Yates and Langley

[2013] FCCA 1214

FEDERAL CIRCUIT COURT OF AUSTRALIA

YATES & LANGLEY [2013] FCCA 1214

Catchwords:
FAMILY LAW – Final property orders made on an undefended basis – de facto relationship of 11 years – s.90SM of the Family Law Act 1975 (Cth) considered – wife’s application acceded to – just and equitable to make the orders sought.

Legislation:  

Family Law Act 1975 (Cth), ss.90SM, 90SF(3)

Applicant: MS YATES

Respondent: MR LANGLEY

File Number: MLC 3618 of 2013

Judgment of: Judge Hartnett

Hearing date: 14 August 2013

Delivered at: Melbourne

Delivered on: 14 August 2013

REPRESENTATION

Counsel for the Applicant: Ms Trapski

Solicitors for the Applicant: Trapski Family Law

The Respondent: No appearance

THE COURT ORDERS THAT:

1. The proceeds from the sale of the property at Property M in the State of Victoria be distributed to the parties as follows:-

   (a)70 per cent to the Applicant wife; and

   (b)30 per cent to the Respondent husband.

2. In the event the Respondent husband does not contact the Applicant’s solicitor within 60 days of these orders being made, the solicitor for the Applicant wife be at liberty to deposit the Respondent husband’s proceeds into a fund as directed by the Legal Service Board, and advise the Respondent husband in writing of having done so to Property H in the State of Victoria.

3. Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:-

   (a)each party be solely entitled to the exclusion of the other to all other property (including choses of action) in the possession of such party as at the date of the orders;

   (b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

   (c)insurance policies remain in the sole possession of the owner named therein;

   (d)each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders; and

   (e)any joint tenancy of the parties in any real or personal estate is hereby severed.

4. The solicitors for the Applicant wife serve a sealed copy of these orders upon the Respondent husband by prepaid registered mail to Property H in the State of Victoria.

AND THE COURT NOTES THAT:

These orders shall as far as practicable finally determine the financial (and other) relationship between them and avoid further proceedings between them.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 3618 of 2013

MS YATES

Applicant

And

MR LANGLEY

Respondent

REASONS FOR JUDGMENT

1. These property proceedings were commenced by the Applicant de facto wife (‘the wife’) filing an Initiating Application on 8 May 2013.  The orders sought by the wife in her application are orders which the Court will accede to this day.  The wife relied upon Affidavits sworn by her on 6 May 2013 and 2 August 2013.  The wife further relied upon a Financial Statement sworn by her on 6 May 2013.  The proceedings were earlier before the Court on 29 May 2013.  On that occasion, there was no appearance on behalf of the Respondent de facto husband (‘the husband’).  The Court ordered ex parte on that occasion the following:-

   “1. The Initiating Application, Affidavit and Financial Statement filed by the Applicant on 8 May 2013 be served on any person/s over the age of 18 years at Property H along with a copy of these Orders within seven days, requesting that the person served bring the documents to the attention of the Respondent at the first available opportunity.

   2. The property situate at Property M in the State of Victoria (omitted) be placed on the market for sale by a real estate agent nominated by the Applicant and be sold for such a price as deemed appropriate by the engaged real estate agent and the Applicant jointly, with proceeds of sale to be distributed as follows:-

   (a) firstly, to the sales costs and commissions;

   (b) secondly, to discharge the mortgage and any other encumbrance/s; and

   (c) thirdly, the remainder to be held in the Applicant solicitor’s trust account on behalf of the parties pending further order of the Court or written agreement between the parties.

   3. The Applicant be permitted to do all things and sign all documents pertaining to the sale of the property at Property M without requiring the Respondent’s signature, or failing that:-    

   (a) pursuant to s.106A of the Family Law Act 1975 (Cth), a Registrar of the Melbourne Registry of the Family Court of Australia or such other person appointed by the Court be authorized to do all such acts and things and execute all such documents on behalf of either or both parties;

   (b) if either party procures compliance with this Order by obtaining execution of documents pursuant to the Order, then the party procuring such execution of documents will be indemnified by the party for his or her costs and expenses incurred in obtaining such compliance.

