Goyle & Goldstein
[2011] FMCAfam 390
•4 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GOYLE & GOLDSTEIN | [2011] FMCAfam 390 |
| FAMILY LAW – Property – de facto property application – where respondent failed to comply with directions for final hearing – contributions – s.90SF(3) considerations – adjustment in favour of the respondent. FAMILY LAW – Costs – application for costs – whether respondent wholly unsuccessful – whether an amount should be held back to cover a prospective costs order. |
| Family Law Act 1975 (Cth), ss.4AA, 79, 90SB, 90SF, 90SK, 90SM, 106A, 117 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) |
| In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355 |
| Applicant: | MS GOYLE |
| Respondent: | MR GOLDSTEIN |
| File Number: | CAC 1761 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 April 2011 |
| Date of Last Submission: | 28 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Kennedy & Cooke Lawyers |
| The Respondent: | In person |
ORDERS
Within fourteen (14) days of the date of these Orders, the applicant and the respondent are to join in and do all things necessary including the signing of all necessary documents so as to cause the property known as [Property L] [Q] in the State of New South Wales to be sold.
For the purposes of Order (1) above:
(a)The parties must list the said property at [Q] for sale by private treaty within fourteen (14) days;
(b)The applicant is to determine with which real estate agent or agents the property at [Q] is to be listed;
(c)The applicant is to set the listing price for the said property at [Q];
(d)In the event that the property at [Q] has not been sold on or before a date two (2) months after the date of these Orders then the parties are to procure a sale by public auction upon the following terms:
(i)The auctioneer is to be appointed by the applicant;
(ii)The auction is to take place within five (5) weeks after the deadline for the sale of the property by private treaty; and
(iii)The reserve price is to be determined by the auctioneer in consultation with the parties.
Upon the sale of the property at [Q], the proceeds of sale are to be applied in the following order of priority:
(a)All outstanding legal costs owed by the parties including legal costs on the sale;
(b)All real estate agent commissions and fees relating to the sale;
(c)All outstanding council and water rates and maintenance levies associated with the property;
(d)The implementation of a discharge of the mortgage encumbering the property;
(e)As to 50% of the balance thereof to the applicant; and
(f)The balance thereof to the respondent.
Pending the sale of the property, the respondent is to be responsible for the payment of:
(a)Any mortgage payments charged to the property as and when they become due for payment on a periodic basis; and
(b)All rates, charges, maintenance costs and any other outgoings in relation to the property.
In the event that:
(a)The respondent fails to make the required payments referred to in Order (4) above; and
(b)At the time of the completion of the sale of the property there are still amounts outstanding in relation to Order (4), then
The parties shall adjust the payments referred to in Orders (3)(e) and (f) by deducting from the amount of the net proceeds of sale payable to the respondent an amount equal to the amount unpaid by him as stated in Order (4) and that amount shall be paid to the applicant by way of an adjustment.
The respondent must transfer to the applicant all of his right title and interest in the 1952 Chevrolet utility motor vehicle and the applicant shall be declared the sole owner of the said vehicle.
The applicant is to transfer to the respondent all of her right title and interest in the 1966 Chevrolet Impala motor vehicle and the respondent shall be declared the sole owner of the said vehicle.
Within fourteen (14) days of the date of these Orders the applicant must sign all documents and do all things necessary to resign from any office that she holds in the Company known as [G] Pty Ltd without any payment or remuneration and transfer any shares that she holds in [G] Pty Ltd to the respondent or his nominee.
Subject to the applicant’s compliance with Order (8) above the respondent must indemnify the applicant in relation to all costs, expenses or claims associated with the company [G] Pty Ltd or any business conducted by it.
Each party will otherwise retain as individual owners all assets as well as any superannuation entitlements in their respective names and possession.
The respondent is to be solely responsible and indemnify the applicant for the loan from the ANZ Bank and for any loan secured on the Honda 350 quad bike.
