Yasmine & Nico
[2021] FedCFamC2F 155
•17 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yasmine & Nico [2021] FedCFamC2F 155
File number(s): ADC 5750 of 2020 Judgment of: JUDGE BROWN Date of judgment: 17 September 2021 Catchwords: FAMILY LAW – FINAL HEARING – undefended hearing – property law – property settlement – where the parties relationship was approximately ten years in length – where the respondent has never taken part in the proceedings or filed material before the court – where there is one child of the relationship that is not subject to proceedings – where the financial relationship of the parties must be concluded – where the respondent has been provided with ample opportunities to partake in the proceedings – consideration of the legislation relating to property settlement – where the property pool is extremely modest Legislation: Family Law Act 1975 (Cth), ss 90SM, 90SF
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rr 10.26-10.27
Division: Division 2 Family Law Number of paragraphs: 29 Date of hearing: 17 September 2021 Place: Adelaide Counsel for the Applicant: Mr Praolini Solicitor for the Applicant: Legal Services Commission of South Australia Solicitor for the Respondent: No appearance ORDERS
ADC 5750 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS YASMINE
Applicant
AND: MR NICO
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
17 SEPTEMBER 2021
UPON NOTING final orders were made on 17 September 2021 but were to lie on the file pending procedural fairness
UPON FURTHER NOTING a letter from Super fund B dated 30 September 2021 confirming no objection to the orders being made
THE COURT ORDERS THAT:
1.That within THIRTY (30) DAYS of the date of these orders the applicant shall do all such things and sign all such documents to fully discharge Commonwealth Bank Personal Loan and Commonwealth Bank Home Loan associated with the property situate at C Road, Suburb D in the state of South Australia being the whole of the land described and comprised as Certificate of Title Register Book Volume XXXX Folio XXX (the Suburb D property) at her sole expense and the applicant shall indemnify and keep indemnified the respondent in respect to any liability arising therefrom.
2.That contemporaneously with paragraph 1 herein, the respondent shall do all such acts and sign all such documents to transfer the respondent’s interest in the Suburb D property to the applicant at the applicant’s expense.
3.That by way of superannuation splitting in accordance with section 90XT(4) of the Family Law Act 1975, a base amount of TWENTY FIVE THOUSAND DOLLARS ($25,000) is allocated to the applicant out of the respondent’s interest in the Super fund B, member number: XXXXX XX
4.That in accordance with Section 90XT(1)(a) of the of the Family Law Act 1975:
(a)The applicant (or the applicant’s administrators, executors, beneficiaries, heirs or assignees) is entitled to be paid, using the base amount allocated in the immediately preceding Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)The entitlement of the respondent in the Super fund B, (or the entitlement of such other person who becomes entitled to receive a payment out of the respondent’s superannuation interest) is correspondingly reduced by force of this order.
5.That the Trustee of the Super fund B, (Super Fund B Pty Limited) shall do all such acts and things and sign all documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the applicant in the immediately preceding clause of this order; and
(b)Pay the entitlement whenever Super Fund B Limited makes a splittable payment from the respondent’s interest in the Superannuation Fund B.
6.That this Order has effect from the operative time and the operative time is four (4) days from the date of service of this Order on Super fund B Limited.
7.That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (the SIS Regulations) the respondent shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the applicant’s request in accordance with the SIS Regulations, for the retention of the non-member spouse interest in the applicant’s name in the Superannuation Fund B.
8.The Court notes:
(a)The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b)Any payments from the respondent’s superannuation interest in the Superannuation Fund B, made after Superannuation Fund B Limited has created a new interest in the applicant’s name in the Superannuation Fund B, are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
9.That the respondent do all such things to transfer the registration of the camper trailer to the applicant.
10.Henceforth the applicant shall retain for her sole use and benefit absolutely free from any claim from the respondent all of her interest in the following:
(a)The Suburb D property
(b)Any savings, investments or shares in the applicant’s name.
(c)Any furniture and effects in the applicant’s possession.
(d)Any motor vehicle presently in applicant’s possession.
(e)Any superannuation, retirement benefit or rollover benefit in the applicant’s name inclusive of the superannuation split herein.
(f)The camper trailer in the applicant’s possession.
(g)Any other personal property in the possession or name of the applicant not otherwise specified herein.
11.That henceforth the respondent shall retain for his sole use and benefit absolutely free from any claim from the applicant all of his interest in the following:
(a)Any savings, investments or shares in the respondent’s name.
(b)Any furniture and effects in the respondent’s possession.
(c)Any motor vehicle presently in the respondent’s possession.
(d)Any superannuation, retirement benefit or rollover benefit in the respondent’s name save and except for the superannuation split herein.
(e)Any other personal property in the possession or name of the respondent not otherwise specified herein.
12.Hereafter the wife shall meet payment of all of her personal debts and liabilities in her own name to the complete exoneration of the husband, who shall have no liability in respect thereto and the wife does indemnify the husband against all claims, expenses and losses or demands incurred as a result of the wife’s personal debts.