   4. The matter be adjourned for mention on 14 August 2013 at 9.45am.

   AND THE COURT NOTES THAT:

   In the event the Respondent has been served pursuant to paragraph 1 herein and does not attend Court on the adjourned date, the Applicant will make an application to proceed on an undefended basis.”

2. The wife also relies upon Affidavits sworn by Mr M on 22 May 2013 and 6 June 2013.  Mr M is a process server for (omitted) Pty Ltd and his Affidavit sworn 22 May 2013 attested as to attempted service upon the husband of the wife’s Initiating Application and material in support thereof; and his Affidavit sworn 6 June 2013 attested to compliance by the wife with order 1 of the Orders made by the Court on 29 May 2013.  Since the last hearing of the matter, the property situate at Property M in the State of Victoria (‘the property’), has been sold and the net proceeds of sale placed in the wife’s solicitor’s trust account on behalf of the parties, pending further order of this Court.  That amount is this day in the sum of approximately $83,189.87.  Those monies, in essence, represent the asset pool of the de facto parties save that in addition, the wife has a Honda (omitted) model motor vehicle in relation to which she paid a $500 deposit and financed the balance in the sum of $24,000 with (omitted).  She has no current equity in that vehicle.  Prior to that time, she had a motor vehicle which formed part of the asset pool of the parties whilst they resided together and which was a Hyundai (omitted) which was stolen in May 2012.  The wife received insurance monies of $6,900 for that vehicle and then applied these funds toward her living expenses.  Further, the wife has approximately $24,000 in superannuation entitlements with (omitted) Fund and it is her belief as set out in her Affidavit sworn 6 May 2013 at paragraph 12 that at separation, the husband had a similar sum in superannuation entitlements. 

History

1. The wife was born on (omitted) 1982.  She is 30 years of age.  The husband was born on (omitted) 1984 and he is now 28 years of age.  The parties commenced a relationship in 2001 and they separated late in 2012.  There are no children of their relationship.  An Intervention Order was made against the husband on the application of the wife on 5 February 2013 which will expire on 4 February 2015. 

2. These proceedings commenced on an abridgement of time basis as the wife was seeking to place the property on the property market for sale.  The parties had received a default notice from the mortgagee dated 28 February 2013.  Following their separation in late 2012, the wife left the property and took up accommodation in rental premises.  She had been solely meeting the mortgage repayments on the property from 2010 until late 2012 and was unable to continue to sustain those repayments and the payment of rental sums.  Accordingly, the mortgage fell into arrears, the husband having made no payments or contribution toward it since 2010.  The property was sold in accordance with orders of this Court and the net proceeds of sale remain to be divided between the parties. 

3. The parties purchased the property in 2007.  They did not have any monies with which to make a deposit and borrowed the entirety of the purchase price and other associated costs.  In addition to the mortgage sum, a personal loan was advanced in the sum of $32,000 which was repaid by the wife.  During the time that the wife attended to repayment of the personal loan, the husband attended to the mortgage repayments.  The title and mortgage were in the joint names of the parties. 

4. The wife’s evidence is that she was solely responsible for making the repayments towards the $32,000 personal loan and that the husband made the mortgage repayments to (omitted) until the end of 2010.  Thereafter, she became solely responsible for the mortgage repayments.  She moved out of the property in late 2011 for a brief time and being when the parties temporarily separated, but she continued to meet the mortgage repayments.  She moved out again and finally in early December 2012 and thereupon ceased making the necessary mortgage repayments.  At the time, she was attending to repayment of the parties’ bills and receiving telephone calls from creditors such as the local council.  She had little money and was required to seek assistance from her mother to be able to fund the basic necessities of life.

5. Both parties worked during the course of their relationship.  The husband working in various (omitted) and then obtaining a traineeship in (omitted) before holding a position for eight years as a (omitted) until 2010.  It is the wife’s evidence that the husband has been unemployed since 2010 and she believes he continues to remain unemployed, though there is no informed basis to her belief.