The parties are to be solely responsible and indemnify the other for all liabilities in their individual names.
As provided by Section 106A of the Family Law Act 1975 if either party refuses or neglects to comply with any order or direction to execute a deed or instrument necessary to give effect to any of these orders then a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is appointed to execute the deed or instrument in the name of the party to whom the order was made or the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.
IT IS NOTED that publication of this judgment under the pseudonym Goyle & Goldstein is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
CAC 1761 of 2009
| MS GOYLE |
Applicant
And
| MR GOLDSTEIN |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for property orders. The applicant and the respondent lived in a de facto relationship for approximately seven years. The applicant, Ms Goyle, seeks orders for the sale of the parties’ former home with the net proceeds being divided equally between the parties.
Procedural History
The applicant filed her application for property orders on 27th October 2009 in which she sought some interim orders and a final order that “the property of the relationship be divided equally between the parties”. One of those interim orders sought was that the parties should do all acts and things and sign all such documents as may be required to cause the property at [Property L], [Q] in the State of New South Wales to be sold.
The first court date for the application was 7th December 2009. The applicant’s solicitor appeared, but there was no appearance by or on behalf of the respondent. Brewster FM directed that the respondent should file and serve his response and supporting documents within 14 days and that they should attend a conciliation conference before a Registrar on 25th January 2010.
The respondent filed a response, financial statement and an affidavit on 21st December 2009. The respondent sought orders that:
a)The applicant should transfer to the respondent all of her interest in properties at [Property L] [Q] and [Property B] [P], New South Wales;
b)The applicant and the respondent should discharge the mortgage over the [Q] and [P] properties to release the applicant from any liability in respect of the mortgages;
c)The applicant should be declared the sole owner of various chattels, including a 1952 Chevrolet motor vehicle;
d)The applicant should resign from any office she held in the company [G] Pty Ltd;
e)The applicant should return a Jeep Commander motor vehicle to the respondent within 14 days; and
f)The parties would otherwise be solely entitled to all other property in their possession.
The applicant and the respondent attended the conference with their respective solicitors and agreement was reached about some issues.
A further conference took place on 24th May 2010. No final agreement was reached and the application was placed in a call-over list.
On 3rd August 2010 Baumann FM ordered that a court expert be appointed to determine the current market value of the [Q] property.
On 6th August 2010 Baumann FM listed the application for final hearing on 3rd December 2010. His Honour directed that:
a)The parties should file and serve their affidavits and updated financial statements by 4.00 pm on 19th November 2010; and
b)Each party should file and serve a case outline by 4.00 pm on 26th November 2010.
His Honour noted that the parties had reached agreement about the value of the [Q] property. He also directed:
6. That the parties cannot rely on any material filed after 19th November 2010 without the leave of the Court.
On 10th September 2010 the application was adjourned for further direction on 6th October 2010.
On 14th September 2010 the respondent’s solicitor filed a Notice of Ceasing to Act.
There was no appearance by or on behalf of the respondent on 6th October 2010, or on the adjourned date, 26th October 2010, when neither party appeared. Brewster FM ordered that the matter would continue to final hearing on 3rd December 2010 and the filing directions made on 6th August 2010 would continue.
The applicant filed an affidavit and an amended financial statement on 19th November 2010.
The applicant’s counsel electronically filed a case summary document on 2nd December 2010, outside the time provided by the direction of 6th August 2010.
As at the morning of the hearing the respondent had filed no further documents. Apart from the Notice of Ceasing to Act filed by his former solicitor, the respondent had not filed any documents since 21st December 2009.
The respondent attended Court unrepresented on the day of the hearing.
Background
The applicant was born in 1979. She is 31 years old.
The respondent was born in 1975. He is 35 years old.
The parties have never married, but they started living together in May 2002. They separated on 5th September 2009, when the applicant left the home and moved to her mother’s home.
There were no children of the relationship. The respondent has two children from his former marriage.
