Crampton and Robinson (No. 2) - [2013] FamCA 856

FAMILY COURT OF AUSTRALIA

CRAMPTON & ROBINSON (NO. 2)

[2013] FamCA 856

FAMILY LAW – PROPERTY – Husband to transfer matrimonial home to wife

Family Law Act 1975 (Cth): ss79(4), 75(2)

Omacini& Omacini (2005) FLC 93-218
Pierce v Pierce (1998) 24FamLR 377
Stanfod & Stanford (2012) 247 CLR 108

APPLICANT:

Mr Crampton

RESPONDENT:

Ms Robinson

FILE NUMBER:

SYC

326

2011

DATE DELIVERED:

31 October 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Cleary J

HEARING DATES:

23, 24 & 25 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gersbach

SOLICITOR FOR THE APPLICANT:

Fitzpatrick Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Beaumont

SOLICITOR FOR THE RESPONDENT:

Michael Conley Lawyers

Orders

That within 40 days of the making of these Orders the husband shall transfer to the wife all his right title and unencumbered interest in the property situate at B Street, Suburb C in the State of New South Wales (“Suburb C”).
That simultaneously with Order 1 herein the wife shall do all such things and sign all such documents necessary to discharge the mortgage to Heritage Home Loan secured over Suburb C and pending such discharge the wife shall indemnify the husband in relation to the mortgage and shall pay the minimum mortgage repayments as and when they fall due.
That simultaneously with orders 1 and 2 herein the husband shall cause to be paid to the wife or to such account as may be nominated by the wife, such sum as may be agreed in writing between the parties and failing agreement such sum as may be assessed in respect to:
(a) Order 3 of the Orders dated 11 February 2013; and
(b) Order 10 of these Orders.
That unless otherwise specified in these Orders as against the husband the wife is solely entitled to and the husband has no interest in:
(a)the household contents of Suburb C;
(b)the wife’s bank accounts;
(c)the wife’s personal effects including jewellery;
(d)the wife’s superannuation entitlements, namely E Super, D Super (two policies);
(e)the wife’s motor vehicle Honda … subject to the car loan with St George Bank; and
(f)all other property and financial resources in the name or control of the wife as at the date of making these Orders.
That unless otherwise specified in these Orders as against the wife, the husband is solely entitled to and the wife has no interest in:
(a)all bank accounts in the name of the husband;
(b)household furniture and personal effects in the possession of the husband;
(c)the husband’s superannuation entitlements, D Super 1 and D Super 2;
(d)the husband’s motor vehicle Subaru …; and
(e)all other property and financial resources in the name or control of the husband as at the date of the making of these Orders.
That unless otherwise specified in these Orders:
(a)each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of…

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 Crampton and Robinson (No. 2)

Details

AGLC: Crampton and Robinson (No. 2) [2013] FamCA 856
Case: [2013] FamCA 856
Decision Date

CaseChat Overview and Summary

This matter concerned financial adjustment proceedings between a husband and wife, heard in the Family Court of Australia. The primary dispute revolved around the husband's contention that certain expenditures by the wife, specifically legal fees incurred in the proceedings and a notional occupation fee for the former matrimonial home, should be added back into the pool of matrimonial assets. Conversely, the wife sought to have the husband's legal fees paid from his income in 2010 added back.

The court was required to determine whether the wife's legal fees paid from her income after the commencement of proceedings should be added back to the asset pool, and similarly, whether the husband's legal fees paid from his income in 2010 should be added back. Additionally, the court had to consider the husband's claim for an occupation fee to be paid by the wife for her continued residence in the former matrimonial home, calculated by reference to mortgage payments that were not made. Finally, the court needed to assess the husband's contention that Restricted Stock Units (RSUs) awarded to the wife should be treated as a financial resource.

The court rejected the husband's submission to add back the wife's legal fees, finding they were a legitimate expense paid from her income after proceedings commenced. For the same reason, the court endorsed the husband's submission that his own legal fees paid from income in 2010 should not be added back. The husband's claim for an occupation fee was also rejected, as the court considered it artificial to add back a notional figure and stated that the issue of mortgage payments was more appropriately dealt with in the context of assessing the parties' respective contributions between separation and the hearing. The court agreed with the husband that the wife's RSUs should be considered a financial resource, acknowledging they would be received as taxable additions to her income. The court then calculated the net asset pool, totalling $1,431,879, with the husband's interest at $847,612 and the wife's at $584,267. The court noted the parties were separated tenants in common of the former matrimonial home, with the wife residing there, supporting a child, and maintaining the home, while the husband was unable to contribute financially. The court indicated a need for an alteration of interests to reflect new arrangements and future needs, considering both contributions and future requirements.

Orders

Orders of the court

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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 husband contended for certain items of expenditure by the wife to be added back into the pool of matrimonial assets.Items 15-17 Paid legal fees of the wife in respect of these Proceedings: $91,979I do not accept this submission. The fees were paid from the income of the wife as a legitimate expense after the husband commenced proceedings in January 2011. For the same reason, I endorse the submission on behalf of the husband that his fees paid from income in 2010 should not be added back[8].Items 14 & 14A[8] Item 18The husband contends that effectively an occupation fee should be paid by the wife for her occupation of Suburb C. The fee is fixed by reference to mortgage payments which might have been paid[9] but were not, namely $110,145. This figure was discounted by the sum of $18,000 actually paid by the wife off the mortgage.[9] Exhibit 15 I reject this submission. This is to disregard the legal obligation of each party to meet mortgage payments. The husband has not made any payment toward the mortgage. This issue is properly dealt with in any consideration of the relative contributions of the parties between separation and date of hearing. It would be artificial to add back a figure in this way[10] and I have not done so.Items 38, 39RSU’s $132,286 Gross Tax est: $27,827 The husband contends for the consideration of Restricted Stock Units awarded to the wife over a four year vesting period to be taken into account as financial resources of the wife. I agree. She will receive them as taxable additions to income and I will consider the wife’s income as elevated in that way in this year and the next as it was in 2011 and 2012. [10] Omacini& Omacini (2005) FLC 93-218 Accordingly, the asset pool of the parties which combines their actual net interests is:(A) The husband $ 847,612(B) The wife $ 584,267Total $1,431,879 The parties are separated and not divorced. Nevertheless, the agreement between them about financial arrangements which operated during cohabitation no longer meets their circumstances. There is no question of reconciliation. The mortgage debt must be addressed. The husband is presently unable to contribute at all. The wife is willing to take over the mortgage debt if she acquires the interest of the husband in the property. The joint tenancy in the property appropriate to marriage has been severed. The parties are now tenants in common as to equal shares. This is a reflection of their separation. However, the mortgage continues as a joint liability. After 19 years of a relationship, 15 of those years in cohabitation, the position is this. The wife is living in the home. She is working fulltime. She is supporting and caring for the parties’ child and maintaining the home. She has made some mortgage payments at a rate negotiated with the bank. Until May 2013, the wife supported and cared for G. She is a continuing member of the household but since that date she became a legal adult and is now contributing. There does need to be an alteration of interests to reflect the new arrangements and for the future. The nature of that alteration requires a consideration both of the contributions and future needs of each party.