6. The wife has always worked in (omitted).  When she commenced to reside with the husband, she had two jobs.  For five years, she worked at both “(omitted)” and at “(omitted)”.  She is now in employment at (omitted) and (omitted) and, as a consequence of this employment at two workplaces, she earns approximately $1,632 per fortnight.

7. The husband had the use of the property upon separation and he did not maintain it.  In fact, he damaged the property causing it to lose value.  The front windows were smashed.  The walls and doors in the garage smashed and/or kicked in.  The walls leading upstairs had holes in them and it is the wife’s evidence those holes appear to have been caused by punching and kicking.  The wife deposed in her Affidavit of 6 May 2013 at paragraph 28, that the house and garage would require a significant amount of plastering to repair the damage.  She was financially unable to effect repairs to the damage caused by the husband (prior to the sale of the home) and it was sold in that damaged state.

8. The wife alleges the husband is using drugs and, as a consequence, is no longer in employment.  She has had no contact with him.  The wife said in paragraphs 19 and 20 of her Affidavit of 6 May 2013, the following:-

   “19. I believe that Mr Langley has been using drugs and that that is why he is no longer in employment.  I believe that he may have also be selling drugs to earn an income.  Whilst I do not know if Mr Langley sold or used drugs whilst we were in a relationship I did have suspicions that he was doing so.  I would find foils around the house and caught girls at the house smoking and using heroin.  I also found needles and other drug paraphernalia around the home after we separated.  I took photographs of these items.

   20. Mr Langley would mysteriously have large amounts of cash available to him and say it was from his “investment shares”.  I am not aware of him actually owning any shares and suspect that the money he had in his possession was from the sale of drugs.”

9. Despite the service upon him of these proceedings and the earlier Orders made 29 May 2013, the husband has not participated in the proceedings at all.  They are proceeding on this day undefended as indicated in the notation of 29 May 2013. 

Consideration

1. The property to be apportioned between the parties in these proceedings is comprised of a small asset pool. The wife seeks in her application filed, an adjustment to her of 70 per cent of the monies held in the trust account of her solicitors (on behalf of the parties) which is the net proceeds of sale of the property.  The wife has made a slightly greater contribution to the acquisition of the property in the form of direct financial payments made by her to lending institutions.  Further, the husband has caused damage to the property whilst he was in sole occupation and, in that sense, made a negative contribution to the property.

2. The wife is in poor health. When the Court has looked to those matters as set out in s.90SM of the Family Law Act 1975 (Cth) (‘the Act’), it relies on s.90SM(4)(e) of the Act, in particular, to provide a further adjustment in the wife’s favour it being:-

   “the matters referred to in subsection 90SF(3) so far as they are relevant;”

3. It is not possible for the Court to consider many of those matters which are set out in s.90SF(3) of the Act in respect of the husband because he has failed to place any relevant evidence or evidence at all before the Court. The wife’s evidence is that she has significant health issues and she is unsure as to how long she will be able to work on a full-time basis. She was diagnosed in 2009 with renal failure and currently has 39 per cent use of her kidneys. In 2007, she was diagnosed as having an enlarged heart and has high blood pressure. She takes regular medication on a daily basis and has been told by her practitioners that in the long term, she will need a kidney transplant or transfusions. Her doctors have not yet discussed the need for dialysis with her.

4. The Court is satisfied in the circumstances of this case, that the Orders it makes this day are just and equitable as between the parties and properly take into account the wife’s contributions over and above that of the husband, and her ongoing health needs which are significant. The impact of her poor health upon her capacity to earn income, or income at her current level into the foreseeable future, is considerable and requires significant adjustment to her of the relatively small asset pool.

5. The Court has no evidence before it from the husband and relies on the totality of the evidence as put before the Court by the wife, unchallenged as it is.  The Court will accede to the application of the wife and makes Orders accordingly.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  27 August 2013