FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carros & Carros (No 2) [2023] FedCFamC2F 564
File number(s): MLC 3767 of 2021 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 17 May 2023 Catchwords: FAMILY LAW – PROPERTY – assessment of contributions – relationship of 21 years – no children – initial contributions – post-separation contributions – alleged non-disclosure by husband – whether erroneous record-keeping by husband impacts business valuation – assessment of relevant section 75(2) matters – wife’s income earning capacity limited by injury – disparity in age of parties Legislation: Evidence Act 1995 (Cth), ss 50, 140
Family Law Act 1975 (Cth), ss 75, 79, 117B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.01
Cases cited: Babett & Falconer (2015) FLC 98–067; [2015] FamCAFC 124
Barnell & Barnell (2020) FLC 93–961; [2020] FamCAFC 102
Benson & Drury FLC 93–998; [2020] FamFAFC 303
In the marriage of C & C (2005) FLC 93–220; [2005] FamCA 429
Demeny & Ogden (2021) 371 FLR 444; [2021] FedCFamC1A 21
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Hurst & Hurst (2018) FLC 93–851; [2018] FamCAFC 146
Jabour & Jabour (2019) FLC 93–898; [2019] FamFAFC 78
K & K (2003) FLC 93–135; [2002] FamCA 1150
Mayhew & Fairweather (2022) 64 Fam LR 633; [2022] FedCFamC1A 53
Morrison v Morrison (1995) FLC 92–573; [1994] FamCA 153
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Perrin & Perrin (No 2) [2018] FamCAFC 122
Pierce v Pierce (1998) FLC 92–844; [1998] FamCA 74
Sinclair and Sinclair [2000] FamCA 262
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Wallis & Manning (2017) FLC 93–759; [2017] FamCAFC 14
Weir v Weir (1993) FLC 92–338; [1992] FamCA 69
Williams & Williams [2007] FamCA 313
Division: Division 2 Family Law Number of paragraphs: 167 Date of last submission/s: 17 April 2023 Date of hearing: 9 & 10 March 2023 Place: Melbourne Counsel for the Applicant: Mr Arnold Solicitor for the Applicant: Lampe Family Lawyers Counsel for the Respondent: Mr Moutasallem Solicitor for the Respondent: Greg Murphy Legal ORDERS
MLC 3767 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CARROS
Applicant
AND: MS CARROS
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
17 MAY 2023
THE COURT ORDERS THAT:
Real property
1.Within 60 days from the date of these orders (“the date”) and contemporaneously:
(a)The respondent wife (“the wife”) pay to the applicant husband (“the husband”) the sum of $984,116 (“the payment”).
(b)The wife do all acts and things necessary to discharge registered mortgage … to G Ltd (“the mortgage”) registered on the title of the real property situate at and known as H Street, Suburb J in the state of Victoria more particularly described in certificate of title reference Volume … folio … (“Suburb J”), at her expense; and
(c)The husband do all acts and things necessary and sign all documents required to the…
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- Carros & Carros (No 2) [2023] FedCFamC2F 564
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- [2023] FedCFamC2F 564
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CaseChat Overview and Summary
The court meticulously evaluated the contributions of both parties, taking into account the duration of the relationship, the initial contributions made by each, and the post-separation financial contributions. It considered the wife’s limited income-earning capacity, which was significantly impacted by an injury she sustained. Furthermore, the court assessed the effect of the husband's alleged non-disclosure of financial information and the impact of his record-keeping errors on the business valuation. In making its decision, the court applied the relevant statutory provisions and principles governing the division of property in the context of a long-term relationship without children.
Ultimately, the court ordered the sale of a property located in Suburb J, with the proceeds to be applied to meet sale costs and expenses, discharge the mortgage, and then allocated between the parties according to a specific formula. The wife was granted the sole right to occupy the property pending the sale and was responsible for all related costs. The husband retained his interest in the business, with an obligation to indemnify the wife for any related debts or liabilities. Additionally, the court ordered the sale of certain chattels, with the net proceeds divided between the parties in a specified ratio. Other property and superannuation were divided equally, except where otherwise specified. The court also addressed procedural matters, including the execution of documents in default and the allocation of costs.
The final orders mandated the husband to make a payment to the wife, the discharge of a mortgage, and the transfer of property interests. Should these actions not be completed within the stipulated timeframe, the court ordered the sale of the property. The court also directed the sale of specified chattels and the division of their proceeds. The husband was to retain his business interest while indemnifying the wife, and other property and superannuation were to be divided between the parties. The court’s decision aimed to finally determine the financial relationships between the parties, thereby avoiding further proceedings.
Orders
Orders of the court
MLC 3767 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR CARROS
Applicant
AND:
MS CARROS
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
17 MAY 2023
THE COURT ORDERS THAT:
Real property
1. Within 60 days from the date of these orders (“the date”) and contemporaneously:
(a) The respondent wife (“the wife”) pay to the applicant husband (“the husband”) the sum of $984,116 (“the payment”).
(b) The wife do all acts and things necessary to discharge registered mortgage … to G Ltd (“the mortgage”) registered on the title of the real property situate at and known as H Street, Suburb J in the state of Victoria more particularly described in certificate of title reference Volume … folio … (“Suburb J”), at her expense; and
(c) The husband do all acts and things necessary and sign all documents required to the transfer to the wife all his right title and interest in Suburb J, at the expense of the wife.