The applicant worked as a [occupation omitted] from 1999. She purchased a 1985 Holden Commodore in 2001.
In September 2003 the applicant commenced working for the respondent’s mother’s company, [G] Pty Limited.
The applicant and the respondent purchased a house at [Property L] [Q] in October 2003 and commenced living there from December 2003.
The applicant negotiated with the respondent’s former wife about the two children spending time with the respondent. In 2008 the respondent commenced proceedings in this Court, seeking that the children should live with him. Orders were made by consent that the children would live with their maternal grandparents and spend time with the respondent. Later that year the children commenced living with the applicant and the respondent.
In December 2004 the applicant and the respondent acquired the shares in the company [G] Pty Limited from the respondent’s mother.
The parties created a self-managed superannuation fund called [W] Superannuation Fund in early 2008. They rolled over their existing superannuation holdings into the new fund.
Later that same year, [W] Superannuation Fund contributed the sum of $52,000.00 to the [C] Trust. That trust purchased shares in [R] Pty Limited for $100,000.00.
The parties separated on 5th September 2009. The applicant lived with her mother for a few months, and then lived at [T] in Victoria for three months from December 2009. She then lived with her sister in Canberra until November 2010.
The parties negotiated a partial property settlement in July 2010. The applicant returned the Jeep Commander to the respondent in return for a payment of $9,500.00.
The applicant has recently moved to [E], in Queensland. She has obtained employment with a [company omitted] in [B].
The respondent continues to reside in the [Q] property.
Evidence
The applicant relies on her affidavit sworn on 17th November 2010 and her amended financial statement sworn the same day. The respondent’s evidence is contained in his affidavit sworn on 23rd November 2009 and his financial statement sworn that same day. Those documents were not filed until 21st December 2009.
The applicant tendered a balance sheet of the company [G] Pty Ltd for the financial year ended 30th June 2009 showing:
a)A before tax profit of $49,054.92;
b)Total current assets of $37,773.67;
c)Net assets of $88,447.88.
The respondent tendered a document entitled “Monies Outstanding” showing a total of $235,410.83 owing to various creditors, including the Australian Taxation Office in the sum of $106, 941.27. He also tendered a handwritten schedule showing the estimated value of four motor vehicles:
a)Isuzu truck $29,000.00
b)Isuzu [N] van $28,000.00
c)Isuzu [N] van $29,000.00
d)Jeep $41,000.00.
Neither the applicant nor the respondent was required for cross-examination.
Submissions
Mr Jackson of counsel, who appeared for the applicant, submitted that the net asset pool amounted to $285,200.00. The company [G] Pty Ltd was worth $88,000.00 in June 2009 but the applicant now says it has a value of zero.
As to the Chevrolet Impala motor car, the applicant would accept the respondent’s estimated value of $12,000.00. The car is in the possession of the respondent. The Chevrolet utility had an estimated value of $5,000.00.
It was submitted that the relationship lasted for seven years and the applicant was slightly “in front” as far as contributions were concerned. Counsel for the applicant submitted that the applicant sought orders for the sale of the couple’s former home and an equal division of the proceeds of sale.
It was also submitted that this was an appropriate matter for an order for costs in favour of the applicant, as the respondent had not shown any reason why he would be other than wholly unsuccessful. Mr Jackson submitted that the sum of $30,000.00 should be set aside to cover a future costs order.
On the question of joint liabilities, there was a loan from the ANZ bank which was charged to assets that the respondent would retain, being a Honda 350 motor cycle. There was also a loan from the ANZ Bank tied to the Chevrolet Impala (described by the respondent as “My dream car”).
Mr Jackson submitted that it was vital to make the proposed order that the respondent re-finance any indebtedness of the company [G] Pty Ltd and indemnify the applicant in relation to the indebtedness. She would have to resign from any directorship or other position that she held with the company and would transfer to the respondent any shares in the company in her name.
