greater portion of the net matrimonial assets. If this were to occur, and based on my consideration of the evidence, it would be unjust and inequitable.

101.Accordingly, I find that it is just and equitable to proceed with the making of property settlement orders under section 79 of the Act.

102.The wife made a sole contribution of $50,000 inherited from her grandmother in 2012. The wife’s parents made contributions on her behalf of $72, 635 toward the parties’ living expenses over the period of the relationship and a contribution of $12,635 for the provision of private health cover for the parties during the relationship. There is no evidence that these contributions were made by the wife’s parents with the intention that they benefit the parties jointly, and I find that the assistance provided by the wife’s parents is treated as a sole contribution made on her behalf.[51]

[51]Mabb & Mabb & Another (2020) [2020] FAMCAFC 18.

103.The parties lived rent-free with the wife’s parents from January 2013 until October 2014. Following that period the parties lived in rented accommodation until their separation in March 2018 at a cost of approximately $650 per week.

104.There is inference in the wife’s evidence that the husband benefitted solely as between himself and the wife from rental income from the B Street, Suburb C Property following the separation by not applying rental income on all occasions to a repayment of the loan account secured on the property. The duration and amount is uncertain. Nevertheless, the wife finds herself with increased indebtedness due to arrears of the loan account and unpaid rates, utilities, and strata fees in the sum of about $19,000.

105.The wife was principally responsible as between the parties for the parenting and home maker contributions for the family unit during the parties’ cohabitation. The wife has been solely responsible as between the parties for the day to day care and parenting of the children since the parties separated. Similarly, the wife has been the principal financial support for the children since the parties separated, with very little financial assistance from the husband.

106.On a holistic basis, taking into account all of the contributions of each of the parties and contributions made on behalf of the wife by her parents I find that the parties’ relevant contributions favour the wife by 60 per cent for the wife and 40 per cent for the husband.

Consideration of section 79(4)(e) – section 75(2) of the Act

107.At the time of the undefended hearing the husband was 33 years of age and the wife was 31 years of age.[52] X was nine years and seven months of age and Y was six years and six months of age.

[52] Family Law Act 1975 (Cth) s 75(2)(a).

108.The wife indicates in paragraphs 37 to 45 of her affidavit that the husband has suffered from some mental health problems during their relationship. In paragraphs 46 to 49 of her affidavit she details some medical concerns that arose for her in 2006 as a result of her treatment during the relationship at the hands of the husband.[53] The case presented by the wife does not ground a finding that the conduct of the husband, particularly in relation to family violence perpetrated by him against the wife, was of such extent during the relationship and had such an effect on the wife that it has been demonstrated by her to have had a significant impact upon her contributions to the marriage by making those contributions significantly more arduous than they ought to have been. In other words, the case presented by the wife does not amount to what has become known as a ‘Kennon case’.[54]

[53] Family Law Act 1975 (Cth) s 75(2)(a).

[54] Kennon & Kennon (1997) 22 FAMLR 1.

109.The income, property, and financial resources of the wife are as set out in her Financial Statement sworn 15 July 2019.[55] She is in full time employment in a management position on an income above the national average. Her Financial Statement reflects that by very careful management her expenses exceed her income by only 80 cents.

[55] Family Law Act 1975 (Cth) s 75(2)(b).

110.I have no Financial Statement from the husband, he having chosen not to involve himself in the proceedings.

111.The wife has ongoing care and control of the children of the marriage who were nine years and six years of age at the time of the undefended hearing.[56] It seems plain that the wife will have their ongoing care until they reach their majority and that she will be their principal, if not only, financial support throughout that time. The children are the only other persons whom the wife is responsible to support. The husband’s circumstances are not known.[57]

[56] Family Law Act 1975 (Cth) s 75(2)(c).

[57] Family Law Act 1975 (Cth) s 75(2)(d)-(e).

112.There is a need to protect the wife, who will continue her role as a parent, by providing to her the opportunity to go forward owning the principal capital asset in the matrimonial asset pool, with a view to that capital asset providing both a backup place to live, if necessary, for herself and the children whilst it is not being used as their home, and as an income generating asset that may be or be close to being self-funding so far as the rental income meeting the liability of the loan account secured on the property.

113.I find that all of the above mentioned factors under section 75(2) favour an adjustment in favour of the wife and I find that appropriate adjustment is 16 percentage points in favour of the wife.

114.Accordingly, that means an overall division of the net matrimonial asset pool, including superannuation, of 76 per cent to the wife and 24 per cent to the husband. That is the result contended for by the wife in her Amended Initiating Application and submitted for by her counsel in the Case Outline document.

115.I find it is just and equitable to make orders in exact accordance with the orders sought by the wife as set out in her counsel’s Case Outline document, except for an order that the husband indemnify the wife in relation to all liabilities in his name. This is because the wife does not need that indemnity as debts in the husband’s sole name, or jointly in name of the husband and any other person or persons other than the wife cannot be visited on the wife as there is no privity of contract.

116.I find that it is proper to make an order under section 106A of the Act to provide for a Registrar of the Federal Circuit Court at the Sydney Registry to complete any document required to give effect to the orders in the event of any default in that regard by the husband. Such an order is likely to be utilised in view of the husband’s failure or refusal to engage with the proceedings at any time, and his failure to have his car moved from the B Street, Suburb C property.

117.I also find on the basis of an oral application by counsel for the wife that it is proper to make an order that if the husband’s Motor Vehicle 1 unregistered motor vehicle is not removed by him or on his behalf from the B Street, Suburb C Property within 14 days of service on him of a copy of the orders, then that vehicle will become the sole property in law and in equity of the wife as between herself and the husband and she will be entitled thereafter to dispose of that vehicle as she chooses.

118.Whilst this may cause a tilting of the percentage division of the net matrimonial assets in favour of the wife beyond the 76 per cent I have referred to above I find that such an order is just and equitable within the Court’s discretion due to the longstanding refusal of the husband to remove that vehicle from that property, the financial hardship that the wife has suffered in receiving reduced rental income from the property in consequence, and to prevent the continuation of that circumstance.

119.

If such circumstance needs to be dealt with in any more ‘formal’ sense then I find that it is appropriate pursuant to section 75(2)(o) of the Act to make a further adjustment in favour of the wife of 4.14 per cent (rounded to two decimal places) in the event that the husband fails or refuses to remove the vehicle so as to maximise the wife’s potential rental income from the B Street, Suburb C Property. If that circumstance eventuates the division between the parties on a just and equitable basis will be 80.14 per cent (rounded to two decimal places) to the wife and 19.86 (rounded to two decimal places) to the husband.

120.Accordingly, I make the orders set out at the start of these reason.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Morley

Associate:

Date: 3 August 2020

(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

(a) the financial contribution made directly or indirectly by or on behalf of a party …
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party …;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage … including any contribution made in the capacity of homemaker or parent; …