Esmore & Blandford

Case [2021] FedCFamC1F 195

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Esmore & Blandford [2021] FedCFamC1F 195

File number(s): ADC 1455 of 2016
Judgment of: MEAD J
Date of judgment: 15 November 2021
Catchwords: FAMILY LAW – Property – Where the parties were in a de facto relationship for eighteen and a half years – Where the parties have four children – Where the two older children moved to live in the care of their maternal grandparents from the ages of approximately 10 and 12 respectively – Where the parties’ younger twin children continued to reside with the parties in the family home until separation in 2016 – Where the parties’ relationship involved regular heavy drinking, regular heated arguments and where on occasions the arguments involved verbal abuse, violence and police involvement – Where the respondent suffers serious mental health challenges from time to time – Where there have been two sets of parenting proceedings between the parties – Where the older children are now adults and where the current final parenting orders relating to the parties’ twins were made on 24 September 2020 – Where the orders provide for the twins to live five out of every fourteen nights with the applicant and at all other times with the respondent – Where the respondent lives in Sydney at least ten out of twenty-eight days – Where at those times the maternal grandparents care for the twins – Where the applicant seeks a 50/50 division of the main net non-superannuation asset and a splitting order in his favour to equalise the parties’ superannuation entitlements – Where the respondent opposes any order for property adjustment and orders for her to retain the total gross non-superannuation asset pool together with the full balance of her superannuation entitlements – Where the respondent relies on the “Kennon” argument – Where the respondent and her father (previously the second respondent) provided the initial funds for the purchase of the family home – Where both parties earned modest income throughout their relationship – Where it is the respondent’s case that the applicant made no financial or non-financial contribution to the welfare of the family – Where the Court is unable to make such a finding on the evidence albeit that the financial and non-financial contributions of the respondent were greater – Where the respondent’s father provided significant financial and non-financial support to the parties and their children – Where the respondent’s father had a claim in his own right for funds to be repaid to him – Where his claim was settled by way of consent orders made on 17 August 2021 – Where the Court finds it just and equitable for an order to be made adjusting the financial interests of the parties – Where having considered the financial and non-financial contributions of the parties during the relationship and post-separation together with s 90SF(3) factors the Court finds it just and equitable to adjust the financial interests of the parties as to 70/30 in favour of the…

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Esmore & Blandford [2021] FedCFamC1F 195
Case
[2021] FedCFamC1F 195
Decision Date

CaseChat Overview and Summary

Esmore & Blandford involved a dispute between the parties regarding the division of their net assets following their separation. The applicant, Esmore, and the respondent, Blandford, had been in a relationship for eighteen and a half years and had one child together. The primary legal issue the court had to address was whether it was just and equitable to make an order for property settlement in favor of the applicant. The court needed to consider the financial contributions made by each party, their capacity for gainful employment, their ability to support themselves and their child, and the overall standard of living enjoyed by the parties and their child.

The court found that the applicant had made a significant contribution post-separation by way of his parenting role over a period of some five and a half years. However, during the relationship, the respondent had made the overwhelming financial contribution to the acquisition of their only substantial asset, a property in Suburb C. The court also found that the respondent's contributions were made more arduous than necessary due to verbal and physical abuse directed towards her on a regular basis throughout the period of the relationship. Taking into account the value of the asset pool, the contributions made by each party, and the findings of abuse, the court determined that a 70/30 per cent division in favor of the respondent would result in a just and equitable division of the parties' assets.