The proposed arrangement would then provide for an approximately equal split between the parties.
The respondent submitted that the Chevrolet Impala was charged to the ANZ Bank as security for a loan which was originally $28,000.00 but at the time of the hearing stood at $23,897.00. He estimated the Impala as being worth $12,000.00, a figure which the applicant was happy to accept.
The respondent also said that he had in his possession a Honda 350 four wheel quad bike. There was a caveat on the house from the bank. His mother is the guarantor on the loan.
The respondent told the Court that his two children from his former marriage were still living with him.
The respondent also said that the applicant had already received some assets from the relationship. She had already sold the horse “[A]” for $1500.00 and retained the proceeds. He produced a handwritten list of items which he said the applicant had already received. The list included the horse “[A]” with a sale price of $2500.00 beside it. The other items were:
a)A horse worth $8500.00;
b)A horse worth $900.00;
c)A horse worth $2500.00;
d)A new horse float worth $28,000.00 which the applicant sold for $23,000.00;
e)Another horse float worth $2,500.00;
f)Saddles and bridles worth $5,000.00; and
g)A [breed omitted] dog with a value of $2,500.00.
The respondent said that the applicant could have the Chevrolet utility but he wanted to retain the Chevrolet Impala. He described it as his “baby” and said that he would not part with it. He went on to say that he wanted to keep the business and was worried about the bills. He said that he owed his former solicitor about $7,500.00 for legal costs for these proceedings.
In reply, Mr Jackson referred the Court to the Response filed by the respondent on 21st December 2009. Orders 5 and 6 sought in that document require the applicant to resign from any office that she holds with the company [G] Pty Ltd and require the respondent to indemnify the applicant in relation to any costs, expenses or claims associated with the company. The applicant is prepared to consent to such orders being made.
Relevant Law
In order for the Court to have jurisdiction, the parties must establish:
a)that they were in a de facto relationship for a period of at least two years;
b)that they separated after 1st March 2009; and
c)that either or both of them were ordinarily resident within a participating jurisdiction.
The definition of a de facto relationship can be found in s 4AA(1) of the Family Law Act 1975. The subsection provides that:
A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
The requirement to show that the de facto relationship was in force for at least two years or that some other qualifying requirement is met can be found in s 90SB of the Act, which provides:
A court may make an order under section 90SF, 90SG or 90SM, or a declaration under section 90SL only if the court is satisfied:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
The jurisdiction to deal with financial matters relating to de facto relationships was given to Courts exercising jurisdiction under the Family Law Act by the Family Law (De Facto Financial Matters and Other Measures) Act 2008. That part of the legislation dealing with adjustment of property interests came into force on 1st March 2009.
There is a geographical requirement, set out in subsections 90SK(1) and (1A) of the Act:
A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:
(a) that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time); and
(b) that either:
(i) both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or
(ii) the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
in one or more States or Territories that are participating jurisdictions at the application time:
or that the alternative condition in subsection (1A) is met.
(1A) The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.
The States of New South Wales, Queensland, Tasmania and Victoria have been participating jurisdictions since 1st March 2009. South Australia has been a participating jurisdiction since 1st July 2010.
The power to make orders in relation to the property of parties to a de facto relationship can be found in s 90SM of the Act. The powers given to the Court under s 90SM are similar to those given to the Court under s 79, which applies to the property of parties to a marriage.
The preferred approach to be taken by a court to determine matters involving alteration of the parties’ interests in property under s. 79 of the Family Law Act 1975 has been authoritatively set out by the Full Court of the Family Court in its decision In the Marriage of Hickey:[1]
· First, the court makes findings as to the identity and values of the parties’ property, liabilities and financial resources at the date of the hearing;
· Second, the parties’ contributions are identified and assessed within the meaning of ss 79(4)(a), (b) and (c) and entitlements are expressed as a percentage of the net value of the parties’ property;
· Third, other factors as listed to in s 79(4)(d), (e) [which refers to the matters in s 75(2) so far as they are relevant, (f) and (g) are assessed and any adjustment is made to the contribution based entitlements of the parties; and
· Fourth, the court should consider the effects of the findings and determinations and resolve what order is just and equitable in all the circumstances of the case.[2]
[1] [2003] FamCA 395; (2003) 30 Fam LR 355
[2] Per Nicholson CJ, Ellis and O’Ryan JJ at [39]
In my view, because of the similarity between sections 79 and 90SM, the decision in Hickey is equally applicable in applications for alteration of property interests under s 90SM.
