Daeger & Daeger (No 4)

Case [2023] FedCFamC1F 837

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Daeger & Daeger (No 4) [2023] FedCFamC1F 837

File number(s): WOC 484 of 2019
Judgment of: CURRAN J
Date of judgment: 26 October 2023
Catchwords: FAMILY LAW – PROPERTY – final hearing – where there has been a long marriage – adjustment of parties’ property interests between applicant wife and respondent husband – where the date of separation is in contest – where the dates of cohabitation are in contest – where there were several periods of separation – where the personal property of the parties has not been valued – sale of former matrimonial home – where legal fees paid are sought as an addback – where there is a history of family violence between the parties – where each party has primary care of a child – where it is agreed that contributions are equal – whether just and equitable for parties’ property interests to be adjusted – adjustment is warranted
Legislation:

Family Law Act 1975 (Cth) ss 75, 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.06

Cases cited:

Bevan & Bevan (2013) FLC 93-545

Chorn & Hopkins (2004) FLC 93-204

Clauson & Clauson (1995) FLC 92-595

Daeger & Daeger (No 2) [2023] FedCFamC1F 19

Daeger & Daeger (No 3) [2023] FedCFamC1F 437

DJM v JLM (1998) FLC 92-816

Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) 30 Fam LR 355

Kowaliw & Kowaliw (1981) FLC 91-092

Omacini & Omacini (2005) 33 Fam LR 134

Stanford & Stanford (2012) 247 CLR 108

Townsend & Townsend (1995) FLC 92-569

Trevi & Trevi (2018) FLC 93-858

Division: Division 1 First Instance
Number of paragraphs: 191
Date of last submission/s: 10 August 2023
Date of hearing: 22 & 24 – 26 May 2023
Place: Sydney
Counsel for the Applicant: Ms Beck
Solicitor for the Applicant: Caldwell Martin Cox
Counsel for the Respondent: Ms Vogel
Solicitor for the Respondent: Shiels Lawyers Pty Ltd

ORDERS

WOC 484 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS DAEGER

Applicant
AND:

MR DAEGER

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

26 OCTOBER 2023

THE COURT ORDERS THAT:

Property adjustment

1.The net property of the parties be divided such as to effect a division of 52.5% to the husband and 47.5% to the wife as set out in orders 11 and 13 below.

Sale of former matrimonial home

2.Within 7 days of the date of these orders, the husband shall do all such acts and things and shall execute all deeds, documents and instruments as may be necessary to list for sale and sell the former matrimonial home situated at and known as SS Street, Town TT in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio … (the “Town TT property”).

3.The parties shall engage an agent as agreed between the parties with respect to the sale.

4.In…

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Daeger & Daeger (No 4) [2023] FedCFamC1F 837
Case
[2023] FedCFamC1F 837
Decision Date

CaseChat Overview and Summary

The matter before the Court involved a final hearing in a property settlement proceeding between Ms Daeger (the wife) and Mr Daeger (the husband). The central issues were the determination of the date of separation, the valuation and division of their assets, and the sale of their former matrimonial home. The wife argued for a later separation date, which would have resulted in a more substantial property pool, while the husband contended for an earlier separation date, which would have reduced the pool. The Court had to consider various pieces of evidence, including birth certificates, taxation records, and various other documents, to ascertain the true date of separation and the extent of the property pool.

The Court found that the wife's evidence, supported by independent documentation, was more credible and concluded that the parties separated on 20 January 2019. The Court also decided that the assets and superannuation should be divided in a ratio of 52.5% to the husband and 47.5% to the wife. The Court ordered the sale of the former matrimonial home and detailed the procedure for the sale, including the appointment of an agent and a conveyancer, the method of sale, and the distribution of the sale proceeds. The Court also made specific orders regarding the division of personal property, the payment of legal fees, and the occupation and encumbrance of the former matrimonial home pending the sale.

The Court issued detailed orders for the division of the parties' property, the sale of the former matrimonial home, and the distribution of the sale proceeds. The Court also appointed the wife as the Trustee in the event the husband failed to comply with the sale orders. Furthermore, the Court declared the ownership of specific personal items and outlined the procedure for enforcing the payment of any money due under the orders. The Court emphasized the importance of adhering to the Family Law Act 1975 (Cth) provisions concerning the publication of proceedings involving family law.