The court ordered that the parties' net assets should be divided as to 30 per cent to the applicant and 70 per cent to the respondent. The net assets available for distribution, including superannuation, totaled $625,026.61. The applicant was to retain net non-superannuation assets of $24,676, while the respondent was to retain net non-superannuation assets of $199,152. The court also ordered a split of the parties' superannuation entitlements such that the respondent retains 70 per cent and the applicant 30 per cent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In simple terms those orders are:·That the Initiating Application be dismissed in its entirety;·That she retain the remaining net proceeds of sale of the Suburb C property currently in her solicitor’s trust account in their entirety;·That otherwise each party keep their respective personalty including their superannuation entitlements for their own use and benefit absolutely; and·That each party be liable for their own debts.Background The parties commenced a relationship in late 1996 and commenced cohabitation sometime early in 1997, prior to Mr V’s birth in 1997. At that time the applicant was aged 24 years and the respondent 19 years. She had fallen pregnant, on her evidence, within approximately one month of the parties commencing their relationship. The parties’ commenced cohabitation in South Australian Housing Trust accommodation in Suburb G rented in the respondent’s name. The weekly rental was approximately $25 which amount was deducted directly from the respondent’s government pension. The respondent was still a student when she became pregnant and did not have paid employment prior to Mr V’s birth. She was in receipt of a government pension. At the time the relationship commenced the applicant was an apprentice and earning, on his evidence, minimal apprentice wages. In cross-examination the applicant said that after a period of approximately twelve months in the unit the respondent advised South Australian Housing Trust that he was also residing there and the rent was increased to $50 per week. The parties then left that accommodation and moved to rented premises in Suburb H. His uncontested evidence was that the rent at that property was $250 per week, that the lease was in both he and the respondent’s names, and that he paid the rent in circumstances where the respondent at that time did not have a job. On the respondent’s evidence she commenced work when Mr V was approximately 18 months old which would have been in 1999, some six months or so after the parties moved to Suburb H. The employment involved shift-work including night-shift but was the equivalent of fulltime hours. The applicant deposed to commencing employment with J Company at about the time the parties moved into the Suburb G unit, working 40-60 hours per week including night-shift as a casual employee. He was not challenged as to the evidence contained in paragraph 14 of his trial affidavit, namely that the parties primarily used his income as well as the respondent’s pension for their living expenses. The parties remained living in the rented accommodation at Suburb H until they moved into a property that was purchased in Suburb C in or about March 2000. It was the applicant’s evidence that in 1999 he and the respondent had commenced looking to purchase a family home. That evidence was not disputed by the respondent. The applicant conceded in cross-examination that the respondent attended at a couple of auctions of properties on her own but it was common ground that the applicant, the respondent and the second respondent all attended at the auction of the property at B Street, Suburb C and that the respondent was the successful bidder. The property cost $187,000 but at settlement approximately $195,000 was required inclusive of the costs of purchase.

Evidence

Evidence Before The Court

It was overall the position of the respondent that:·This is not a matter where the Court could be satisfied that the threshold necessary to justify the making of an order for settlement of property is met;[3][3] Stanford & Stanford (2012) FLC 93-518 (“Stanford & Stanford”).·The applicant made no financial contribution to the acquisition of the Suburb C property, neither by way of initial deposit or by way of payments to her father in reduction of the debt to him;·The applicant was never involved at any level in financial discussions between she and her father;·The applicant always regarded the Suburb C property as hers and accordingly declined to contribute any monies towards the conservation or preservation of the property;·The parties always kept completely separate finances;·The applicant utilised his income for his own purposes;·She was almost solely responsible for all household outgoings and children’s expenses in circumstances where the applicant failed to contribute to these outgoings, save and except for paying the home telephone bill which included Foxtel and the internet;·The applicant also made little to no non-financial contribution in that he did not assist in the care of the children, did not do other than rare and minimal housework either inside or outside of the house;·All of these factors support the respondent’s position that it is not just and equitable to make any order for settlement of property in favour of the applicant;·In the event the Court determines such an order should be made, the lack of contribution by the applicant at either a financial or non-financial level speaks against a finding of contribution in his favour, and·In circumstances where the applicant was controlling of and violent to her on an almost constant basis throughout the period of their relationship, she was justified in seeking that the Court find her contribution had been made significantly more arduous such that greater weight should be given to that contribution in accordance with the decision in Kennon & Kennon (1997) FLC 92-757 (“Kennon & Kennon”).The evidence The applicant relied on the following documents:·Further Amended Initiating Application filed 15 July 2021;·Affidavit of Mr Esmore filed 15 July 2021;·Affidavit of Mr Esmore filed 20 September 2021; and·Financial statement of Mr Esmore filed 15 July 2021. The applicant was cross-examined by the respondent’s counsel. The documents relied on by the respondent were as follows:·Third Further Amended Response to Initiating Application filed 14 July 2021;·Affidavit of Ms Blandford filed 21 August 2021;·Affidavit of Mr F Blandford filed 8 September 2021;·Affidavit of Mr V filed 21 August 2021; and·Financial statement of Ms Blandford filed 8 September 2021. The respondent as well as Mr F Blandford and Mr V were cross-examined by the applicant’s counsel.The law Prior to making any order for property settlement I must be satisfied that it is just and equitable to make an order adjusting the property interests of the parties.[4][4] Stanford & Stanford.