Jurisdiction
The circumstances relating to jurisdiction are set out in the applicant’s affidavit sworn on 17th November 2010. She deposes that:
a)The parties commenced living together in May 2002 and separated on 5th September 2009[3];
b)The parties lived at [Property L], [Q], New South Wales;[4] and
c)The applicant was responsible for most of the work around the house, including cooking, cleaning, working in the garden, shopping and managing the household finances;[5] and
d)She assisted the respondent in the care of his two children from his former marriage.[6]
[3] Affidavit of Ms Goyle 17.11.2010 at paragraphs [3] and [4]
[4] Ibid at [9]
[5] Ibid at [20] and [21]
[6] Ibid at [22]-[24]
The respondent, in his brief (and only) affidavit filed in these proceedings dated 23rd November 2009 deposes that:
The Applicant and I commenced a relationship in about April 2002 and began residing together in about May 2002.[7]
[7] Affidavit of Mr Goldstein 23.11.2009 at paragraph [3]
The respondent does not challenge any of the applicant’s assertions about the nature of the relationship.
New South Wales is a participating jurisdiction for the purposes of section 90SK.
I find that the parties lived in a de facto relationship for at least two years, they separated after 1st March 2009 and they were ordinarily resident in New South Wales, a participating jurisdiction.
I am satisfied that the Court has jurisdiction to hear and determine the application.
The Parties’ Property
The parties’ current financial circumstances are conveniently set out in tabular form in the Case Outline document prepared by counsel for the applicant, Mr Jackson:
Property [Property L] [Q] (joint) $550,000.00
[G] Pty Limited (joint) NIL
Acco truck (respondent) $4000.00
ANZ Bank (respondent) $1000.00
Chevrolet SS Impala (respondent) $12,000.00
Subaru speedway car (respondent) $2000.00
Ride-on lawn mower (respondent) $3500.00
Honda 350 motor cycle (respondent) $5000.00
Honda CR 500 motor cycle (respondent) $ 500.00
Contents of [Q] house (respondent) $10,000.00
1995 Holden Commodore (applicant) $4000.00
Contents of home (applicant) $1000.00
Partial property distribution (applicant) $9500.00
TOTAL NON-SUPERANNUATION ASSETS $602,500.00
Superannuation
[W] Superannuation (respondent) $52,000.00
[W] Superannuation (applicant) $52,000.00
TOTAL SUPERANNUATION $104,000.00
Liabilities
Mortgage [Q] property (joint) $340,000.00
ANZ Loans (joint) $13,300.00
Loan Honda 350 (joint) $5,000.00
Respondent’s tax liability $8,500.00
ANZ Credit Card (respondent) $13,500.00
HSBC Credit Card (respondent) $5,000.00
TOTAL LIABILITIES $385,300.00
NET ASSET POOL $320,700.00
Contributions
The applicant deposes in her affidavit of 17th November 2010 that when she and the respondent started living together, they lived in a double garage that had been converted into a granny flat in the backyard of the premises at [Property L], [Q], which was then owned by the respondent’s mother.
The respondent had been involved in a family law dispute with his former wife over spending time with their two children, a boy who was born in 1997 and a girl who was born in 1999. He owed his former solicitors $30,000.00.
