HAIDER & HAIDER
[2012] FMCAfam 1167
•2 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAIDER & HAIDER | [2012] FMCAfam 1167 |
| FAMILY LAW – Property – division of pool – valuation of contributions – single expert reports – wife contributed more as homemaker and carer. |
| Family Law Act 1975, s.75(2), 79(4). Family Law Rules 2004, r.13.04. |
| Applicant: | MS HAIDER |
| Respondent: | MR HAIDER |
| File Number: | MLC 11893 of 2010 |
| Judgment of: | F. Turner FM |
| Hearing dates: | 6, 7, 8, 9, 23 and 24 August 2012 |
| Date of Last Submission: | 28 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 2 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Benjamin |
| Solicitors for the Applicant: | Kliger Partners |
| Counsel for the Respondent: | Mr Hoult |
| Solicitors for the Respondent: | Kenna Teasdale Lawyers |
ORDERS
The husband pay to the wife the sum of $287,540.00 (“the payment”) within sixty days (“the date”).
The wife shall retain, to the exclusion of the husband, all of her right title and interest in the property situate at and known as Property K, [K] and being the land more particularly described in Certificate of Title Volume [omitted] (“the [K] property”).
The husband shall, at his cost and expense, forthwith withdraw the caveat lodged by him on the [K] property and particular being caveat number [omitted] registered 17 January 2007.
The wife shall indemnify the husband in relation to all rates, taxes and liabilities of or with respect to the [K] property of whatsoever nature and kind including any arrears.
That the wife shall, contemporaneously with the payment referred to in order 1 herein transfer to the husband, at the husband’s cost and expense, all of her right, title and interest in the real property situate at and known Property R, [R], being the land described in Certificate of Title Volume [omitted] (“the [R] property”).
Contemporaneously with the transfer of the [R] property the husband shall indemnify the wife in relation to all rates, taxes and apportionable outgoings including building and contents insurance and pay the same, including any arrears, as and when they fall due.
The husband shall, at his cost and expense, forthwith withdraw the caveat lodged by him on the [R] property and particular being caveat number [omitted] registered on 17 January 2007.
In the event that the whole of the payment has not been made by the date then the wife shall do all things necessary to sell the [R] property as soon as possible out of Court (“the sale”) and the proceeds of sale be applied:
(a)Firstly to pay all costs, commissions and expenses of the sale;
(b)Secondly to pay any and all outstanding rates, taxes and outgoings of with respect to the [R] property of whatsoever nature and kind;
(c)Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of eleven per centum per annum, adjusted monthly from the date to the wife and the balance to the husband.
The wife sign all such documents and do all things necessary to, at the husband's cost and expense, be removed as trustee of the Mr Haider Family Trust dated 23 August 1996.
The wife, at the husband's cost and expense, shall transfer to the husband any and all shares held by her in [S] Pty Ltd. (“the company”) (A.C.N. [omitted]).
The husband shall retain all property owned by the said company save and except for the home computer and facsimile machine presently in the possession of the wife at the former matrimonial home at Property K, [K].
The husband shall indemnify the wife and keep her forever indemnified in relation to all unpaid liabilities, past, present and future and contingent of whatsoever nature and kind including any and all moneys due to the Australian Taxation Office.
The wife disclaim her interest as beneficiary and creditor of the
Mr Haider Family Trust, and assign to the husband, or his nominee, any credit loan accounts for unpaid present entitlements owing to the wife from the Trust and assign to the husband any and all debit loan accounts owing by the wife solely or jointly to them in place of the wife.
The husband is restrained from in any way making distribution to the wife from the Mr Haider Family Trust and or the Company.
The wife shall retain to the exclusion of the husband the following:
(a)Her share portfolio;
(b)The 2008 [omitted] motor vehicle.
(c)The contents of the [K] property, her personal clothing and jewellery.
(d)Any moneys standing to any bank accounts in her name.
The husband shall retain to the exclusion of the wife the following:
(a)[S] Pty Ltd.
(b)His share investment portfolio with [J] or any other shares held by the husband in his name.
(c)The contents of the [R] property and his rented premises where he is presently residing.
(d)The 2007 [omitted] motor vehicle.
(e)The 1991 [omitted] motor vehicle.
(f)Any amounts owed to him by the [M] Trust.
Each party shall be responsible for and indemnify the other in relation to any liabilities in their name and including any moneys allegedly owed by the parties to their respective parents and the husband to his grandmother Ms B.
Any outstanding fees owed to [C] School are to be paid by the husband.
Each party shall retain any superannuation interest accrued in their respective names.
IT IS NOTED that publication of this judgment under the pseudonym Haider & Haider is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11893 of 2010
| MS HAIDER |
Applicant
And
| MR HAIDER |
Respondent
REASONS FOR JUDGMENT
The parties in this matter were married [in] 1997, and separated on a final basis on 5 August 2010.
