Husband Applies for Cost Order and Property Settlement Against Wife

Barkley & Gammon [2021] FCCA 1444 (29 June 2021)

The parties have been in a relationship of approximately 16 years. Upon separation, the father asserted that the children are in his primary care and applied to the court for property settlement in his favor. The respondent, on the other hand, has not engaged with the proceedings. 

Facts:

The parties commenced a relationship in or around 2001, and are the parents of X and Y.  The Respondent has a child (Mr D) from an earlier relationship.  The Applicant estimates that he derives an annual income of approximately $67,000.00 from his business.  The "B Street, Town C” property is at the centre of the current controversy between the parties.  The Applicant continues to live in the B Street, Town C property, with the children, X and Y.  He wishes for him to continue to live in the B Street, Town C property, with the children.  He asserts that he has made significant and various contributions to its improvement and preservation over the years. 

After the parties' separation in September 2017, as alleged by the Applicant, Respondent went to Adelaide ostensibly on a shopping expedition but failed to return.  As such, the Applicant had to assume sole responsibility for the care of not only X and Y, but also Mr D.  The Applicant further deposed that neither he nor the children had had any contact with the Respondent for a period of around 6 months and that he even filed a missing person’s report to the police.  The Respondent was issued substituted service of notice of hearing through email. 

Issue:

Whether or not the Applicant is entitled to finalize his financial relationship with the Respondent. 

Applicable law:

Federal Circuit Court Rules 2001 (Cth) r 7 - provides that service by hand is required for any Application starting a proceedings. 

Federal Circuit Court Rules 2001 (Cth) r 13.03B - provides that the Court has the discretion to enter judgment in default if the respondent has not defended the proceedings with due diligence. 
Family Law Act 1975 (Cth) Pt VIII, ss 90SF, 90SM, 117- provides for the division of property following the breakdown of a marriage relationship.

Family Law Act 1975 ss 44, 90ST - provides that the Court is placed under an obligation to finalise the financial relationship between the parties to a de facto relationship, any application to settle the property of a de facto relationship must be commenced within a period of two years of the end of such relationship.

Analysis:

While the Court cannot compel a Respondent to engage with litigation, it is obliged to give a Respondent the opportunity to put evidence before the Court and, if he or she wishes to do so, contest any evidence relied upon by the Applicant. Still, the applicant is entitled to a just resolution of the case. In the case, the Respondent has been properly notified of the case, has been given an opportunity to file the necessary responding documents, and was given the opportunity to attend a Conciliation Conference, which she does not seem to have utilised fully.

The Court is tasked to ensure a just result between the parties despite the Respondent's failure to participate properly in the proceedings. However, if the Applicant's affidavit material is not inherently unreliable, it shall be accepted by the Court. 

Conclusion:

The Court ordered in full and final settlement of all applications for the settlement of de facto property, that the Respondent do all things necessary and execute all documents required to transfer her entire interest in the "B Street, Town C” property within twenty eight (28) days of the date of this order. The Applicant is ordered to pay the Respondent $129,622.93. The Applicant is to discharge any mortgage or charge secured against the property. Upon the transfer of the former family home from the Respondent to the Applicant the Applicant is ordered to keep the Respondent indemnified in respect of all mortgages and any other outgoings and liabilities in respect of the former family home. The Registrar of the Federal Circuit Court of Australia at Adelaide is hereby appointed to execute all deeds and documents in the name of the defaulting party in the event that either party refuses or neglects to comply with the provisions of these orders.