Orders

Orders of the court

WOC 484 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DAEGER

Applicant

AND:

MR DAEGER

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

26 OCTOBER 2023

THE COURT ORDERS THAT:

Property adjustment

1. The net property of the parties be divided such as to effect a division of 52.5% to the husband and 47.5% to the wife as set out in orders 11 and 13 below.

Sale of former matrimonial home

2. Within 7 days of the date of these orders, the husband shall do all such acts and things and shall execute all deeds, documents and instruments as may be necessary to list for sale and sell the former matrimonial home situated at and known as SS Street, Town TT in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio … (the “Town TT property”).

3. The parties shall engage an agent as agreed between the parties with respect to the sale.

4. In the event that the parties are unable to agree on an agent within 7 days of these orders, then:

(a) Within 14 days of the date of these orders, the wife shall forward to the husband a list of three agents; and

(b) Within a further 7 days upon receipt of the list referred to in order 4(a) herein, the husband shall select one agent from the list; and

(c) Within a further 7 days the parties shall jointly appoint the agent selected by the husband to be the agent with respect to the sale; and

(d) In the event that the husband does not comply with order 4(b), the wife shall select one agent from the list and notify the husband and within a further 7 days the parties shall jointly appoint the agent selected by the wife to be the agent with respect of the sale.

5. The parties shall engage a conveyancer as agreed between the parties with respect to the sale.

6. In the event that the parties are unable to agree on a conveyancer within 7 days of these orders, then:

(a) Within 14 days of the date of these orders, the wife shall forward to the husband a list of three conveyancers; and

(b) Within a further 7 days upon receipt of the list referred to in order 6(a) herein, the husband shall select one conveyancer from the list; and

(c) Within a further 7 days the parties shall jointly appoint the conveyancer selected by the husband to be the conveyancer with respect to the sale; and

(d) In the event that the husband does not comply with order 6(b), the wife shall select one conveyancer from the list and notify the husband and within a further 7 days, the parties shall jointly appoint the conveyancer selected by the wife to be the agent with respect of the sale.

7. For the purposes of order 2 the following shall apply:

(a) The husband shall do all acts and things as may be necessary to appoint the agent as agreed pursuant to orders 3 and 4 to market and sell the Town TT property;

(b) The husband shall grant authority to the agent to provide information to the wife or her solicitor as and when requested, including such information as the marketing plan, copies of the photographs taken of the property, details of any open house inspections and all offers made on the property;

(c) The husband shall do all acts and things as may be necessary to appoint the agreed conveyancer to act as the conveyancer as agreed pursuant to order 5 and 6 on the sale of the property and to forthwith engage such conveyancer and shall sign all documents necessary to list for sale and sell the property;

(d) The husband shall sign the agency agreement with the chosen agent within 7 days of receipt of the same from the nominated agent;

(e) If the parties do not agree on a listing price, the parties shall be guided by the valuation of the property by Mr ZZ dated 23 May 2023, and the listing price shall be as per that valuation;

(f) The husband must accept any offer that is the same as or higher than the valued price of the property; and

(g) Either party may purchase the property at any time during the sale process on the basis that the purchase price is the same as or higher than the valuation referred to in (e) above AND is higher than any other offer made by prospective purchasers.

8. In the event that the Town TT property has not sold within 12 weeks of being listed for sale by private treaty in accordance with order 2 above, the husband shall do all such acts and things and sign all such deeds, documents and instruments as may be necessary to cause the said property to be sold by the same agent by way of public auction on the following terms:

(a) That such auction take place within 6 weeks from the date of placing the property for sale by public auction or as soon as practicable thereafter;

(b) That the reserve price for such auction shall be as agreed between the parties or, failing agreement for more than seven days, as determined by the selling agent;

(c) That the husband shall pay all auction expenses as requested by the selling agent as and when they fall due;

(d) That the husband shall do all such acts and things as may be necessary or recommended by the selling agent to properly present the property for sale and to make it available for inspection by prospective purchasers;

(e) That either party shall be at liberty to bid for the purchase of the property at auction; and

(f) That the husband shall attend the auction and if necessary negotiate with the highest bidder at auction if the reserve price is not reached.

9. Upon completion of the sale of the property in accordance with these orders, the husband shall distribute the sale proceeds in the following order and priority:

(a) In discharge of the mortgage secured over the property to ANZ Bank;

(b) In payment of the parties’ liability secured over the property to Westpac bank;

(c) In payment of the ANZ personal loan in the sole name of the wife;

(d) In payment of legal costs, real estate agent’s commission, auction expenses and GST upon the said sale; and

(e) The balance to be distributed as to the husband and wife in accordance with these orders such as to effect an overall distribution of the net pool of 52.5% to the husband and 47.5% to the wife.