There are three children of the marriage; [X] born [in] 1998, [Y] born [in] 2000 and [Z] born [in] 2003.
By final parenting orders made on 23 August 2012 it was ordered that, commencing on 29 August 2012, the children spend time with and communicate with the husband each alternate week from Wednesday after school to the commencement of school on Monday, during the school term times.
It was ordered by consent that:
·The husband and wife have joint parental responsibility for the care, welfare and development of the three children;
·The children live with the wife;
·In addition to the time specified above, the children are to spend time with the husband; for one half of all school term holidays, for time at Christmas, on Father’s Day and birthdays, and such further times as agreed between the parties.
By orders made on 24 August 2012, in relation to the property proceedings, it was ordered:
(1)Each party file and serve written submissions by 28 September 2012 detailing:
(a)The exact property orders sought;
(b)The content of the asset pool;
(c)The percentage division of the asset pool sought and how that is said to be justified.
The applicant wife filed written submissions on 26 September 2012; the respondent husband filed written submissions on 28 September 2012.
The Wife’s Case
The wife seeks 70% of the asset pool, on the basis that:
·She has the primary responsibility for the three children (s.75(2)(c) of the Family Law Act1975 (the “Act”);
·The husband had a declared income for the year ended June 2011 of $26,500.00 plus commissions (between November 2010 and February 2012) totalling $68,990.00; and
·The husband pays child support of $32.00 per week for the three children (wife’s Financial Statement filed 30 July 2012). Whether it is $32.00 per week or $64 per week as stated in the husband’s Financial Statement filed on 30 June 2011 is of no consequence for this decision.
Single expert Mr H (“Mr H.”), a consultant at [omitted] Accountants and Business Advisors, in his Supplementary Report dated 22 August 2012 (the “Supplementary Report”) reported that:
Contributions by the husband, his parents, other relatives and related entities at the commencement of the marriage
$435,691.00
Contributions by the same, during the marriage
$622,710.00
Total
$1,058,401.00
Contributions by the wife, her parents, other relatives and related entities at the commencement of the marriage
$176,897.00
Contributions by the same, during the marriage
$904,037.00
Total
$1,080,934.000
Total
$2,139,335.00
Ms Benjamin submits that Counsel have agreed that the parties contributed equally at the commencement of and during the marriage.
The Court finds no reason to question the figures provided by Mr H., and accepts them.
Contributions by the husband ($1,058,401.00) towards $2,139,335.00 = 49.47%. Contributions by the wife ($1,080,934.00) towards $2,139,335.00 = 50.52%.
Distribution of the Asset Pool
In the written submissions for the wife, Ms Benjamin submits that the:
“Court may be satisfied that the husband has still not disclosed his true financial position given his behaviour”. [22].
Ms Benjamin submits that “the husband was an unsatisfactory witness who was evasive, untruthful and obfuscatory during the whole of these proceedings” and gave examples (Ibid [23]).
Ms Benjamin submits that the husband’s response was that “he has been ‘lazy’ in not filing his taxation returns”, which although it may be true, should not deter the Court from looking at the reasons for the non-filing of tax returns (Ibid [26]).
Ms Benjamin submits “that the husband has been untruthful, and has perjured himself repeatedly. He has no credit whatsoever in respect of his financial position” (Ibid [35(b)]).
The Court is not satisfied that the husband has disclosed his financial position fully and accurately. Rule 13.04 of the Family Law Rules 2004 provides:
(1)A party to a financial case must make full and frank disclosure of the party's financial circumstances, including:
(a)the party's earnings, including income that is paid or assigned to another party, person or legal entity;
(b)any vested or contingent interest in property;
(c)any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;
(d)any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;
(e)the party's other financial resources;
(f)any trust:
(i)of which the party is the appointor or trustee;
(ii)of which the party, the party's child, spouse or de facto spouse is an eligible beneficiary as to capital or income;
(iii)of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's child, spouse or de facto spouse is a shareholder or director of the corporation;
(iv)over which the party has any direct or indirect power or control;
(v)of which the party has the direct or indirect power to remove or appoint a trustee;
(vi)of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;
(vii)of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or
(viii)over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party's child, spouse or de facto spouse is a director or shareholder of the corporation;
(g)any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:
(i)in the 12 months immediately before the separation of the parties; or
(ii)since the final separation of the parties; and
(h)liabilities and contingent liabilities.
(2)Paragraph (1) (g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.
(3)In this rule:
“legal entity” means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity.
Note The requirements in this rule are in addition to the requirements in rules 12.02 and 12.05 to exchange certain documents before a conference in a property case
The Court does not find the husband’s behaviour amounts to statutory fraud on it, or on the wife. However, he has not been readily forthcoming with his financial details. The Court does not use this to the detriment of the husband.
