FEDERAL CIRCUIT COURT OF AUSTRALIA
| FLECK & FLECK | [2014] FCCA 2595 |
| Catchwords: FAMILY LAW – Property – 15 year cohabitation – Wife not working – two Children in Wife’s majority care – debt to Wife’s father in dispute – two major assets are the former matrimonial home and the Husband’s superannuation interest – consideration of the “mix” of assets with which each party will be left as a result of proposed orders – disparity in income – Husband’s partner not available to be cross-examined – Jones v Dunkel inference – spouse maintenance. |
| Legislation: Family Law Act 1975, ss.72, 74, 75, 79 |
| Bevan & Bevan (1995) FLC 92-600 In the Marriage of Burke (1981) FLC 91-055 In the Marriage of Prince [1984] FLC 91-501 |
| Applicant: | MS FLECK |
| Respondent: | MR FLECK |
| File Number: | SYC 1432 of 2013 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 16-18 June 2014, 23-24, 28-29 July 2014 |
| Date of Last Submission: | 12 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 13 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Hodgson and Mr N Ford |
| Solicitors for the Applicant: | Prime Lawyers |
| Counsel for the Respondent: | Mr P. Batey |
| Solicitors for the Respondent: | Dimocks Family Lawyers |
THE COURT ORDERS THAT:
By no later than the end of January 2015, the Husband and Wife do all things necessary to effect a sale of the property known as and situate at Property T being the whole of the land and improvements contained in Folio Identifier Lot (omitted) of Section (omitted) in Deposited Plan (omitted), by way of auction with a real estate agent agreed between the parties or failing agreement by 15 January 2015, by an agent appointed by the Real Estate Institute of New South Wales at a price agreed between the parties and failing such agreement at a price to be determined by the Australian Property Institute of New South Wales or his nominee and the parties share equally any fees involved.
The parties instruct such solicitor as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement by 15 January 2015 shall instruct such solicitor as may be appointed by the President of the Law Society of NSW, the costs of an incidental…
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- Fleck and Fleck [2014] FCCA 2595
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- [2014] FCCA 2595
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CaseChat Overview and Summary
The court's reasoning focused on achieving a just and equitable distribution of the parties' financial resources. Judge Sexton considered the contributions made by each party, including the husband's payments towards the mortgage and his expenses related to the children, as well as the wife's sole responsibility for the children's day-to-day care for a significant period and her maintenance of the former matrimonial home. The court also took into account the husband's expenditure on holidays and entertainment since separation, finding that he had spent a considerable amount on such activities.
The court ordered the sale of the former matrimonial home by auction, with the proceeds to be applied first to sale costs, then to discharge the mortgage, followed by specific payments to Mr J, and then a division of the remaining balance between the wife and husband, with the wife receiving 74% of the balance and a further fixed sum, before the husband received the final balance. The husband was declared the exclusive owner of certain assets in his possession, including a motor vehicle and his superannuation interests, while the wife was declared the exclusive owner of assets in her possession, including her superannuation interests. Each party was to be responsible for debts in their own name. Finally, the husband was ordered to pay periodic spousal maintenance to the wife for a period of six months.
Orders
Orders of the court
1.
By no later than the end of January 2015, the Husband and Wife do all things necessary to effect a sale of the property known as and situate at Property T being the whole of the land and improvements contained in Folio Identifier Lot (omitted) of Section (omitted) in Deposited Plan (omitted), by way of auction with a real estate agent agreed between the parties or failing agreement by 15 January 2015, by an agent appointed by the Real Estate Institute of New South Wales at a price agreed between the parties and failing such agreement at a price to be determined by the Australian Property Institute of New South Wales or his nominee and the parties share equally any fees involved.
2.
The parties instruct such solicitor as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement by 15 January 2015 shall instruct such solicitor as may be appointed by the President of the Law Society of NSW, the costs of an incidental to such appointment to be borne equally by the parties as and when they fall due.
3.
On settlement of the sale of the (omitted) property, the proceeds of sale be paid in the following manner and priority:
(a) in payment of all costs and expenses of sale including legal costs and disbursements, agents commission and auction expenses;
(b) in payment of the amounts required to discharge the loan secured by way of mortgage to the (omitted) Bank being registered mortgage (omitted).