10. The net pool is to be calculated as:

(a) the net sale proceeds from the sale of the Town TT property in accordance with order 9 above;

(b) plus the total superannuation of the husband being $30,252.00;

(c) plus the total superannuation of the wife being $775.00.

11. The 52.5% of the net pool as defined in order 10 above, less the sum of $30,252.00 (the total of the husband’s superannuation entitlement), is to be paid into the trust account of the husband’s solicitor.

12. Forthwith upon the husband’s solicitor receiving the sum referred to in order 11 above, the husband is to do all things necessary to authorise and direct his lawyers to pay the following sums as directed:

(a) the sum of $4,397.10 to the wife in compliance with the Costs Order of the Federal Circuit and Family Court of Australia of 22 September 2021;

(b) and the sum of $7,500.00 to the wife in compliance with the Costs Order of the Federal Circuit and Family Court of Australia of 22 May 2023; and

(c) the sum of $8,185.00 to AB Council being the outstanding council rates for the Town TT property.

13. The 47.5% of the net pool as defined in order 10 above less the wife’s superannuation amount of $775.00 is to be paid to the trust account of the wife’s solicitor.

Trustee for sale

14. In the event that the husband refuses or neglects to comply with orders 2 to 6 above within 6 weeks of the date of these orders, the wife shall forthwith thereafter be appointed Trustee of the husband’s interest in the property situated at and known as SS Street, Town TT in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio … with all of the powers of a Trustee for the sale of the property and the distribution of the sale proceeds in accordance with these orders.

15. The wife shall forthwith thereafter do all things necessary to cause the property to be listed for sale and sold in accordance with these orders and shall distribute the sale proceeds in the same order and priority.

Indemnities and restraints

16. Pending completion of the sale:

(a) the husband have the sole right to occupy the Town TT property;

(b) the husband pay all instalments pursuant to the mortgage and all rates, taxes and outgoings of the Town TT property as they fall due; and

(c) the husband is restrained from further encumbering the Town TT property without the consent of the wife or order of this Court.

Other property

17. Subject to orders 11 to 13 above, the wife shall be declared to be the sole legal and beneficial owner of all her right, title and interest in and to:

(a) all cash at bank and moneys invested by her in her sole name;

(b) all furniture and personal effects in her possession;

(c) Motor Vehicle 1 in her possession;

(d) Motor Vehicle 2; and

(e) any superannuation entitlements received by the wife and invested by her or on her behalf.

18. Subject to order 11 to 13 above, the husband shall be declared to be the sole legal and beneficial owner of all his right, title and interest in and to:

(a) all cash at bank and moneys invested by him in his sole name;

(b) all furniture and personal effects in his possession; and

(c) Motor Vehicle 3;

(d) the trailer; and

(e) any superannuation entitlements received by the husband and invested by him or on his behalf.

19. Within 7 days of the date of these orders the husband is to deliver to the wife’s legal representatives any photo albums held in the Town TT property for the purpose of making copies of such photos. Within 21 days thereafter, the husband shall collect the photo albums from the wife’s legal representative and he shall retain them.

Personal property – possession to denote ownership

20. Other than is specifically provided for in these orders the parties are solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of each of the parties as at the date of the making of these orders.

21. Unless otherwise specified in these Orders, and except for the purpose of enforcing the payment of any money due under these or any subsequent Orders:

(a) each party shall be solely entitled to the exclusion of the other in both law and in equity to:

(i) all property (including choses-in-action) in the possession of such party as at the date of this agreement;

(ii) all insurance policies in relation to which they are the Life Insured.

(b) each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

22. In the event that either party fails to sign any necessary documents or instruments or to do any acts required or contemplated by these Orders to be done, with such failure continuing for 14 days, then the Registrar of the Family Court of Australia shall pursuant to section 106A of the Family Law Act 1975 (Cth), have the power to execute any documents or instruments in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.