The applicant states:
Mr Goldstein[8] and I worked very hard and managed over the first twelve months of the relationship to reduce the legal bill to $20,000.00. I used my income to assist Mr Goldstein to reduce the bill.[9]
[8] The respondent
[9] Affidavit of Ms Goyle 17.1.2010 at [10]
The applicant also set out in her affidavit how the respondent was rarely able to see his children for about the first 18 months of her relationship with him, “about once every few months.”[10] She deposed that there had been an Apprehended Domestic Violence Order against the respondent and he and his former wife seemed “to be unable to communicate without a huge argument.”[11]
[10] Affidavit of Ms Goyle 17.11.2010 at [14]
[11] Ibid at [16]
The applicant stated that she contacted the respondent’s former wife to make arrangements for the respondent to spend time with his children. She telephoned the former wife and said:
“I can assure you that the children will be safe. I will ensure that they are supervised at all times and that they are returned at the end of contact.”[12]
[12] Ibid at [18]
As a result of her efforts, the respondent was able to spend time with the children more frequently and regularly, including on alternate weekends and during school holidays, from about 2005 onwards.
The applicant deposed that she was responsible for most of the work around the house:
Mr Goldstein very rarely helped with any vacuuming or cleaning. I did all the cooking and cleaning as well as a lot of work around the house in the garden.
I did all the shopping and also managed the household finances.[13]
[13] Ibid at [20]-[21]
From 2005 until the parties separated in 2009, the applicant was primarily responsible for the care of the respondent’s children, washing and bathing them, changing the sheets because the little boy used to wet the bed, and picking up the respondent’s daughter from school, a task she shared with the respondent’s mother.[14]
[14] Ibid at [22]-[24]
The applicant deposed that she assisted the respondent to make application to the Federal Magistrates Court at Canberra in 2008 relating to the children. At Christmas 2008 the children went to live with the applicant and the respondent. They still live with the respondent.
The applicant set out in her affidavit that in September 2003 she accepted an offer from the respondent’s mother to work for the company [G] Pty Limited at approximately $30,000.00 per annum. In December 2004 the applicant and the respondent acquired the shares in the company from the respondent’s mother and they ran the business together.
The business had an [N] franchise and a [workplace omitted]. The applicant deposed that she worked for [G] Pty Limited from December 2004 until September 2009. She stated:
My duties included the following:
· Customer Relations
· Relationship Management with internal and external stakeholders
· [N] Country Service call taker
· Management of staff including creating work flow and conducting performance reviews
· Liaising with smash repairers and Insurance Companies
· Customer Service Management and Maintenance
· Preparation of Tax Invoices
· Accounts payable and receivable
· Collate, file and manage all documents
· Manage and process payroll for all staff
· Management of Human Resources including training, recruitment, Occupational Health and Safety and compliance with [N] policy and procedure
· Debt Recovery
· Rostering of staff
· Marketing and Business Development
· Tow truck operator
· Assisted from time to time in the [workplace omitted][15]
[15] Affidavit of Ms Goyle 17.11.2010 at [43]
The applicant stated that when the respondent wanted to purchase the property at [Property L] from his mother, he was not able to raise sufficient finance to buy the house on the basis of his income alone. She suggested that they should buy it together because she was also earning an income.
The property was purchased in the names of the applicant and respondent as joint tenants for $390,000.00.
The applicant states that the money she earned working for the company was deposited into a joint account and used for general living expenses.