13.Hereafter the husband shall meet payment of all of his personal debts and liabilities in his own name to the complete exoneration of the wife, who shall have no liability in respect thereto and the husband does indemnify the wife against all claims, expenses and losses or demands incurred as a result of the husband’s personal debts.
14.Each party shall do all such acts and things and sign all such necessary documents to give effect to the terms of this Order.
15.Subject to the specific provisions of this Order each party shall release the other from any liability from any claim that either one may have against the other in respect to any property either now or hereinafter owned by either of them.
16.That each party shall pay their own costs of and incidental to this application.
17.That if either party shall refuse or neglect to execute any document which may be necessary or desirable to give full force and effect to the terms of this Order within 7 days after the same shall have been tendered to that party then in such case the Registrar or Deputy Registrar of the Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and do all such other acts and things and execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.
18.Liberty to either party to apply as to consequential orders.
19.All extant applications be otherwise dismissed and the matter removed from the pending case list as finalised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Yasmine & Nico has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore)JUDGE BROWN:
The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. These reasons have been corrected of errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
This morning, I have to deal with undefended property proceedings in which the applicant is Ms Yasmine and the respondent is Mr Nico. I will refer to Ms Yasmine in these orally delivered reasons for judgment as ‘the applicant’ and to Mr Nico as ‘the respondent’. The applicant commenced these proceedings on 1 December 2021 and they were made returnable about a week later on 8 December 2021.
The application was personally served on the respondent at an address in suburban Adelaide on 6 December 2020. When the case came into court for the first time before Registrar Brown, the respondent did not appear and the case was adjourned in his absence to 2 February. On this latter date, the respondent was ordered to file some answering documents, and an injunction was made restraining him from withdrawing any further amounts from his superannuation account.
The case was then adjourned until March and a further accommodation was made to allow Mr Nico to take part in the proceedings. Mr Nico has never appeared in court. He has never filed any documents, and as a consequence on 21 June 2021 the case was fixed for an undefended hearing. Ms Yasmine, the applicant has filed a lengthy affidavit which sets out the history of the parties’ relationship with one another.
By way of background, the applicant is 39 years of age and Mr Nico is only a few weeks older than she is. He too is 39 years of age. The parties began a relationship together and began to live together in 2008. They have never been married and they separated on in 2019 so accordingly the relationship between them was one of about a decade or so.
Significantly, they are the parents of one child, X, who was born in 2014, so X is seven years of age. For the first years of the parties’ relationship their financial affairs were relatively commonplace. As many young couples do, they purchased a home as joint tenants in which to live at Suburb D, and that property was purchased in 2009. It was jointly registered in the parties’ names that the purchase price was $289,500.00.
The applicant utilised some of her personal savings as a deposit but, significantly, the applicant’s parents guaranteed the purchase. During the parties’ relationship, each of them worked, save and except when Ms Yasmine took maternity leave in respect of X. However, she only took a bare minimum of maternity leave and returned to work on a part-time basis.
The implication I have from reading Ms Yasmine’s affidavit is that to a certain extent the parties had different attitude towards finances and it seems to be the case that she used her wages to pay the parties’ major debts and Mr Nico’s income was utilised for more mundane living expenses. It is also my impression, which maybe wrong, that she is a more prudent person financially and Mr Nico is not so cautious.
The parties have had a number of motor vehicles over the years and significantly Mr Nico bought an expensive motorcycle in 2016 for $27,000.00. He still has that motor vehicle. Otherwise, from time to time the parties fell into difficulties with car loans in respect of a car which they found they could not afford. It is, I think, the implication of Ms Yasmine’s evidence that she has during the parties’ relationship ensured that the Suburb D property mortgage has been kept in the black as it were.
The parties have each worked during the relationship. Mr Nico has had a number of jobs. He has been a transport worker, and other things of that nature, and at the present time Ms Yasmine works for a company called Company E and she is a Manager. She receives a modest income of about $53,000.00 per annum and in the past Mr Nico has been able to earn a little bit more than that up to about $80,000.00.
The applicant has received some inheritances during the relationship and Mr Nico has received a WorkCover payment. He left employment in mid-2018 as a consequence of a stress claim. I do not know very much about that and it seems to be the case that shortly after that the wheels fell off in terms of his life.
It is Ms Nico’s evidence that around that time he became addicted to methamphetamines unbeknownst to her, and that has been a financial disaster to a certain extent and moneys have been withdrawn from personal loans and so on and so forth. What is the current state of Mr Nico’s health and his drug addiction is unknown to her, other than late last year she learnt that he had been charged with drug trafficking and money laundering which are, of course, very significant charges, but what is going to be the outcome of those is unknown to me.
