CASE WATCH FAMILY LAW – BARNES & BARNES [2015] FCCA 2528

 In Case Watch, Family Law

Alteration of property interests where proceeding is undefended including assessment of contribution and whether a just and equitable order – BARNES & BARNES [2015] FCCA 2528

Peter Pavusa accredited family law specialist is a Brisbane Family Lawyer of Merthyr Law, who practices exclusively in Family and Relationship Law.

Facts:

This was an application for summary judgment by the Applicant Wife aged 53 years who was legally represented.  The Respondent Husband was 65 years, the parties were married for 24 years.  They have five children born in 1986, 1987, 1997, 1989 and 1994.

The Wife’s application was commenced and personally served on the Husband.  On the date of the first court appearance there was no appearance by or on behalf of the Husband.  The Husband was directed to file and serve a Response, Financial Statement and Affidavit within 35 days.  The Husband refused to do so.  The matter was then adjourned for Mention or Undefended Hearing with the matter proceeding on an undefended basis.  Most of the assets were in the Husband’s name.

The Undefended Hearing

His Honour Judge Altobelli determined:

In paragraph 4, if a party to a proceeding is not present at a hearing the Court may proceed with the hearing generally.  The Court did so on this occasion (Rule 13.03C of the Federal Circuit Rules 2001).

In paragraph 6 and 7, His Honour confirmed that the Wife’s application was an application under Section 79 and that Section 79(4) incorporates the provisions contained in Section 75(2).

In paragraph 8 His Honour stated:

In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52, which provided guidance on how s.79 was to be interpreted and implemented.  Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a to being a statutory edict.  The four steps articulated in Hickey at paragraph 39 are:

  • Indentify and value the property, liabilities and financial resources of the parties; and
  • Indentify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
  • Indentify and assess the other facts relevant under s. 79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
  • Consider the effect of the above and resolve what order is just and equitable in all the circumstances.”

In paragraph 9 His Honour stated determined:

The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process.  In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise.  Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held.  It is clearly just and equitable in this case to make an Order.

Regarding the matter proceeding on an undefended basis His Honour in paragraph 9 referred to the Full Court’s decision in Zane & Allan [2008] FamCAFC 115 including the following principles:

  1. The Applicant having a duty to the Court to make full disclosure;
  1. Deal with the Court in good faith;
  1. Establish the case with admissible evidence;
  1. The Court must have regard to all evidence before the Court including evidence filed on behalf of a Respondent who does not appear the final hearing.

In this case the Respondent Husband elected not to file any material.

In paragraph 10, His Honour Judge Altobelli determined that “an important principle derived from Zane & Allan, however, is the recognition that a Court does not have to insist on detailed evidence, make elaborate findings and give detailed reasons in undefended matters, that it must be satisfied the evidence supports its findings and Orders.

In paragraph 11, His Honour noted that the husband retained his right under r.16.05 of the Federal Circuit Court Rules 2001 regarding making application to set aside or vary its judgement under certain circumstances.

The wife presented a balance sheet those of which His Honour accepted as being the “best evidence available”.

In paragraph 13, His Honour determined “… His [the husband]’s decision not to participate in these proceedings inevitably made the wife’s task of maintaining the application more difficult. Her contention as to values was clearly put to the husband, but he declined to respond. In the circumstances, she should not be prejudiced by his inaction. Significantly, the value of the (business omitted) was established by way of a valuation from an appropriate expert. The values of the liabilities and the superannuation are established by way of documents that were tendered in evidenced, which are annexed to the wife’s affidavit.”

His Honour then considered, based on the evidence before the Court, whether the Orders made are just and equitable.  His Honour then determined that based on the length of the marriage in respect of financial and non financial contributions including the wife being the primary care giver to five children, that the contribution of the parties was equal and that there was no basis for an adjustment under s.75(2) of the Family Law Act.

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