2. Upon the transfer of Suburb J to the wife, the wife be responsible for and indemnify the husband in respect of all apportionable rates, taxes and outgoings relating to Suburb J of whatsoever nature and kind.
3. If by the date the payment is not made or the mortgage is not discharged, then the parties do all acts and things and sign all documents required to effect the sale of Suburb J (“the sale”) in the following manner:
(a) Within 10 business days from the date, the parties engage an agent to conduct the sale (“the agent”) and a solicitor to conduct the conveyance of the sale (“the conveyancer”) and for the purpose of this order:
(i) Within three business days of the date, the husband nominate in writing to the wife, three real estate agents and three solicitors from which the agent and the conveyancer are to be selected;
(ii) Within two business days of receiving the husband’s nominations pursuant to order 3(a)(i), the wife select an agent and solicitor from those nominated by the husband and failing the wife’s election the husband select the agent and the conveyancer; and
(iii) Failing the husband’s nomination pursuant to order 3(a)(i), the wife select the agent and the conveyancer.
(b) Suburb J be sold at a public auction to be conducted no earlier than 30 days from the date and no later than 90 days from the date; and
(c) The conduct of the auction and terms and conditions of sale be agreed by the parties with regard to the advice of the agent.
4. The parties have liberty to apply in respect of the terms and conditions and execution of the sale pursuant to order 3.
5. Upon settlement of the sale of Suburb J, the proceeds of sale be applied:
(a) First, to meet all costs, commissions and expenses of the sale including the agent’s fees, advertising and conveyancing costs incurred by the parties with the conveyancer but excluding their own individual legal costs;
(b) Second, to discharge the mortgage;
(c) Third, from the balance then remaining, to pay an amount to the husband being the dollar equivalent of “X” in the following equation:
X = [44% of (A + W + H)] – [H + S]
Where:
“A” is the net proceeds remaining from the sale of Suburb J after the payments made pursuant to each of orders 5(a) and 5(b)
“W” is the value of property retained by the wife pursuant to these orders fixed in the sum of $44,000
“H” is the value of property retained by the husband pursuant to these orders fixed in the sum of $34,610
“S” is an adjustment in lieu of a super split fixed in the sum of $63,062
(d) Finally, the balance then remaining to the husband.
6. Pending settlement of the sale:
(a) The wife have the sole right to occupy Suburb J;
(b) The wife pay all instalments pursuant to the mortgage (principal and interest), and all rates, taxes and outgoings with respect to Suburb J as and when they fall due;
(c) The wife maintain Suburb J at her sole expense;
(d) Neither party encumber or further encumber Suburb J, including by drawing down against the mortgage, without the consent in writing of the other; and
(e) The parties hold their respective interests in Suburb J upon trust pursuant to these orders.
The business
7. The husband retain his interest in the business B Company (“the business”) and indemnify the wife in respect of all debts and liabilities arising from the operation of the business.
Chattels
8. Within 30 days from the date of these orders (“the chattel sale date”) the parties do all such acts and things and sign all documents as may be required for the wife to sell the following chattels (“the agreed chattels”) in consultation with the husband, for a price to be agreed by the parties, to the listed individuals:
(a) Equipment to Mr K;
(b) Equipment to Mr L;
(c) Equipment to Mr L;
(d) Motor Vehicle 1 to Mr L;
(e) Motor Vehicle 2 to Mr L;
(f) Motor Vehicle 3 to Mr L;
(g) Motor Vehicle 4 to Mr L;
(h) Equipment to Mr L;
(i) Equipment to Mr L;
(j) Equipment to Mr L; and
(k) Equipment to Mr L.
9. Should any of the items identified in order 8 fail to sell to the named individuals by the chattel sale date, the husband do all acts and things and sign all documents required to list and sell the items online, notifying the wife in writing of each item listed for sale and the platform on which it is listed.
10. The net proceeds from the sale of each of the agreed chattels be divided between the parties, 44% to the husband and 56% to the wife.
11. The wife otherwise retain the furniture, personal possessions and like chattels in the Suburb J property and the husband otherwise retain the furniture, personal possessions and like chattels in his rental property.
Other property and superannuation
12. Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a) Each party be solely entitled, to the exclusion of the other, to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b) Monies standing to the credit of the parties in any joint bank account are to be divided equally and:
(i) Each of the husband and the wife be restrained from drawing against joint bank accounts pending compliance with this order; and
(ii) Each of the husband and the wife do all such acts and things and sign all documents required to close any joint bank account, forthwith upon the request of the other;
(c) Insurance policies remain the sole property of the owner named thereon;
(d) Each party be solely liable for and indemnify the other against any liability in that party’s name or encumbering any item of property to which that party is entitled pursuant to these orders; and
(e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Execution of documents in default
13. In the event either of the husband or the wife refuses to or neglects to sign a deed or instrument in compliance with these orders, a Registrar of this Court and/or in respect of electronic real estate transactions, the conveyancer engaged pursuant to these orders (subject to the consent of the conveyancer), be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) (“the Act”) to execute all deeds and/or instruments in the name of the husband or the wife as required and to do all acts and things necessary to give validity to the operation to the deed, instrument or document.
Costs
14. The husband pay the wife’s costs of the mention hearing on 17 April 2023 fixed in the amount of $880, such sum to be deducted from the payment or in the event of default in the payment by the date, from the husband’s share of the proceeds from the sale of Suburb J before payment to the husband.
Procedural
15. All extant applications be dismissed.
AND THE COURT NOTES THAT:
A. Pursuant to section 81 of the Act, these orders are intended to finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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
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