Grohl & Acland

Case [2022] FedCFamC1F 101

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Grohl & Acland [2022] FedCFamC1F 101

File number(s): WOC 692 of 2016
Judgment of: RIETHMULLER J
Date of judgment: 16 March 2022
Catchwords: FAMILY LAW – Property and maintenance of parties – Alteration of property interests – Matters for court’s consideration – Contribution of parties – Where applicant was primary parent and homemaker – Child with special needs – Where respondent was primary income earner – Where no business valuation provided but companies were respondent’s source of income – Respondent increased lines of credit and withdrew funds from term deposit post separation – Large asset pool – Alteration of property interests assessed at 37.5 per cent to the applicant
Legislation: Family Law Act 1975 (Cth) ss. 90SF(3), 90SM(4)
Cases cited:

Grohl & Acland [2018] FamCA 732

Rosati v Rosati [1998] FamCA 38
Division: Division 1 First Instance
Number of paragraphs: 62
Date of hearing: 8, 9 and 10 November 2021
Place: Parramatta
Counsel for the Applicant: Mr Macpherson
Solicitor for the Applicant: Sydney Family Law Specialists
Counsel for the First Respondent: Mr Eardley
Solicitor for the First Respondent: S & R Lawyers
For the Second Respondent: The Second Respondent did not appear

ORDERS

WOC 692 of 2016

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

MS GROHL

Applicant
AND:

MR ACLAND

First Respondent

MS LIVINGSTONE

Second Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

16 MARCH 2022

THE COURT ORDERS THAT:

1.That within 14 days from the date of these orders, the parties electronically file a written submission with respect to any numerical errors that may be discovered in the reasons and a joint draft Minute of Order to give effect to those reasons.

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.

IT IS NOTED that publication of this judgment by this Court under the  pseudonym Grohl & Acland is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

RIETHMULLER J:

INTRODUCTION

  1. The applicant seeks property settlement orders against the first respondent following the breakdown of their de facto relationship in March 2016. 

    BACKGROUND

  2. The question of whether or not the parties were in a de facto relationship was determined by Carew J on 14 September 2018 when her Honour found that the de facto relationship commenced on a date between 1991 and 1995 and then continued thereafter until 26 January 2004.  After…

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Grohl & Acland [2022] FedCFamC1F 101
Case
[2022] FedCFamC1F 101
Decision Date

CaseChat Overview and Summary

Grohl sought property settlement orders against Acland following the breakdown of their de facto relationship. Carew J had already determined that the parties were in a de facto relationship from 1991 to 2004, with a resumption in November 2005 until it ended on 6 March 2016. The primary issue in this trial was the division of property between the parties. The court had to consider the contributions of each party during the relationship, including financial and non-financial contributions, and the future needs of the parties, particularly in light of the applicant's ongoing care responsibilities for their autistic child.

The court found that the contributions of the parties should be assessed at 35% for the applicant and 65% for the respondent. The court also considered additional factors such as the respondent's health issues, the value of the businesses, and the significant pool of assets. The court decided that a 2.5% adjustment in favour of the applicant was warranted, resulting in a property settlement based on a 37.5 to 62.5 split in favour of the respondent. The total assets, including superannuation, would be divided such that the applicant would receive $5,118,417 and the respondent would receive $8,530,695. The applicant would retain the Suburb B matrimonial home and her superannuation, while the respondent would retain the Suburb N property and his superannuation. The respondent would also be liable to pay the applicant $4,148,194.

