Crittenden and Crittenden

[2017] FamCA 121

FAMILY COURT OF AUSTRALIA

CRITTENDEN & CRITTENDEN [2017] FamCA 121

FAMILY LAW – PRACTICE AND PROCEDURE- - PARTIAL PROPERTY SETTLEMENT

APPLICANT: Mr Crittenden

RESPONDENT: Ms Crittenden

FILE NUMBER: SYC 5895 of 2015

DATE DELIVERED: 3 March 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 3 March 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Manning Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: WG McNally Jones Staff Solicitors

Orders

IT IS ORDERED

1. That within seven days the parties do all things and sign all documents necessary to authorise the payment to the husband, by way of partial property settlement, of the sum of $150,000 from the controlled monies account held by B Pty Limited.          

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crittenden & Crittenden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5895 of 2015

Mr Crittenden

Applicant

And

Ms Crittenden

Respondent

REASONS FOR JUDGMENT

1. Mr Crittenden (“the husband”) and Ms Crittenden (“the wife”) are engaged in litigation about their property and their children after a marriage (including separation) of 16 years.

2. They separated in January 2013.

3. The husband has brought an application for interim property settlement in which he seeks payment of the sum of $150,000 from a controlled money account with a balance of $271,000. The wife asks for that application to be dismissed.

4. The wife has remained living, with one of the two children, in the only valuable asset of the parties which is their home valued, for the present purpose, at $980,000.

5. For the purpose of this application, I will adopt the wife’s version of the balance sheet and her assertions as to value.

6. The only other assets are the controlled money account of $271,000 and personalty valued by the wife at $58,000 which includes the husband’s tools of trade at $15,000, his “Memorabilia” at $5,000, his household contents of $15,000  and their respective motor vehicles valued at $10,000 each.

7. Each of the parties has superannuation, the husband’s valued at $80,000 and the wife’s at $85,000.

8. The wife asserts the parties have liabilities of $251,000 leaving a net asset pool, excluding superannuation of approximately $1,058,000.

9. During the marriage the husband ran a business which provided the financial support for the family. The business went into liquidation, completed in August 2015. There were no assets of the business remaining to be distributed and its debts were written off.

10. The wife’s opposition to the present application has two bases. Firstly she asserts that about $272,000 should be “Added Back” as assets of the husband. The proposed Add Backs include the value of the business prior to the liquidation of $119,000 of which sum $60,000 was the husband’s loan account; the proceeds of sale of a boat of $4,500 and the proceeds of sale of shares of about $70,336 which the husband admits was used to pay legal fees.

11. From whence this money could be added back was not explained as the wife wishes to retain the home, her superannuation, and any personal property in her possession.

12. The wife asserts that because of the husband’s financial conduct after separation (she alleges he deliberately ran the business into liquidation) and because of his financial non-disclosure, he will not receive anything by way of adjustment of property in the final determination.

13. In support of her assertion that the husband has failed to make proper financial disclosure, the wife relies on bank statements which show small amounts of money going in and out of the husband’s bank account in periods where he deposed that he had no income. The wife may be successful in persuading the trial judge that the husband’s statement that he had no income was inaccurate. Whether it was deliberately false is another matter. In any event, the amounts involved are small and while the statements show money being paid into the husband’s account, they also show money being paid out for expenses including living expenses and what appears to be business supplies. The wife was unable to point to any substantial credit balance in the account at any time.

14. Whether or not the trial judge accedes to the wife’s proposal for add backs or not, it is the wife’s case that the husband is not entitled to any more than the funds he has already received.

15. Thus of the net pool of real assets of $1,058,000 the husband, on the wife’s case, would receive his tools, car, memorabilia and household contents and she would retain the balance, after a marriage of 16 years where the husband has the care of one of the children. To state that proposition demonstrates its  inherent improbability.

16. The husband seeks a payment of 14 per cent of the net assets (excluding superannuation). It is unlikely that his entitlement on the final determination of the proceedings would be less than that.

17. The husband proposes to use the money to pay his legal costs. He will be spending his own funds and if he expends the whole of his property settlement on his legal fees, that will be his choice.

18. Orders will be made in accordance with the husband’s application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 3 March 2017.

Associate: 

Date:  3/3/2017