FAMILY COURT OF AUSTRALIA
| BEST & VIDMA | [2017] FamCA 447 |
| FAMILY LAW – PROPERTY – Just and Equitable – Dispute as to contributions – Where the wife made a significantly greater financial contribution to the asset pool – Where the husband asserts he made financial and non-financial contributions to the wife’s properties – Where there is little objective evidence to support the husband’s assertions – Where the husband asserts the wife used his income to pay household expenses – Where it was appropriate for the wife to do so when the parties were living together – Where the wife handled the husband’s finances – Where the wife received a substantial compensation pay out which she applied to her properties – Where the wife earns significantly more than the husband –Where there are suspicions as to the husband’s capacity to work – Where it is just and equitable to make property adjustment – Where the adjustment should reflect the significantly greater contributions of the wife to the asset pool – Where an adjustment should be made in favour of the husband for section 75(2) factors – Orders made. FAMILY LAW – COSTS – Where application by wife seeking declaration as to binding financial agreement – Where application withdrawn and dismissed – Where appropriate that wife pay husband’s costs. |
| Family Law Act 1975 (Cth)ss 75, 79, 117 |
| Best & Vidma [2015] FamCA 715 Russell & Russell (1999) FLC 92-877 Scott & Danton [2014] FamCAFC 203 Teal & Teal [2010] FamCAFC 120 |
| APPLICANT: | Mr Best |
| RESPONDENT: | Ms Vidma |
| FILE NUMBER: | PAC | 705 | of | 2014 |
| DATE DELIVERED: | 27 June 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 21 and 22 November 2016 and 6, 7, 8 and 9 March 2017 and 8 May 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sansom |
| SOLICITOR FOR THE APPLICANT: | McPhee Kelshaw |
| COUNSEL FOR THE RESPONDENT: | Mr Duane |
| SOLICITOR FOR THE RESPONDENT: | Turner Freeman Lawyers |
Orders
That within 14 days from this date the husband and wife do all things necessary to authorise and direct that monies held in a controlled money account on behalf of the parties be paid out as to the sum of $269,000.00 to the husband and the balance then remaining to the wife.
That the wife pay the husband’s cost of and incidental to these proceedings on a party/party basis in so far as they relate to the issue of the financial agreement signed by the parties in October 2001 with such costs to be as agreed or in default of agreement within one month from this date as assessed.
That any application for costs be by way of written submission filed and served…
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- AGLC
- BEST & VIDMA [2017] FamCA 447
- Case
- [2017] FamCA 447
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether it was just and equitable to make a property adjustment, and if so, how such an adjustment should reflect the parties' respective contributions and other relevant factors under section 75(2) of the *Family Law Act 1975* (Cth). Additionally, the court was required to determine the appropriate costs order, particularly in relation to a withdrawn application by the wife concerning a financial agreement.
Foster J reasoned that while the wife had made significantly greater contributions to the asset pool, an adjustment in favour of the husband was warranted to account for section 75(2) factors. The court found it appropriate for the wife to use the husband's income to pay household expenses during their cohabitation and noted her management of his finances. The court also considered the wife's substantial compensation payment, which was applied to her properties, and expressed suspicions regarding the husband's capacity to work. Regarding costs, the court deemed it appropriate for the wife to bear the husband's costs associated with the withdrawn financial agreement application.
The court ordered that a controlled money account be paid out, with $269,000.00 to the husband and the balance to the wife. The wife was also ordered to pay the husband's costs in relation to the financial agreement issue. Otherwise, all applications were dismissed.
Orders
Orders of the court
1.
That within 14 days from this date the husband and wife do all things necessary to authorise and direct that monies held in a controlled money account on behalf of the parties be paid out as to the sum of $269,000.00 to the husband and the balance then remaining to the wife.
2.
That the wife pay the husband’s cost of and incidental to these proceedings on a party/party basis in so far as they relate to the issue of the financial agreement signed by the parties in October 2001 with such costs to be as agreed or in default of agreement within one month from this date as assessed.
3.
That any application for costs be by way of written submission filed and served by the party seeking such order within 28 days from this date with any submissions in response within a further 14 days with judgment thereafter reserved to chambers.
4.
That otherwise all applications be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The December 2009 separation: In December 2009, after the wife asserts she found a quantity of marijuana in her home the parties separated again and did not reconcile until October 2012. The husband says there were no drugs and the separation was a sham for the purposes of the wife’s motor accident claim and even though he remained at his mother’s he spent most weekends at D Street. Such contention is supported by his mother’s evidence. Yet Police records (Exh “I”) reveal:a)That on 30 July 2010 the husband was stopped by Police at a known drug location. His address was given as that of his mother. He was identified as a known drug user.b)That on 24 March 2011 the husband was at a hotel when stopped and searched by police using a drug detection dog. His address was given again as that of his mother.c)That on 15 October 2011 the husband as a victim was spoken to by police, giving his address as that of his mother. He complained to police: that he had been in a relationship for 12 months and his partner had miscarried about 6 weeks previously, that his partner who was affected by alcohol, alleged he had been sleeping with other partners, that he was called to his partners unit, that he attended and an argument ensued. The Police were called by neighbours. He was spoken to by police at the partners unit then left. The husband in oral evidence perplexingly denied any knowledge of the last incident despite being clearly identified in the police particulars. The wife throughout continued to manage his financial affairs although he had his own ATM card access to his account for some of this period. The wife acknowledges that she was able to draw cheques on his account and did so to pay his bills particularly his suppliers for his business and his taxation obligations. She refutes the suggestion that she used his funds for her purposes save where conceded by her above. In January 2012 the husband was paid $6,550.00 by way of long service accumulation from his previous employer. The funds were paid to his Westpac account. These funds were promptly withdrawn by three cheques within a matter of days. The husband adduces no evidence as to the payees of cheques drawn, simply asserting that the wife used the funds. Again in August 2012 the husband received a tax refund and asserts that the wife then drew $6,600.00 by cheque the next day. He adduces no evidence of the payee of the cheque. In June 2012 the wife received a net lump sum compensation payment of $351,166.00 in relation to injuries received by her in the motor vehicle accident in February 2005. The wife applied the compensation funds received by her as follows:a)in discharge of the $92,460.00 mortgage secured over her Suburb C property;b)in July 2012 a $105,550.00 reduction of the mortgage secured over the Suburb B property;c)in July 2012 a $105,550.00 reduction of the mortgage secured over the Suburb G property;d)a payment on 13 December 2012 of $120,000.00 into her self-managed superannuation fund with this deposit comprising some of the funds from the sale of the Suburb G property.