ALLEN & ALLEN

[2016] FCCA 163

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLEN & ALLEN [2016] FCCA 163

Catchwords:
FAMILY LAW – PROPERTY – Interim Orders – valuation – estate in remainder – where property acquired by wife after separation – where husband made no contribution to the acquisition of the asset – financial resource – asset to be considered under Family Law Act 1975 (Cth) s.75(2).

EVIDENCE – Evidence of discussions at a conciliation conference included in an affidavit – evidence of discussions at conciliation conference inadmissible.

Legislation:

Evidence Act 1995 (Cth), s.131

Family Law Act 1975 (Cth), ss. 75, 79

Cases cited:
Coroneos & Coroneos [2011] FamCA 12
Jarrott & Jarrott (No. 2) [2012] FamCAFC 72

Applicant: MR ALLEN

Respondent: MS ALLEN

File Number: SYC 709 of 2015

Judgment of: Judge Scarlett

Hearing date: 1 February 2016

Date of Last Submission: 1 February 2016

Delivered at: Sydney

Delivered on: 3 February 2016

REPRESENTATION

Counsel for the Applicant: Mr Schonell

Solicitors for the Applicant: LCI Legal

Counsel for the Respondent: Ms Murphy

Solicitors for the Respondent: John Spence & Associates

ORDERS

1. The wife’s father and mother MR F and MS O are joined as Second Respondents.

2. Within one (1) month of the date of this Order the parties are to do all such acts and things necessary to obtain a valuation of the wife’s estate in remainder as tenant in common in equal shares with MS N of Property G in the Parish of (omitted) being the whole of the land in Folio Identifier (omitted) situate at and known as Property G in the State of New South Wales.

3. The parties are to do all such acts and things and sign all such documents as shall be necessary to instruct (omitted) Pty Ltd to prepare the valuation referred to in the immediately preceding Order and pay the costs of such valuation in equal shares within fourteen (14) days of the date of this Order.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 709 of 2015

MR ALLEN

Applicant

And

MS ALLEN

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application by the husband, who is the Respondent to the substantive Application, for orders providing that the wife, the substantive Applicant, do all that is necessary to arrange for a valuation of a property at Property G by a valuation company known as (omitted) Pty Ltd. He claims, through an affidavit sworn by his solicitor (omitted) on 22 December 2015, that the wife will not consent to the property being valued for the purpose of the property proceedings.

2. The wife opposes the Application and seeks that it should be dismissed. She asserts that:

   a)the property is owned and occupied by her elderly parents, who are in poor health;

   b)she only has a remainder interest in the property; 

   c)she acquired her interest in the property after the parties separated; and

   d)the husband made no contribution to the acquisition of the property.

Evidence and Submissions

1. The husband relies on the following:

   a)the affidavit of (omitted) sworn 22 December 2015; and

   b)a photocopy of a Title Search carried out on 29 January 2016 and admitted into evidence without objection.

2. The Title Search shows Mr F and Ms O (the wife’s father and mother) as joint tenants of a life estate in the property at 66 Property G and Ms Allen and Ms N (the wife and her sister) as tenants in common in equal shares of an estate in remainder.

3. The wife relied on her affidavit affirmed on 28 January 2016. Her counsel, Ms Murphy, referred the Court to the decisions of Fowler J in Coroneos & Coroneos[1] and the Full Court of the Family Court in Jarrott & Jarrott (No.2)[2] in support of her argument that the property did not need to be valued as the husband would have no claim on it.  

   [1] [2011] FamCA 12

   [2] [2012] FamCAFC 72

Conclusions

1. In my view it is evident that there needs to be a valuation of the wife’s remainder interest in the Property G property. The decision of Fowler J in Coroneos makes that quite clear at paragraphs [41]-[44]. With respect, I propose to follow his Honour’s approach. As his Honour held at [50]:

   50. In determining the entitlement of the husband to such estate it is clear that he made no direct contribution to this estate in remainder and that it was in fact a gift at the hands of the intervener and as such the whole of the estate was acquired by contribution made on behalf of the wife. In assessing a just and equitable distribution of the property of the parties or either of them I will take those matters into account but I cannot ignore the existence of the estate for the purpose of considerations under the provisions of section 75(2).[3]

   [3] Coroneos & Coroneos [2011] FamCA 12 at [50]

2. I am satisfied that the wife’s remainder interest in the Property G property is a financial resource within the meaning of s.75(2)(b) of the Family Law Act 1975 (Cth) and should be taken into account when considering the matters under s.75(2). Accordingly, there needs to be a valuation of that interest.

3. The Applicant seeks an order that the parties obtain “a valuation of the property” but this is clearly incorrect. As I have already stated, what needs to be valued is the wife’s interest in remainder in the property, subject to the life tenancy of her parents. The wife holds her remainder interest in equal shares as a tenant in common with her sister.

4. It is the remainder interest that is to be valued.

5. Counsel for the wife raised the issue that the wife cannot give her consent to the valuation being carried out, as her parents are life tenants and live in the house. She submitted that the wife’s parents should therefore be joined as Respondents to the proceedings. If the parents will not otherwise consent to a valuer inspecting the property for the purpose of carrying out the necessary valuation, then there would appear to be no alternative but to join the parents as parties.

6. I note with concern that the wife in her affidavit of 28 January 2016 at paragraphs [16], [18] and [20] refers to settlement discussions, including direct quotes from discussions in the Conciliation Conference before a Registrar. This material should not have been included in the affidavit as it is clearly inadmissible under s.131 of the Evidence Act 1995 (Cth).

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 3 February 2016