CARSON & WALTERS - [2017] FamCA 330

FAMILY COURT OF AUSTRALIA

CARSON & WALTERS

[2017] FamCA 330

FAMILY LAW – PROPERTY – DE FACTO RELATIONSHIP – where the parties were in a de facto relationship for the purposes of Part VIIIAB of the Family Law Act 1975 (Cth) (‘the Act’) – where the parties seek property settlement orders pursuant to s 90SM of the Act – where the de facto husband made significant financial contributions during the relationship – where the de facto wife was primarily responsible for caring for parties’ three children – where the parties agree that contributions during the relationship ought to be treated as equal – where, post-separation, the de facto husband earnt significant income in his profession and where he received significant money when he departed one international professional firm and became a partner in another international professional firm – whether it would be just and equitable to make adjustments to the parties’ current legal and equitable interests – where it is just and equitable to make an adjustment – consideration of what adjustment ought be made – where the financial contributions post-separation favour the de facto husband – orders made that the property pool be distributed in the proportion 65:35 per cent in favour of the de facto wife – delay in sale of real property and permission for one or other party to bid at auction – delay in payment of capital.

FAMILY LAW – CHILD SUPPORT – application by de facto wife for a departure from administrative assessment of child support to provide that the de facto husband pay child support for each of the parties’ three children – Order made that the de facto husband pay child support at the rate of $3,400 per month (annually indexed to the Child Support Inflation Factor and making a combined total of $10,200 per month) plus other expenses including private school fees.

FAMILY LAW – SPOUSAL MAINTENANCE – Application for spousal maintenance by de facto wife – Application granted in circumstances where de facto wife has established threshold test in establishing reasonable needs and where de facto husband has the financial capacity to meet the de facto wife’s reasonable needs – order made.

Family Law Act 1975 (Cth)

Child Support Assessment Act (1989) (Cth) s 116

Norton & Locke [2013] FamCAFC 202
Gollings & Scott (2007) FLC 93-319
Harris & Ellis [2011] FamCAFC 90
Bevan & Bevan (1995) FLC 92-600

APPLICANT:

Ms Carson

RESPONDENT:

Mr Walters

FILE NUMBER:

SYC

2016

DATE DELIVERED:

18 May 2017

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

23, 24 & 25 January 2017 – final written submissions dated 16 February 2017.

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dickson QC

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Family Lawyers

Orders

IT IS DECLARED

A de facto relationship within the meaning provided in the Family Law Act 1975 (Cth) (‘the Act’) existed between Mr Walters (‘the de…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CARSON & WALTERS

Details

AGLC: CARSON & WALTERS [2017] FamCA 330
Case: [2017] FamCA 330
Decision Date: 18 May 2017

CaseChat Overview and Summary

In the matter of *Carson & Walters*, Benjamin J of the Family Court of Australia considered applications for property settlement, spousal maintenance, and child support arising from the dissolution of a de facto relationship. The parties, Ms Carson (the de facto wife) and Mr Walters (the de facto husband), had been in a de facto relationship from December 1999 until their separation on 1 February 2014. While the parties agreed that their contributions during the relationship should be treated as equal, the de facto husband's significant post-separation earnings and financial gains from changing professional firms, contrasted with the de facto wife's primary responsibility for the parties' three children, formed the crux of the dispute.

The court was required to determine whether it would be just and equitable to make adjustments to the parties' current legal and equitable interests in their property pool. Further, the court had to consider the de facto wife's application for spousal maintenance, assessing her reasonable needs against the de facto husband's financial capacity. Finally, the court was asked to consider an application by the de facto wife to depart from the administrative assessment of child support, seeking an order for the de facto husband to pay a higher amount for the three children.

Benjamin J found that it was just and equitable to make an adjustment to the property pool, acknowledging the de facto husband's significant financial contributions post-separation. The court reasoned that while contributions during the relationship were equal, the financial disparity that arose after separation warranted a redistribution. In relation to spousal maintenance, the court granted the application, finding that the de facto wife had established her reasonable needs and the de facto husband had the capacity to meet them. The court also varied the child support assessment, ordering the de facto husband to pay a substantial monthly sum for the three children, in addition to specific expenses such as private school fees.