The affidavit material filed by the respondent is sparse, being limited to one affidavit of eight paragraphs. The respondent states in his affidavit of 23rd November 2009 that:
a)The parties commenced a relationship in about April 2002 and commenced residing together in about May 2002;[16]
b)They purchased the home at [Property L] [Q] for $450,000.00 in about October 2002, the property was valued at $550,000.00 on 21st September 2009 and there is a mortgage to the ANZ Bank over the property standing at $350,000.00;[17]
c)He is the owner of the business [G] Pty Ltd which has an estimated value of $88,000.00. The land on which the business is situated at [Property B] [P] is valued at $415,000.00;[18]
d)The business was established by his father in about 1988 or 1989 and he has worked in the business since it was established. He and the applicant purchased the company in December 2004 for $250,000.00 with the aid of finance from the ANZ Bank;[19]
e)There are substantial debts associated with the business;[20] and
f)He has two children from his previous relationship aged 13 and 11 living with him.[21]
[16] Affidavit of Mr Goldstein 23.11.2009 at paragraph [3]
[17] Ibid at [4]
[18] Ibid at [5]
[19] Ibid at [6]
[20] Affidavit of Mr Goldstein 23.11.2009 at [7]
[21] Ibid at [8]
The respondent also filed a Financial Statement on 21st December 2009. He has filed no further affidavit material.
I assess the contributions by the parties as slightly favouring the applicant, so that the applicant’s contribution would be set at 55% and the respondent’s contribution at 45%.
Effect on Earning Capacity – s.90SM(4)
The proposed orders will be unlikely to have any effect on the earning capacity of either party.
Subsection 90SF(3) Factors
The applicant was born in 1979. She is 32 years of age and apparently in good health.
The respondent was born in 1975. He is 36 years of age and apparently in good health.
The applicant is currently working as a [occupation omitted] with a [company omitted] in [B]. She deposed that she started in that position on 1st November 2010 on a salary of $44,000.00 per annum. There is no evidence that she does not have the physical or mental capacity for gainful employment.
The respondent is carrying on the business of [G] Pty Limited. He has worked in that business since it was established by his father. There is no evidence that he does not have the physical or mental capacity for gainful employment.
There is no child of the parties’ relationship.
The respondent’s two children from his former marriage live with him. [X] was born in 1997. He is now 13 years and 9 months. [Y] was born in 1999. She is now 12 years and 2 months old.
The respondent does not claim to receive any payments of child support from the children’s mother.
Neither party gives any evidence of any responsibility to support any other person.
Neither party gives any evidence of having re-partnered.
The requirement of the respondent to support his two school-age children appears to be the only factor that would call for any adjustment of the parties’ entitlements. I am satisfied that this factor calls for a 5% adjustment in favour of the respondent.
Just and Equitable
Subsection 90SM(3) provides that the Court must not make an order under s 90SM unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order.
I take into account that the applicant has already received the sum of $9,500.00 by way of partial property settlement.
The proposed orders would see an equal division between the parties. The orders will involve the sale of the property at [Property L] [Q] and a division of the net proceeds. The applicant will relinquish her interest in the respondent’s company [G] Pty Limited and the respondent will indemnify her in respect of any indebtedness.
There are two classic motor vehicles, a 1952 Chevrolet utility and a 1966 Chevrolet Impala coupe. There is no issue between the parties that the applicant should receive the Chevrolet utility, which has an agreed value of $5000.00.
The respondent wants to keep the Chevrolet Impala, which is quite clearly the “apple of his eye”. In my view, it is appropriate to make an order that he should retain that vehicle.
The orders to be made will provide that:
a)The parties are to sell the property at [Property L], [Q] and divide the net proceeds equally between them;
b)The applicant will be declared the sole owner of the horses and horse floats in her possession, the Chevrolet utility, the coffee table, the dog and various cameras and accessories;
c)The respondent will be declared the sole owner of the Chevrolet Impala, the Jeep and the Honda quad bike;
d)The applicant will resign from any office she holds in [G] Pty Ltd and the respondent will indemnify in relation to any costs, expenses or claims associated with it;
e)The parties will retain any assets and superannuation entitlements in their name and possession; and
f)The parties will be solely responsible and indemnify each other for all liabilities in their names.
The applicant seeks that sum of $30,000.00 should be set aside to cover any costs order. I am not persuaded that this should be done. If the applicant seeks an order for costs, then she should apply within 28 days.
I am satisfied that it is just and equitable to make these orders.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 4 May 2011