GEORGE & GEORGE

[2015] FamCA 740

FAMILY COURT OF AUSTRALIA

GEORGE & GEORGE [2015] FamCA 740

FAMILY LAW – PROPERTY – Application by husband for a declaration by the Court that he retain the property in his ownership and possession and the wife retain property in her ownership and possession – Orders made in circumstances where Court is satisfied of a just and equitable division of property

Family Law Act 1975 (Cth)

Stanford v Stanford [2012] HCA 52, (2012) 293 ALR 70

Bevan & Bevan (2013) FLC 93-545
Chapman and Chapman [2014] FamCAFC 91

APPLICANT: Mr George

RESPONDENT: Ms George

FILE NUMBER: MLC 7968 of 2013

DATE DELIVERED: 12 May 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Benjamin J

HEARING DATE: 12 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. As against Ms George (‘the wife’) Mr George (‘the husband’) shall retain a legal and equitable interest in such property in his name or control including bank accounts, superannuation, chattels and the like and being such property as is disclosed in his financial statement filed 17 September 2013.

2. As against the husband the wife shall have sole interest in such property in her name or control including bank accounts, superannuation, chattels and the like and being such property as is disclosed in her financial statement filed 18 October 2013.

3. The court declares this is a final order pursuant to s 81 of the Family Law Act.

4. All outstanding applications be dismissed.

5. Leave be given to the wife to apply to the court by way of an application in a case and affidavit to have the matter restored, to be determined on the merits, provided such application is made within six (6) weeks from the date of this order.

IT IS DIRECTED

1. A registrar of this court forward a sealed copy of these orders to the wife care of … and by email to …

2. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7968 of 2013

Mr George

Applicant

And

Ms George

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter was listed before Bennett J on 11 May and was transferred to me.  These were proceedings between Mr George (‘the husband’) and Ms George (‘the wife’) which were commenced in the Federal Circuit Court by an initiating application filed 17 September 2013.  In that application, which was commenced by the husband, he sought a declaration that he retains property in his ownership and his possession, and the wife retains property in her ownership and possession. 

2. The proceedings were caught up in the Federal Circuit Court for some time, as there was an argument raised by the wife as to property owned by the husband’s mother and a trust or a company operated by his parents.  The proceedings were transferred to the Family Court in late 2014 and came before Johns J earlier this year.  At that time the parties were represented and the husband’s mother and her company were also involved.  Consent orders were made excluding them from the proceedings and leaving only the property proceedings as between the husband and the wife outstanding.

3. Since that time the wife’s solicitors have ceased to act for her and the wife has filed a notice of discontinuance of her application.  Therefore, the only application left in the Court is that of the husband.  The wife has not appeared today and it appears from the husband that she no longer has interest in the proceedings, although it is not absolutely clear that she had notice of the proceeding yesterday or today.  As a result, whatever orders I will make I will give the wife leave to apply to come back to the Court to have those orders set aside and enable the matter to be heard quickly on the merits if that is what she wants to do.

4. The material before me in determining this matter consists of five documents.  That is, the husband’s initiating application filed 17 September 2013, his affidavit filed the same day, and his statement of financial circumstances filed the same day.  He also relies upon the wife’s statement of financial circumstances filed 18 October 2013. 

5. The husband seeks orders, as I said, that he retains his property and the wife retains hers.  To put that in context, in the wife’s financial statement, she discloses that she has property to the value of some $1.1 million, superannuation of about $137,000, and liabilities of about $390,000, making a total non-superannuation property pool of about 700-odd thousand dollars and superannuation, as I said, of about $137,000.  The husband has property totalling some $265,000 and superannuation of some $42,000, and liabilities of some seven to eight thousand dollars.  The husband says he wants that status quo to remain in place. 

6. The husband says he was born in 1968, and is now 47.  The wife was born in the same year and she is the same age.  They commenced cohabitation in 2002.  They married in 2003, and they separated in December 2004.  There are two children of the marriage: B, who is currently aged 11 and will turn 12 in August of this year, and C, who is currently aged nine and is 10 in October this year.  The children live with the wife and spend time with the husband.