The court ordered a property pool distribution of 65% in favour of the de facto wife and 35% in favour of the de facto husband. Specific orders were made regarding the sale of a property, the division of proceeds, the transfer of frequent flyer points, the ownership of artwork, and the return of personal effects. The de facto husband was ordered to pay $988,681 to the de facto wife, to be paid contemporaneously with the settlement of the sale of the L property. The de facto husband was also ordered to pay $923 per month in spousal maintenance until the sale of the L property, and $1,174 per month thereafter until 31 December 2025. Child support was ordered at $3,400 per month per child, totalling $10,200 per month, with annual indexation and reimbursement for specified educational and medical expenses.

Orders

Orders of the court

IT IS DECLARED

A de facto relationship within the meaning provided in the Family Law Act 1975 (Cth) (‘the Act’) existed between Mr Walters (‘the de facto husband’) and Ms Carson (‘the de facto wife’) from about December 1999 until they separated on 1 February 2014.

IT IS ORDERED

The de facto husband shall pay to the de facto wife the sum of $988,681 (‘the payment’); such payment to be made contemporaneously with settlement of the sale of A Street, Suburb L (‘the L property’) and, if available, from the de facto husband’s share of the proceeds of sale of the L property.

The de facto wife and de facto husband do all things and sign all documents necessary to place the L property on the market for sale by auction, with such auction to occur on a date in February 2018 to be agreed by the parties or in the absence of agreement determined by the selling agent and subject to the following:-

a. Both the de facto wife and the de facto husband shall each be permitted to bid at the auction of the L property and if either the de facto wife or the de facto husband acquire the L property on such sale the acquisition is to be treated as being made pursuant to these orders;

b. Pending sale of the L property the de facto wife shall have sole right of occupation and enjoyment of the L property and the de facto husband shall not enter upon the property without the consent of the de facto wife;

c. The de facto wife shall cooperate in every reasonable way with the listing agent in order to present the L property for sale including, but not limited to, the following and without limiting the generality of the following:-

i. making a key available to the listing agent to access all areas of the L property;

ii. allowing and permitting access to all areas of the L property by all photographers and personnel involved in marketing the L property for sale, at all reasonable times as may be requested by the listing agent on behalf of such person(s);

iii. allowing and permitting inspections of all areas of the L property by prospective purchasers in the company of the listing agent, and the listing agent, at all reasonable times as requested by the listing agent;

iv. ensuring that the L property and its surrounds are presented in a neat and tidy condition at the time of inspection by prospective purchasers and the listing agent; and

v. doing nothing to hinder or prevent a sale being negotiated and effected.

d. The repayments on the mortgage over the L property shall continue to be met from funds standing in the Joint ANZ Bank Account (Account No …82) (‘the offset account’);

e. The solicitor acting on the sale shall be the person, partnership or incorporated legal practice agreed by the parties or, in the event that there is no agreement, such person as is nominated by the President of the Law Society of NSW at the request of either party;

f. The L property shall be listed with a real estate agent/auctioneer agreed by the parties and in the event that there is no agreement, then such agent/auctioneer as is nominated by the President of the Real Estate Institute of NSW at the request of either party;

g. The reserve price on the auction and any following auctions of the L property shall be as determined by agreement of the parties and if they are unable to agree then it shall be at the value ascribed to it by Mr C the single expert real-estate valuer in these proceedings, and if the property does not sell such lesser price as agreed by the parties and in the absence of agreement then as recommended by the said single expert at the request of either party; and

h. Liberty be reserved to the parties to apply to the court on 7 days notice in the event of a dispute as to the terms and conditions of the sale.

Upon settlement of the sale of the L property, the proceeds of that sale be consolidated with the offset account and be applied:-

a. First; to pay all legal costs and disbursements on the sale, adjustments of rates etc., commissions and expenses of the sale, including any agreed costs of preparing the property for sale and costs (if any) associated with the appointment of a solicitor, real estate agent/auctioneer or the determination of reserve price by the said single expert;

b. Second; to discharge the mortgage secured over the L property;

c. Third; the balance be divided as to 65 per cent to the de facto wife and 35 per cent to the de facto husband;

d. As to the 35 per cent payable to the to the de facto husband, the wife shall be entitled to be paid from that sum all or as much as is available to satisfy the payment ($988,681) due her by the de facto husband pursuant to Order 2 above; and

e. In the event the payment is not made or wholly made by the de facto husband at the date of completion of the sale of the L property, then interest shall commence to run on so much of the payment as is then outstanding at the rate prescribed by the Family Law Rules 2004 (Cth).