(c) in payment of any adjustments in accordance with usual conveyancing practice;
(d) in payment of $150,000 to Mr J;
(e) in payment of $45,970 to Mr J;
(f) in payment to the Wife of 74% of the balance then remaining;
(g) in payment to the Wife of $165,314; and
(h) in payment to the Husband of the balance.
4.
Until 31 January 2015, the Husband continue to meet the mortgage repayments on the (omitted) property and the Wife otherwise meet the outgoings on that property.
5.
There be no alteration to each party's entitlement to superannuation.
6.
The Husband be declared the owner, to the exclusion of the Wife, of all items of property in his possession or under his control including but not limited to the Volkswagen Passat motor vehicle registration (omitted) and his interest in the (omitted) Superannuation Fund.
7.
The Wife be declared the owner, to the exclusion of the Husband, of all items of property in her possession or under her control including but not limited to her interests in (omitted) and (omitted) Superannuation Funds.
8.
Except as otherwise provided, each party be responsible for debts held in that party's name, and indemnify and keep indemnified the other in relation to those debts.
Spouse maintenance
9.
The Husband pay to the Wife by way of periodic spousal maintenance the sum of $600 per week for a period of 6 calendar months, first payment 7 days after the Husband's obligation to meet the mortgage repayments ceases.
10.
The maintenance payments referred to in Order (9) be payable by the Husband fortnightly by way of deposit to an account nominated by the Wife by 15 January 2015.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Expenses paid by Husband since separation. The Husband paid the mortgage instalments on the former matrimonial home until August 2012 (a period of 5 months from separation) and then stopped. On 22 May 2013, the Husband made a repayment of $4,490 and on 1 August 2013, a payment of $5,000. On 15 October 2013, interim orders were made for the Husband to pay $923 a week ($4,000 a month) towards the mortgage. Between 17 October 2013 and 19 May 2014, the Husband paid $26,664.97 in mortgage repayments, just under the amount ordered. At the time of hearing, the mortgage was in arrears as the Husband had not made payments for approximately 3 months. The current repayment required is $4,077 a month. While the Husband included a figure of $983 a week for his mortgage expense in his Financial Statement sworn on 13 June 2014, it was not being paid. I find that the Husband has met approximately half the mortgage repayments due between separation and hearing. Though the Husband deposed to a payment of $600 a week by way of child support, I prefer the Wife’s evidence that the amount actually paid is $590 a week. The Husband has paid for the costs of supervision of the Children’s time with him which have been considerable. The Husband was cross examined about his expenses since May 2012. He acknowledged going on a number of holidays, though could not recall them all.In cross examination, the Husband accepted that in July 2012, he went to Melbourne with Ms K; in September 2012, (omitted), in September 2010 the (omitted), in October 2012 (omitted), Queensland, in December 2012 the (omitted), in January 2013 Queensland, in February 2013 (omitted), March 2013, Queensland, March to (country omitted) (he says work trip), May/June 2013 (country omitted), May 2013 the (omitted), July 2013 to Canberra. In the last 12 months, the Husband said he has been to (country omitted) and to Canberra, but could not recall whether he had other trips away. I accept the Wife’s counsel’s contention that the Husband spent at least $22,667 on trips away between July 2012 and July 2013. A bundle of (omitted) Bank statements and Amex credit card statements within the period March 2012 to July 2014 were tendered to verify his expenses on those trips.[42] These statements also disclose the Husband’s regular expenditure on entertainment including bars and restaurants. [42] Exhibits 18 and 19 The Wife has lived in the former matrimonial home, while the Husband has rented alternative accommodation. The Wife has maintained the home. From May 2012, when the Husband moved out of the Property T property, for a period of 12 months, the Children did not see the Husband at all. The Wife therefore took the whole of the responsibility for the Children’s day to day care for that period. Apart from the usual day to day domestic tasks including washing, ironing, cooking, shopping, the Wife was solely responsible for preparing the children for school, taking them, collecting them, attending school assemblies, reading groups, 'class mum' duties and assisting with homework. The Wife described the additional work she does with Y each day to assist Y with her particular learning challenges. The school identifies her specific difficulty in the area of literacy.[43][43] Exhibit 5