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

This matter involves competing applications for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) between Ms Daeger (“the wife”) and Mr Daeger (“the husband”). Final parenting orders were made by consent on the first day of the trial such that: the youngest child Y, who is 13 years old, will remain living with his father; and X, who is 15 years old, will remain living with his mother. Both boys have special needs. BACKGROUND The wife’s case is that the parties were married in 1998 and they separated on 20 January 2019. There are five children of the marriage: Mr I born 1999, currently age 23; Mr J born 2000, currently age 22; Ms W born 2001, currently age 21; X born 2007, currently age 15; and Y born 2010, currently age 13. The husband’s case is the parties were married in 1998, but they separated in 2006. His evidence was that the two youngest children who were conceived through In Vitro Fertilisation (“IVF”) were conceived without his consent, and he maintained the date of separation was 2006. There were allegations against each party of a history of serious family violence. The adult sons had aligned with, and gave evidence in support of, the husband. The adult daughter had aligned with, and gave evidence in support of, the wife. Several Apprehended Violence Orders (“AVO”) were in force at different times, and it was the wife’s contention that although there were periods of separation at those and other times, the parties reconciled and the relationship continued until final separation in 2019.LITIGATION HISTORY The wife commenced proceedings on 6 May 2019 seeking parenting and property orders including that the property at SS Street, Town TT (“the Town TT property”) be sold and that $20,000 from the proceeds of sale be paid to each party by way of interim property distribution pending further order of the court. A factual summary of the parenting proceedings is helpfully set out in the previous judgment of Altobelli J in this matter dated 25 January 2023, Daeger & Daeger (No 2) [2023] FedCFamC1F 19. For the purposes of these reasons pertaining to financial proceedings it is unnecessary to detail the facts and procedural history of the parenting proceedings. On 3 March 2021, orders were made by Alstergren CJ that a valuer be appointed for the valuation of the Town TT property as soon as possible. On this day it was listed for final hearing for 7 days on a date to be fixed. On 4 November 2021, the matter was listed for final hearing on 14 March 2022 and trial directions were made by Altobelli J. On 11 February 2022, Altobelli J made orders to vacate the final hearing dates in March 2022 and the final hearing was re-listed for 4 July 2022. On 17 March 2022, Altobelli J made orders to vacate the adjourned hearing dates in July 2022. On 18 May 2022, Altobelli J listed the matter for final hearing to start on 23 January 2023. On 25 August 2022, the January 2023 hearing dates were vacated by Altobelli J.

Evidence

Evidence Before The Court

The alleged criminal history, NSW Police records and AVO applications were not in evidence before me and accordingly there were no contemporaneous records which may have corroborated either parties’ versions as to separation dates.Other independent evidence The independent evidence is supportive of the wife’s narrative as to the date of separation. X’s birth certificate was tendered in evidence at Exhibit 38. It showed both the parents as the informants and that they resided AL Street, Town AM, which is the address the wife says the parties lived at from early 2007 until the end of 2008 whilst the husband was working on the property.[10] The wife’s evidence, not in contest, was that the husband attended the birth.[10] Affidavit of Ms Daeger filed 26 April 2023 at paragraph 14. Y’s birth certificate was also tendered in evidence. It also shows both parents as informants. The address listed was AN Street, Town AK. This address is where the wife says the parties lived from around late 2008 until mid-2011.[11][11] Affidavit of Ms Daeger filed 26 April 2023 at paragraph 16. The details support the wife’s contention that the parties were still in a relationship after 2006, in both 2007 and 2010. The taxation records of the husband were marked as Exhibits 31, 32 and 33. These records show that in 2016, 2017 and 2018 the husband declared his spouse’s details as the wife, and included the wife’s income details each year. It follows that, if the parties were not in a relationship, these details would not have been provided by the parties and would not have been included by the parties’ accountant. This evidence is persuasive and I give it significant weight in relation to the fact of a relationship between the parties at that time. The wife also relied on various items of mail addressed to the wife being sent to the Town TT property as evidence they were living there together. The documents relied upon were:(a)Electricity bill for 24 May 2016 – 16 August 2016, Exhibit 14;(b)Quotation from AP Company dated 20 December 2016, Exhibit 15; (c)Customer Order from BC Company dated 19 December 2016, Exhibit 16; (d)AQ Company tax invoice dated 9 December 2016, Exhibit 17; (e)AR Company tax invoice/quotation dated 21 December 2016, Exhibit 18; (f)AS Company tax invoice dated 23 January 2017, Exhibit 19;(g)AT Company tax invoice dated 19 January 2017, Exhibit 20; (h)Letter from Mastercard dated 8 January 2017, Exhibit 21; (i)AU Company tax invoice dated 23 January 2017, Exhibit 22; (j)Booking confirmation AV Hotel dated 3 January 2017, Exhibit 23; (k)Reservation confirmation AW Venue dated 30 November 2016, Exhibit 24; (l)AX Company invoice dated 15 August 2018, Exhibit 25; (m)AY Finance statement for 23 July 2018 to 22 August 2018, Exhibit 26; (n)Mastercard statement for 6 December 2017 to 5 January 2018, Exhibit 27; (o)AZ Company tax invoice dated 31 July 2018, Exhibit 29; (p)BA Company contract of sale and receipt dated 15 August 2018, Exhibit 30; (q)NDIS letter dated 25 September 2018, Exhibit 35; (r)NDIS letter dated 22 October 2018, Exhibit 36; and(s)Medicare letter dated 3 August 2018, Exhibit 37.