7. The husband sets out in his affidavit a history of contributions to property and the list of property to which these proceedings relate. 

THE LAW

1. The law regarding the treatment of property has been clarified following the High Court decision in Stanford v Stanford.[1]  Prior to that decision the preferred approach was the four step process as reflected by the Full Court in cases such as Hickey v Hickey and the Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.

   [1] [2012] HCA 52, (2012) 293 ALR 70.

2. Following Stanford v Stanford (supra) the approach is that a Court must firstly be satisfied that before making any order it is “just and equitable”[2] to do so. Then consider what orders, if any, should be made having regard to s 79(4) of the Family Law Act 1975 (Cth) (‘the Act’).

   [2] Section 79(2).

3. This approach was later adopted in Bevan & Bevan,[3] where Bryant CJ and Thackray J noted that the Stanford and Stanford (supra) decision:-

   … serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so. [4]

   [3] (2013) FLC 93-545.

   [4] Ibid at para 65.

4. In Chapman and Chapman[5] the Full Court considered the independence of ss 79(2) and 79(4) and confirmed that Bevan v Bevan correctly stated the law in relation to the Courts consideration of s 79(2), whether the making of an order is just and equitable. At paragraph 19 of their joint reasons Strickland and Murphy JJ said:-

   Section 79 demands a consideration, separately, of all of its requirements without conflation.

   [5] [2014] FamCAFC 91.

5. However, their Honours disagreed with any intention of plurality in Bevan v Bevan, in that the Court must consider the matters in s 79(4) when addressing s 79(2) of the Act in terms of what order is to be made. To clarify, Bryant CJ said in a separate judgment:-

   Whatever differences may exist as to the meaning of [84] and [85] of Bevan, I am in agreement with Strickland and Murphy JJ that it is not a requirement to take account of the matters in s 79(4) when considering the question of whether it is just and equitable to make any order under s 79(2). But as long as they are seen as separate and not conflated, the factors in s 79(4) have the potential to inform the decision under s 79(2) …

6. Accordingly, the approach I will adopt, when determining a division of property, is:-

   (a)Identify, in the context of ordinary legal principles, the existing legal and equitable interest of the parties in the property;

   (b)Consider whether in the circumstances of the parties it is appropriate and just and equitable for any order to be made having regard to s 79 of the Act; and

   (c)To consider and take into account any contributions and other matters, as are relevant, having regard to the provisions of s 79(4) of the Act and make such order as is appropriate. It is the function of the court to consider those relevant factors in the context of what is appropriate in all of the circumstances, provided always that it is just and equitable to do so.

7. As to the legal and equitable interest of the property of the parties, I note that they are contained in the financial statements to which I have alluded earlier.  There seems to be no issue about the value of that property, although no doubt the real estate in the name of the wife may have increased over that last two years, although I have not taken that into account.

8. In terms of contribution, the parties were in a relationship for about 10 years and their assets have been accumulating for a period of two to three years since that time.  The affidavit evidence shows that each has made contributions in their own ways.  The wife’s contributions at the commencement of the relationship were much greater than that of the husband, given she had the interest in a Suburb D home unit which was sold in 2006 for $350,000.  The husband believes the wife has property in Greece from her father’s estate, although he has not included that in the list of properties which he seeks adjustment of property.

9. At the commencement of the relationship, the husband owned a property in Suburb E and that property was sold by him, and he received when that was sold about $180,000.  He then talks about a farm and his various aspects of employment.

10. There is no evidence as to the good health or otherwise of the parties.  There is evidence that the husband is still employed.  The wife’s financial statement discloses that she is not employed, although she has significant assets and she receives some very modest child support.

11. Given all of those circumstances, I am satisfied that the adjustment of property sought by the husband is, in all of the circumstances, just and equitable.  Noting, however, that the wife at this stage has had the ability to respond but has chosen to discontinue in these proceedings.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 12 May 2015.

Associate:     G Doyle

Date:              12 May 2015