The court ordered that the respondent would pay the applicant $4,148,194, with the respondent intending to borrow funds to make this payment. The applicant would retain the Suburb B matrimonial home, her superannuation, and the assets currently held by her. The respondent would retain the Suburb N property, his superannuation, and the assets currently held by him, along with liabilities such as the viridian line of credit and the benefit of the add-back amounts.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks property settlement orders against the first respondent following the breakdown of their de facto relationship in March 2016. BACKGROUND The question of whether or not the parties were in a de facto relationship was determined by Carew J on 14 September 2018 when her Honour found that the de facto relationship commenced on a date between 1991 and 1995 and then continued thereafter until 26 January 2004. After a break for a period, the de facto relationship thereafter resumed in November 2005 and continued until it broke down on 6 March 2016: see Grohl & Acland [2018] FamCA 732. In the trial before me, there was no dispute that the parties had commenced cohabitation in 1991 when the respondent moved into the residence of the applicant’s parents. The parties lived there together for around three years. At this time, the parties did not pay rent to the applicant’s parents, but did assist with bills and outgoings, and the household chores as well as the respondent contributing some fruit and vegetables from time to time. During this early period, the applicant worked full-time as a health professional, and then took long service leave to assist the respondent with his business (without receiving a wage) before ultimately resigning as a health professional and assisting the respondent on a permanent basis. In around 1994, the parties took a rental property at Suburb B, ultimately purchasing it in December 1996 for $152,500. They used their savings to pay the deposit of $32,500 and borrowed the remainder. In 1997, the parties’ first child was born, and the applicant became the full-time carer of their child. In around October that year, the applicant fell pregnant again, and their second child was born in 1998. The applicant continued to be the primary carer for both children until the elder child became independent. The younger child has been diagnosed as falling within the autism spectrum and having some intellectual delay. Through his childhood he required assistance from various practitioners delivering therapies, including speech therapy and occupational therapy. The applicant is still primarily responsible for his care even though he is now an adult as he is not able to fully care for himself. He has employment one day a week at a store undertaking low-level tasks, however, has not been able to undertake tasks such as operating a cash register. In evidence, an example of his need for support was given of him making inappropriate purchases on the internet. It appears clear that he will require support (although not full-time supervision) on an ongoing basis, and that this will be provided in large part by the applicant. The respondent’s mother passed away in 2001, and his father passed away in 2002. Following the respondent’s father’s death, he and two siblings each received a one-third share in each of two properties, the Suburb N property and a P Town property. The P Town property was sold and the proceeds were shared between the three siblings. The respondent applied his funds to the parties’ Suburb B mortgage. The respondent later purchased one of his siblings’ one-third share in the Suburb N property for $466,666.66. It appears that the respondent funded this purchase by way of a mortgage of around $500,200 (he also had to pay stamp duty and legal fees). Whilst the applicant understood that the respondent had purchased both of his sibling’s shares, this does not appear to be the case as his other sibling, the second respondent, remains on title, and the second respondent’s children have continued to have the use of parts of the Suburb N property.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

When considering the contributions of the parties as a whole, I am ultimately persuaded that the contributions of the applicant ought to be assessed at 35 per cent and those of the respondent at 65 per cent.OTHER CONSIDERATIONS Section 90SM(4) of the Act provides a list of additional considerations (including those set out in s 90SF(3)) that should be taken into account in determining an appropriate property settlement. In this case, the respondent has a number of significant health issues, however, they have not stopped him from working and he intends to continue to operate the business. At the hearing it was clear that he intended to borrow sufficient funds to pay out the applicant and continue operating his business from the property. The applicant is employed and earns only a limited amount. She has spent her life caring for the children and not developed a career or substantial earning capacity. I accept the respondent’s evidence that he reasonably expects to be able to borrow sufficiently to pay out the applicant, which also demonstrates that his likely income from the businesses is not insignificant, and far greater than the income that the applicant may be able to earn. Having regard to the business valuations given by the respondent, I accept that I should also take into account that the businesses must have a greater value than is represented by a total value of $30,000, particularly in circumstances where the respondent expects to be able to pay the applicant her property settlement share and retain the Suburb N property, with the applicant retaining the Suburb B property. I also take account of the reality that the applicant’s caring responsibilities for the second child of the parties will continue into the future. When considering these matters, in the context of the significant amount involved in the pool of assets in this case, I am persuaded that an adjustment of 2.5 per cent in favour of the applicant is warranted. Whilst this is a small percentage, it must be seen in the context of the large pool of assets in this case. Following such an adjustment, the property settlement would be based upon a split of a 37.5 to 62.5 in favour of the respondent.EFFECT OF THE ORDERS In this case, I note that the effect of the orders in the figures indicated would be for total assets (including superannuation) of $5,118,417 to be settled on the applicant and $8,530,695 to the respondent. I note that the amount calculated for the respondent includes the add-back amounts. On the assumption that the applicant will retain the Suburb B matrimonial home and the respondent will payout the applicant, she would receive the assets currently held by her, the Suburb B matrimonial home and retain her superannuation, together with receiving a payment of $4,148,194 from the respondent. The respondent would retain his superannuation, the Suburb N property, and the assets such as bank accounts currently held by him (totalling $12,049,066), and superannuation of $160,000 (to a total value of $12,209,066), together with liabilities consisting of the viridian line of credit, and the benefit of the add-back amounts. He will also have a liability to pay the applicant $4,148,194 which he says he can borrow rather than selling the property.