Within twenty one (21) days of the date of this order the de facto husband shall transfer 200,000 Qantas Frequent Flyer points from his frequent flyer account to each the children’s respective Qantas Frequent Flyer accounts, being a total of 600,000 points. The de facto wife alone is permitted to operate the children’s Qantas Frequent Flyer accounts and redeem those frequent flyer points on the respective children’s flights.

As against the de facto husband, the de facto wife is the sole owner of the following artwork:-

a. … dot painting;

b. … dot painting; and

c. … Navigational Chart.

As against the de facto wife, the de facto husband is the sole owner of the following artwork:-

a. – h. [details of artwork omitted for publication purposes]

Within fourteen (14) days from the date of this Order the de facto wife is to provide two lists of the following artwork to the de facto husband for him to determine which list of items he wishes to retain, the de facto husband shall notify the de facto wife of his election within a further period of fourteen (14) days and the de facto wife is to make available to the de facto husband such artwork for collection in addition to the artwork set out in the preceding order within one month:-

a. – o. [details of artwork omitted for publication purposes]

and as against each other the de facto husband will be the sole owner of those listed artworks and the de facto wife shall be the sole owner of the artworks remaining in her possession.

The de facto wife shall within fourteen (14) days from the date of this Order cause the Impressionist print to be made available for collection by the de facto husband at his own expense, if it has not already been collected.

10.

The de facto wife shall within fourteen (14) days from the date of this Order cause the de facto husband’s clothing, prizes, trophies, awards, degrees and birth certificate to be made available for collection by the de facto husband at his own expense.

11.

The de facto wife shall within fourteen (14) days from the date of this Order cause the de facto husband’s photographic prints prepared from photographs taken by the de facto husband, and all photographs, books and effects which he owned at the time he and the de facto wife commenced living together to be made available for collection by the de facto husband at his own expense.

12.

The parties shall have liberty to apply to the Court in the event the parties disagree in respect of the return of specific items of personality; such leave to be available for a period of three (3) months from the date of this Order.

13.

Within seven (7) days of receipt of each the repayments of each capital due to him in both May 2017 and May 2018 from the US firm partnership of the which the de facto husband was a partner:-

a. the de facto husband shall provide to the de facto wife an account of the precise sum which he receives in both United States dollars and Australian dollars together with copies of all documents available to him showing the payments and the calculation of such payments; and

b. The de facto husband shall pay to the de facto wife in Australian dollars the sum equivalent to 65 per cent of each such payment.

14.

The de facto husband shall be responsible to pay in their entirety the fees of Mr D, Mr C and Ms E; and the de facto wife shall not be required to further contribute to such fees. This Order shall dispense with the compliance of any Rule under the Family Law Rules 2004 (Cth) as may otherwise conflict with the intent of this Order.

15.

As against the de facto husband and save as is otherwise provided in these orders, the de facto wife shall retain all interest in and entitlement to all property now in her possession or control, including but not limited to:-

a. All funds standing in bank accounts in her sole name;

b. Shares held in her sole name;

c. Motor vehicles registered in her sole name;

d. Furniture and contents in her possession or control;

e. Other personal property in her possession or control including the photographic equipment referred to in annexures to the de facto husband’s trial affidavit (Exhibit 7 - page 132, E1 to E8);

f. Interests in life insurance policies in her sole name;

g. Superannuation funds standing in her sole name; and

h. Qantas Frequent Flyer points standing in her name.

16.