Decision

Reasons for decision

Counsel for the husband contended that the fact of the IVF births was evidence in support of a finding of separation in 2006. I do not accept that submission. The fact of the IVF treatment and births of Y and X supports the wife’s case that the parties remained in a relationship at these times.CONCLUSION I have concluded that the parties’ assets and superannuation should be split in such a way as to ensure that the husband receive 52.5 per cent of the total pool (which includes both assets and superannuation). I have also ordered that each party retain their respective superannuation entitlements. In making the orders for sale and division of the net proceeds I have expressed the amounts to be received in percentage terms to take into account the reality that whatever the single expert opined as to the value of the Town TT property, the actual figure will likely be different due to the unknowns of sales costs and actual sale price. There is also some uncertainty in respect of the final joint liability arising from the second mortgage. If in fact it is a higher liability as contended by Mr I, rather than the $126,300.00 as deposed by the parties, the proceeds for division will be reduced by a further amount of approximately $320,000.00. I have taken into account this possibility and am still of the view that the division proposed and the ultimate outcome is just and equitable, on either scenario. I will order that the Town TT property be sold and the husband and wife receive amounts necessary to effect the overall percentage adjustment.

Ratio Decidendi

Legal Principle Established

The evidence supports, and I find, there were incidents of family violence between the parties as deposed. The date of separation The husband asserted the date of final separation was 2006. The Town TT property was purchased in 2012. There was no dispute that it was purchased in the sole name of the husband. At paragraph 2 of the husband’s affidavit filed 5 May 2023 he deposes “There are five children to our union. Three were born whilst we were married and two were born after separation.” Other than his assertion, there is very little independent evidence to support the husband’s contention as to the date of separation. He relied upon the Child Support records he produced to support his contention as to the date of separation, which as referred to below do not assist his case. He also relied on evidence from his adult sons and the wife’s sister. Both adult sons, Mr I and Mr J, gave evidence that their mother did not live with them at the Town TT property. Mr I gave evidence of an absent mother who, after 2011, did not live with the family but “would visit” other than when she moved into the granny flat in late2018 “while she was waiting for her property to be built” and that she lived at the Town TT property “from time to time” before late 2018. He also said the wife was not really living at the property although he knew she was “renting with us” in the granny flat at the end of 2016. In cross examination Mr I’s evidence was challenged. For example, he was challenged about the fact of the mother living at Town TT and driving him to his workplace prior to him being licenced, which he accepted happened for a short time. I found his evidence to be confusing and inconsistent. He would go off on tangents and not answer questions directly. I place little weight on his evidence. Mr J’s evidence during cross-examination was that the wife did not ever live at the Town TT property, apart from a period of 6 months when she was “renting” in 2013. Mr J’s affidavit evidence was inconsistent with his oral evidence about the period of time the wife was living at the Town TT property. He gave evidence that she had not lived there apart from a few months from late 2018, but in oral evidence he said she had not lived there at all and only stayed in 2016. I place little weight on this evidence. The wife’s sister’s evidence was vague and confusing. I did not find her to be a good historian and put little weight on her evidence. The wife’s evidence was that there were specific periods of separation during the relationship, following incidents of family violence. Specifically, those periods were;(a)In 2001 while pregnant with Ms W for 6 months, during which time she received parenting payment from Centrelink;[6](b)In 2007 following an assault on the wife by the husband where he was charged and moved out of the home owned by Mr AJ for a period of 3 months;[7] and(c)In 2010 following an assault on Ms W where the wife and five children moved into wife’s grandmother’s home in Town AK and several months later parties reconciled and the husband moved into that property.[8][6] Affidavit of Ms Daeger filed 26 April 2023 at paragraph 165. [7] Affidavit of Ms Daeger filed 26 April 2023 at paragraph 166. [8] Affidavit of Ms Daeger filed 26 April 2023 at paragraph 167.