Decision

Reasons for decision

Taking into account:·the parties’ ages, state of health, income, property and financial resources;·their capacity for appropriate gainful employment in which they are both currently engaged;·their ability to each support themselves and the children they have a duty to maintain;·being satisfied that they and the children are enjoying a standard that in all of the circumstances of this case is reasonable; and·that the applicant is paying to the respondent child support, and that he has done so and will continue to do so when and so long as a child support assessment is in place,I am not satisfied that any adjustment to my findings as to contribution are justified by any of the factors referred to in s 90SF(3).CONCLUSION I have determined that the parties’ net assets should be divided as to 30 per cent to the applicant and 70 per cent to the respondent. The net assets available for distribution including superannuation total $625,026.61 (rounded to $625,026).[10] Thirty per cent of that amount equals $187,508. Seventy per cent of that amount is $437,518.[10] Paragraph 176 of these reasons for judgment. I have determined that the parties’ net non-superannuation assets total $284,503.[11][11] Paragraph 168 of these reasons for judgment. A 70/30 per cent division in favour of the respondent would result in her retaining net non‑superannuation assets in the amount of $199,152, with the applicant to retain net non‑superannuation assets of $85,351. In accordance with the schedule contained in paragraph 159 of these reasons the applicant has retained gross non-superannuation assets in the sum of $26,872. He also retains the only liability to be taken into account, being school fees in the sum of $2,196, reducing the value of his non-superannuation assets to a net figure of $24,676. The respondent currently retains in her possession or control net assets to the value of $259,823, including the net proceeds remaining from the sale of the Suburb C property standing to her credit in her solicitor’s trust account. To effect the 70/30 division of net non-superannuation assets as I have determined will require a payment by the respondent to the applicant in the sum of $60,671. A division of the parties’ superannuation entitlements such that the respondent retains 70 per cent of the superannuation pool and the applicant 30 per cent will require a split from the respondent’s superannuation to the applicant with a base amount of $9,247. Such a split will result in the respondent’s superannuation entitlements reducing to $238,367 and the applicant’s increasing to $102.157. Taking all of those matters into account I am satisfied that overall my determination will result in a just and equitable division of the parties’ assets taking into account the value of the asset pool, the contributions made by each party as discussed in detail herein and in circumstances where I have found that there is no basis for any further adjustment pursuant to the provisions of s 90SF(3) of the Act.

Ratio Decidendi

Legal Principle Established

Without the funds from the respondent’s injuries and the assistance of Mr F Blandford (in respect of which I am satisfied he has been recompensed to his satisfaction), the parties would have accumulated nothing by way of assets after their relationship of eighteen and a half years.Post-separation contributions Subsequent to the parties’ separation in January 2016 the applicant sought orders from the Court with respect to parenting issues. An order was made by consent on 21 June 2016 providing that the parties have equal shared parental responsibility for X and Y and that the children live with each of them on a week-about basis. The children’s time with the respondent was conditional upon her:·Engaging with and keeping engaged with her treating psychiatrist and complying with all treatment and medication regimes as may be recommended by that treating psychiatrist; and·Undertaking one supervised urinalysis drug screen test each month and producing all results to that test that are clear of any illicit drugs or non-prescribed medication. The respondent was unrepresented at that hearing and had not filed responding documents. On 19 January 2018, almost two years later, the applicant filed a further parenting application supported by an affidavit in which he alleged that the respondent was not complying with the terms of the existing parenting order, and deposing to the state of the respondent’s mental health at that time. On the first return date being 28 February 2018 the 2016 parenting orders were suspended and replaced with an order that X and Y live with the applicant until further order, with the respondent to forthwith attend upon a psychiatrist and otherwise comply with the conditions of the original parenting order. The respondent filed a Response and affidavit in support on 17 May 2018 and on 4 September 2018 a further order was made providing that from 1 October 2018 X and Y live with the applicant from the conclusion of school Monday until the commencement of school the following Monday and with the respondent at all other times. In the respondent’s trial affidavit she deposed to the significant assistance provided to her by her parents whilst the children were in her care following upon separation. It is clear that they have continued to provide significant care for the children post-separation. Parenting issues were finalised by way of order on 24 September 2020, which order provides for X and Y to live with the respondent and spend time with the applicant from Friday after school to the commencement of school the following Wednesday, being five nights of out each fourteen night period. I am satisfied that the applicant has made a significant contribution post-separation by way of his parenting role over a period of some five and a half years. I am satisfied that the parties’ contributions should be assessed as 70 per cent in favour of the respondent and 30 per cent in favour of the applicant for the following reasons:·The respondent’s overwhelming financial contribution to the acquisition of the parties only substantial asset;·The respondent’s superior contribution with respect to homemaking and parenting including by her contribution of her wages towards the support of the family generally;·The applicant’s contribution by way of homemaking and parenting including by his contribution of his wages towards the support of the family generally;·The contribution made on behalf of the respondent by her parents both during the period of cohabitation and post-separation with respect to the physical care of all of the parties’ children and the meeting of expenses for the children;·The respondent’s contributions being made more arduous than necessary as a result of verbal and physical abuse directed towards her on a regular basis throughout the period of the relationship.