As against the de facto wife and save as is otherwise provided in these orders, the de facto husband shall retain all interest in and entitlement to all property now in his possession or control, including but not limited to:-

a. the N property owned by him;

b. the [English professional firm] LLP Capital Contribution;

c. the de facto husband's bank funds;

d. the Telstra Corporation Ltd shares;

e. the VW motor vehicle;

f. the Nissan motor vehicle;

g. all furniture and contents, including artworks, already in the possession of the de facto husband;

h. all rental bond monies repayable to the de facto husband;

i. the remaining Qantas Frequent Flyer points standing in his name, after his compliance with order 5;

j. all monies standing to the credit of the de facto husband in the Barkus Doolan Trust Account as at the date of these Orders; and

k. the de facto husband's superannuation entitlements.

Maintenance

17.

The de facto husband shall pay the following by way of maintenance for and to the de facto wife:-

a. the sum of $923 per month on the first day of each calendar month (monthly in advance) to a bank account as she shall direct, until the last day of the month in which the sale of the L property is completed; and

b. the sum of $1,174 per month from the first day of each calendar month following the completion of the sale of the L property until 31 December 2025; such payments are to be monthly in advance to a bank account as the de facto wife shall from time to time direct.

Child Support

18.

Pursuant to s 117 Child Support (Assessment) Act 1989 (Cth) (‘the Assessment Act’), the current child support assessment between these parties is varied to provide that de facto husband shall pay to the de facto wife by way of monthly periodic child support of $3,400 for each of P (born … 2006), F (born … 2008) and R (born … 2013) (‘the children’) making a total of $10,200 per month, and:-

a. This rate of child support commences as and from the date of this order;

b. This child support is to be paid by a pro rata payment in the first month, then the full amount to be paid in advance on the first day of each calendar month on a monthly basis, until each of the children turns 18 or completes secondary schooling in the year the child attains the age of 18 years, whichever is the later.

c. This periodic child support shall be varied on 1 July in each year (commencing 1 July 2018) by increasing the amount payable by the “Child Support Inflation Factor” calculated with reference to the annualised MTAWE figure, as used by the Child Support Agency (http://guides.dss.gov.au/child-support-guide/2/4/2).

19.

Pursuant to s 124 of the Assessment Act, the de facto husband shall in addition to periodic child support pay or reimburse to the de facto wife, the following non periodic expenses in respect of the children:-

a. The youngest child’s pre-school fees, all school fees including private school fees, levies and other compulsory education-related costs and expenses, from the date of these Orders for the three children until each child attains the age of eighteen years or completes the final year of his or her secondary school in the year of his or her eighteenth birthday (whichever is the later) including but not limited to all:-

i. school fees, enrolment fees, non-refundable deposits, tuition fees and levies, reasonable levels of school uniforms, school shoes, school sports uniforms, school sports shoes, local excursions including school camps;

ii. compulsory and recommended textbooks, compulsory school computers, compulsory school music equipment, school recommended additional classes, school requested sporting equipment; and

iii. other compulsory parent contributions, including but not limited to such things as building levies and the like.

b. Private health and hospital insurance premiums for each of the children at the current rate of cover and with the current or similar provider, until each child attains the age of eighteen years or completes the final year of his or her secondary school in the year of his or her eighteenth birthday (whichever is the later);

c. Ninety per cent of any gap in medical, dental and optical expenses, including any treatments or medications prescribed by the children’s treating General Practitioner or other specialist health provider, ‘equipment’ such as braces, spectacles, prescription sunglasses, or contact lenses, psychological or other therapeutic expenses until each child attains the age of eighteen years or completes the final year of his or her secondary school in the year of his or her eighteenth birthday (whichever is the later);

20.

The expenses referred to at Order 19 above shall not be expenses for which the de facto husband shall be entitled to seek in any way to reduce his periodic child support amount referred to in these orders above, and the same shall not be the subject of any claim by the de facto husband for any form of credit in respect of his periodic child support liabilities.

21.

All extant applications (other than any applications for costs) are dismissed.

22.

Any costs application/s shall be made in accordance with the Family Law Rules 2004 (Cth).

23.

Exhibit E15 shall be available for collection by the solicitor for the de facto husband as and from the expiry date of the lodgement of any appeal from these orders or such other time as is determined in the event of an appeal.

24.

At the end of the appeal period all other subpoenaed documents be returned to the persons or institutions from which they emanated and all other exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

25.

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel to attend.

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

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