Bilton & Pinemore

Case [2023] FedCFamC1F 657

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bilton & Pinemore [2023] FedCFamC1F 657

File number(s): BRC 18022 of 2020
Judgment of: BAUMANN J
Date of judgment: 11 August 2023
Catchwords: FAMILY LAW – PROPERTY – Two pool approach – Where the use of funds for legal expenses is added back –Unexplained use of funds regarded by the Court as a premature disposition by the husband and added back – Where the receipt by the husband of a number of payments from the Department of Veterans’ Affairs is regarded as a contribution made by the husband –– Where the wife is found to have made an indirect contribution to the husband’s disability benefit entitlement – Where the husband has a number of pre-existing injuries and mental health challenges where he cannot work into the future – final property adjustment orders made that achieve justice and equity between the parties  
Legislation:

Family Law Act 1975 (Cth) ss 75, 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 12.7

Cases cited:

Aleksovski & Aleksovski (1996) FLC 92-705

NHC & RCH (2004) FLC 93-204

C & C (2005) FLC 93-220

De Angelis & De Angelis (2003) FLC 93-133

Falcken & Weule [2019] FamCAFC 140

Hickey & Hickey (2003) FLC 93-143

Kennon & Kennon (1997) FLC 92-757

Stanford & Stanford (2012) 247 CLR 108

Townsend & Townsend (1994) 18 Fam LR 505

White & Tulloch v White (1995) FLC 92-640

Yeates (as Executor for Yeates) & Yeates [2013] FCWA 117

Division: Division 1 First Instance
Number of paragraphs: 53
Date of hearing: 17 & 18 July 2023
Place: Brisbane
Solicitor for the Applicant: Mr P Bogatec, Wadlow Solicitors
Counsel for the Respondent: Ms K Carmody
Solicitor for the Respondent: WGC Lawyers
Counsel for the Independent Children’s Lawyer: Mr M Pollock
Solicitor for the Independent Children’s Lawyer: Berck Solicitors

ORDERS

BRC 18022 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BILTON

Applicant
AND:

MS PINEMORE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

11 AUGUST 2023

THE COURT ORDERS:

Property adjustment

1.That the husband and wife do all acts and things and sign all documents as may be required to cause all of the funds held in the joint B Bank account number …74 to be paid to the wife.

2.That within sixty (60) days of the date of these Orders, the husband pay to the wife the sum of $156,000.

3.That upon payment of the amount referred to in the preceding paragraph:

(a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right title and interest in the real property situated at C Street, Suburb D, more particularly described as Lot … on SP … certificate of title reference … (“the Suburb D property”); and

(b)the husband indemnify the wife against all payment and cause her to be discharged…

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AGLC
Bilton & Pinemore [2023] FedCFamC1F 657
Case
[2023] FedCFamC1F 657
Decision Date

CaseChat Overview and Summary

The matter of Bilton & Pinemore was heard in the Family Court of Australia. The case involved a dispute between the parties regarding the division of their assets and financial interests following the end of their relationship. The wife argued that the husband was financially and personally coercive and controlling, and sought an alteration of their existing legal and equitable interests.

The court had to determine whether it was just and equitable to make orders that would alter the existing legal and equitable interests of the parties. This required the court to consider the contributions made by each party to the relationship, their respective incomes and benefits, and the circumstances surrounding the relationship.

The court found that the wife had made significant contributions to the relationship, both as a homemaker and parent and in her career as a self-employed consultant and professional. The court also found that the husband's income and benefits significantly exceeded that of the wife, and that financial issues were often the subject of conflict between the parties. The court concluded that it was just and equitable to make orders that would alter the existing legal and equitable interests of the parties.

The court ordered that the husband's interest in the family home be transferred to the wife, and that the wife be awarded spousal maintenance. The court also ordered that the parties' superannuation interests be divided equally.

Orders

Orders of the court

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Background

Background to the litigation

Both parties acknowledge, with the end of the relationship and the cessation of the understandings developed during the course of that relationship relating to the hopes of a financial future together, that it is so just and equitable to make orders that alter the existing legal and equitable interests (s 79(2) of the Act and Stanford & Stanford 247 CLR 108).CONTEXTUAL BACKGROUND Statements of fact which follow should be construed as findings of fact. In that regard, the parties at the trial relied upon their single trial affidavit, and their most recent Financial Statement. Some documents were tendered during the cross-examination, which was concise and contained within a few hours in total. No issues of credit seriously arose – although the husband did not fully accept all the wife’s evidence about the difficulties she felt and said she experienced, arising from the relationship and the frequent periods of separation arising from both of the husband’s postings and deployment as a member of the Australian Defence Force, and also his asserted behaviour when he would return home. In circumstances where, at the onset of the hearing, Ms Carmody confirmed for the record that the wife was not running a Kennon & Kennon (1997) FLC 92-757 type case, the cross‑examination about marital conduct by both Counsel was significantly truncated. When the parties commenced cohabitation in early 2001, the husband was approximately 27 years of age and the wife was approximately 21 years of age. The husband had joined the Australian Defence Force in 1993 at the age of 19. The wife was completing some tertiary studies. Early in the relationship, for the husband’s career advancement, the couple relocated to Melbourne and then City J before marrying in 2004. The couple were blessed with the birth of three sons:(a)X in 2005;(b)Y in 2008; and (c)Z in 2015. It is not necessary to detail the significant number of home movements (the husband concedes about thirteen times) and deployments overseas by the husband which usually, but with the exception of some time in the United States of America as a family, occurred during the relationship. I find that at least the husband’s absences meant the wife was required to meet the day to day responsibilities of homemaker and parent often as a single parent. This is not meant to be a criticism of the husband who was serving his country – but a mere statement of fact. Often when the husband was away for a few weeks, the wife took the opportunity to return to her home country (as an Indigenous Australian) of K Region, where she had family support. With these circumstances that surrounded the wife’s living arrangements, I find it is impressive that she was able to advance her career, – both as a self-employed consultant through her company F Pty Ltd and as a professional within the L Institute and other entities. I am satisfied that financial issues were often the subject of conflict between the parties – such that it was the wife’s sense that the husband was both financially and personally coercive and controlling. As I will reiterate, although the wife continued admirably to earn a modest income, the husband’s income (and various benefits he acquired as a member of the Australian Defence Force (“ADF”)) significantly exceeded that of the wife.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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