So from mid-2018, life has been extremely difficult, it would seem, for Ms Nico. It is her position that the respondent was violent towards her and that that violence occurred in the presence of X. The applicant has an intervention order in her favour. In her own words, Mr Nico went into a dark place and in those circumstances, she has had to keep going, and looking after X. This included working, paying the mortgage, keeping a roof over her and X’s head.
It is clearly appropriate that the financial relationship between Ms Yasmine and Mr Nico is brought to a conclusion. That, of course, poses some difficulties for the Court because I have only evidence from one party, but I am satisfied that Mr Nico has been given ample opportunity to take part in these proceedings.
Notwithstanding that, it is a significant thing for a court to determine issues to do with a person’s property in their absence. Before a person can be affected by a court order, they must be given an opportunity to be heard, but for the reasons I have given, I am satisfied that Mr Nico has been given an adequate opportunity to appear in these proceedings and present his point of view. He has not taken that opportunity. Whether that is to do with his methamphetamine addiction or some other factor, I do not know.
Ms Yasmine is entitled to have her application heard within a reasonable period of time, notwithstanding that Mr Nico has done nothing. In these circumstances, I have authority under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to enter judgment against a respondent if a respondent defaults in complying with a court order, or fails to prosecute any proceedings with due diligence.[1] I am satisfied that Mr Nico has not defended these proceedings with due diligence. He has not complied with court orders. He has not attended at court and therefore the proceedings need to be finalised in his absence.
[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.26-10.27.
The process to be followed for the division of de facto property is well-established by law and the relevant legal principles are primarily contained in section 90SM(4) and section 90SF(3) of the Family Law Act 1975 (Cth) (‘the Act’).
In summary, I am obliged to follow a number of steps. The first thing I must do is ascertain the parties’ assets and liabilities. Thereafter, at the second step, I must assess the contributions which each party has made towards the pool of assets. In broad terms, there are two kinds of contributions that I have to take into account: financial contributions and non-financial contributions.
I am also required to take into account contributions made to the welfare of the family. Those contributions are to be given real rather than token weight. The third step involves assessing the respective needs of either party. Finally, pursuant to section 90SM(4) I must ensure that the orders that are made are just and equitable. Ms Yasmine is not entitled to all of the property just because Mr Nico has not appeared. I need to be satisfied that whatever order I make is a just and equitable one.
The pool of property to be divided between the parties is extremely modest. The most significant item being the Suburb D property which Ms Yasmine has deposed is worth about $315,000.00 and is subject to loans of about $265,000.00 plus. So the equity in the property is extremely modest after it has been owned by the parties for a period in excess of about a decade.
Otherwise, there is the husband’s motorcycle which, as vehicles do, has depreciated since the time it was bought. The applicant has some modest savings and a camper trailer that is not worth a great deal of money. Otherwise, as a consequence of her stability and continued employment that the wife has superannuation in an industry fund in about a sum of about $124,000.00.
The husband’s superannuation has diminished as a consequence of withdrawals which were authorised by the pandemic emergency. Whether those withdrawals have been wisely spent is not known to me. I fear perhaps not. In my view, the contribution assessment must favour Ms Yasmine. Significantly, her prospective needs, particularly in respect of having to parent X with little if any support from Mr Nico must dictate she receives the lion’s share of the parties’ matrimonial assets.
It is to her great credit that she has been able to, as I put it earlier, keep the lights on, keep the home fires burning for X and above all else she needs the security of a roof over her head. She will get that but with a very significant mortgage.
In terms of the superannuation, I was troubled about that, because superannuation, in effect, is a form of deferred saving. No one should access their superannuation until they need to use it to fund retirement. However, the government in its wisdom determined that in the extraordinary situation of the pandemic, people could access their superannuation.
The financial planners and people of that nature said it was not a good idea, and you should not do it. As I said, it is my impression Ms Yasmine is probably a bit more sensible than Mr Nico. She did not try and get her superannuation. She perhaps thought it is probably better to keep it growing. I agree with her. In all the circumstances, she has done the right thing.
I have come to the conclusion that fundamentally Ms Yasmine is on a modest income, is putting in the hard yards, and Mr Praolini, her counsel, has said the care of a young child inevitably impacts on a person’s ability to advance in the workforce and apply for better positions.
This is due to the requirement to attend school drop off and pick up, or if the child is sick you need to care for them and inevitably, that duty tends to fall on mothers, who are less well paid, and the statistics demonstrate that they have less superannuation than men when it comes to retirement. That has very significant implications for their future security.
For those reasons, I am persuaded that I should make the orders that are proposed on Ms Yasmine’s behalf. It leaves her with the security of a home which is paramount, a modest amount of superannuation on which to build. Mr Nico has his motorcycle. What is the state of his life, I don’t know, as he has not participated in these proceedings.
Clearly, there is no good news for him out of this process, but to a certain extent that is a situation of his own making. So for all of those reasons, I will make the orders that are proposed by the mother, with the amendment as I have foreshadowed about the camper trailer.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 15 October 2021
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