Cato and Cato (No. 2) - [2012] FamCA 769

FAMILY COURT OF AUSTRALIA

CATO & CATO (NO. 2)

[2012] FamCA 769

FAMILY LAW - PROPERTY– Application by the wife for property orders – Where the wife was self-represented – Where the wife argued that funds existed which were unaccounted for – Where there the wife’s argument failed – Whether funds should be notionally added back to the property pool – Where there is no principled basis for doing so – Assessment of the contribution of the parties – Initial contributions – Contributions favour husband 56 per cent compared to wife’s 44 per cent – Consideration of factors under s 79 and s 75(2) of the Family Law Act 1975 (Cth) – Where husband has significant earning income – Where husband’s application that wife take a portion of her entitlement in superannuation refused - Where an adjustment pursuant to s 75(2) of 14 per cent to the wife is appropriate.

Family Law Act 1975 (Cth): ss 79; 75(2); 79(4) and 79(2)

Bell & Bell [2000] FamCA 1301
Cerini [1998] FamCA 143
Farmer & Bramley (2000) FLC 93-060
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595
Kelly & Kelly(No. 2) (1981) FLC 91-108
Kowaliw & Kowaliw (1981) FLC 91-092
Marker& Marker[1998] FamCA 42
Norbis v Norbis (1986) 161 CLR 513
Pierce & Pierce (1999) FLC 92-844
Tomasetti & Tomasetti (2000) FLC 93-023
Townsend & Townsend (1995) FLC 92-569
Waters & Jurak (1995) FLC 92-635

APPLICANT:

Ms Cato

RESPONDENT:

Mr Cato

FILE NUMBER:

SYC

7191

2008

DATE DELIVERED:

7 September 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

2-5 July 2012

REPRESENTATION

ADVOCATE FOR THE APPLICANT:

Ms Cato appeared in Person

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Abrams Turner Whelan

Orders

That by way of final property settlement, pursuant to section 79 of the Family Law Act 1975 (Cth):
(a)That within three months of the date of these orders, Mr Cato (“the husband”) shall pay Ms Cato (“the wife”) the sum of $1,001,850.00.
(b)That contemporaneously with the husband’s compliance with Order 1(a) of these orders, the husband and the wife shall do all acts and things and sign all documents and the husband shall pay all monies necessary to obtain a discharge of the registered mortgage in favour of the Commonwealth Bank of Australia secured on the title to the former matrimonial home and numbered …51 (“the Property M mortgage”).
(c)That contemporaneously with the husband’s compliance with Orders 1(a) and 1(b) of these orders, the wife shall do all acts and things and sign all documents necessary to:
(i)transfer to the husband the whole of her right, title and interest in the former matrimonial home known as Property M, being the whole of the property contained in Certificate of Title Folio Identifier …015 (“Property M”);
(ii)transfer to the husband the whole of her right, title and interest in…

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 Cato and Cato (No. 2)

Details

AGLC: Cato and Cato (No. 2) [2012] FamCA 769
Case: [2012] FamCA 769
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard proceedings between Ms Cato (the wife) and Mr Cato (the husband) concerning property settlement. The wife, who was self-represented, alleged that the husband had failed to account for certain funds and sought a greater share of the asset pool. The parties agreed on the transfer of the former matrimonial home and the wife's interests in a company and a trust to the husband, with the husband indemnifying the wife against associated liabilities. The central dispute revolved around the valuation of the net asset pool and the appropriate adjustment of contributions and future needs.

The court was required to determine the value of the net asset pool, considering the wife's claims regarding unaccounted funds and the husband's contention regarding the valuation of his interests in family companies. Further issues included assessing the parties' respective contributions to the marriage, both financially and non-financially, and considering factors under section 75(2) of the *Family Law Act 1975* (Cth), such as the husband's significant earning capacity and the wife's current financial situation and past role as primary homemaker and caregiver. The court also had to decide whether to grant the husband's application for the wife to take a portion of her entitlement in superannuation.

The court found no principled basis for notionally adding back funds to the property pool as argued by the wife. It assessed the parties' contributions, finding that the husband's contributions favoured him at 56 per cent compared to the wife's 44 per cent. Applying section 75(2) of the Act, the court determined that a 14 per cent adjustment in favour of the wife was appropriate, taking into account the husband's superior earning capacity and the wife's circumstances. The husband's application for the wife to receive part of her entitlement in superannuation was refused.

The final orders stipulated that the husband was to pay the wife $1,001,850.00 within three months. This payment was to be made contemporaneously with the discharge of the mortgage on the former matrimonial home and the wife's transfer of her interest in the home, company, and trust to the husband. The husband was to indemnify the wife against various liabilities related to these assets. The husband was also ordered to assign his interest in a specific bank account to the wife. Otherwise, each party was to retain assets in their sole names. Upon compliance with the payment order, the existing spousal maintenance order was to be discharged. The court also made provision for a registrar to sign documents on behalf of a defaulting party and dismissed all outstanding applications, subject to any application for costs.

Orders