Ms Benjamin sets out the wife’s calculation of the asset pool in Part D of her written submissions as follows:
Item
Wife Value
Husband’s Value
1
Property K, [K] [1]
$1,715,000
$1,715,000
2
Property R, [R] [2]
$ 490,000
$ 490,000
3
Husband’s shares [3]
$ 471,000
$ 471,000
4
Husband’s Loan Account [M] [4]
$ 6,865
$ 6,865
5
Husband’s [vehicle omitted] [5]
$20,000
$16,550
6
Husband’s [vehicle omitted]
$ 5,150
$ 5,150
7
Husband’s Bank Funds
$2,476
$ 2,476
8
Wife’s bank funds
$ 13,894
$ 13,894
9
Wife’s shares
$24,402
$24,402
10
Wife’s (sold) motor vehicle
$15,000
$15,000
11
Moneys owing to Husband by Strategic Property Services (husband's evidence 24 August 2012)
$111,745
$111,745
12
Monies received by Wife pursuant to Order $75,000 [6] –from which wife purchased new car For $39,990 less trade in $15,000Above (#10)balance
$24,990
$60,000
$2,900,522
$2,932,082
Add backs: [7]
1
Husband’s [U] Trust sale
$25,838.63
$0
2
Husband’s sale [B] Investment Fund
$62,234.60
$0
$2,993,595.23
$2,932,082.00
Less: Liabilities:
1
Wife – Owing to [C] School (*pursuant to Orders 23 August 2012 the husband is to be responsible for payment of school fees.)
$ [ 5,531]
2
Beverley & Mr H for school Fees Terms 1 & 2
$[16,353]
NET ASSET pool
$2,988,064.23
$2,915,729
SAY NET ASSET POOL FOR DIVISION
$2,988,000
[1] Single expert valuation
[2] Single expert valuation
[3] (husband's evidence 24/8/12)
[4] Report of Mr H. dated 14 June 2012 and contained in Affidavit of Mr H. sworn and filed 30 July 2012
[5] Wife's valuation is retail Redbook value of the vehicle. Husband's valuation is trade in Redbook value of the vehicle
[6] Wife states that the amount of $75,000 received by her which is reflected in the equity of her present vehicle should be dealt with as an asset and the balance as maintenance. The husband's view is that all of the amount of $75,000 should be treated as an asset. The $60,000 figure in the husband's column is reflective of the following - $75,000 paid less $15,000 referred to at item 10 above.
[7] See Mr H.'s report dated 14 June 2012 wherein the husband repaid these funds to his mother.
The amount of $75,000.00 included in Item 12 above was paid by the husband to the wife pursuant to order 2 of the orders by consent, made on 1 July 2011. Such sum is now to be characterised by the Court.
Ms Benjamin submits that $24,990.00 (being the current value of the wife’s car) of the $75,000.00 should be treated as an asset, and the remainder as spousal maintenance. The husband proposes that the $75,000.00 should be characterised as property.
The amount of $75,000.00 was not ordered after an assessment of spousal maintenance, and must be regarded as an interim distribution of property to the wife.
Therefore, the sum of $24,990.00 is to be included as an asset of the wife, and $50,000.00 as the balance of the interim distribution.
If the Court were to accept the submissions of Ms Benjamin as to add backs, the net asset pool would be $2,988,064.23 plus superannuation of $55,987.00, totalling $3,044,051.23.
The Husband’s Case
Mr Hoult submits that the husband has elected to the pay the entire school fees for [X] and [Z] to attend [C] School of $42,500.00 per annum (see order 3 of the orders made 23 August 2012). This is a significant commitment and is taken into account under s.75(2)(c) of the Act.
Mr Hoult submits that as the parties’ superannuation interests are almost equal, they should be excluded. The Court finds that as the division to the wife is to be 70% (post), the superannuation interests should be included.
Mr Hoult submits that the husband’s shares are valued at $428,000.00 and not $471,000.00 as contended by the wife. Mr H. valued those shares at $428,075.00 in his report dated 14 June 2012. Mr Hoult submits that Ms Benjamin tendered a “Summary of Parties Assets” (which is attached to his written submissions and marked Annexure ‘A’). That Annexure puts the value of the husband’s shares at $428,075.00. The husband gave evidence on 24 August 2012 that his shares were then valued at “$471,000.00” (Transcript “T” 24/08/12 p.412, l.40). The shares will be included in the pool at $471,000.00.
Mr Hoult submits that the husband’s [vehicle omitted] be valued at $16,500.00. The wife’s valuation of $20,000.00 is the retail value in the Redbook. The Court accepts the value of $20,000.00.
Adjusting Mr Hoult’s figures in the asset pool (Part B of the written submissions for the husband), in accordance with the figures above, the total assets, after deducting the $75,000.00 paid to wife, become $2,838,637.000 (submissions p.2).
Mr Hoult submits that the Court should ignore the $111,745.00 (Annexure ‘A’ to the husband’s written submissions) which represents “moneys owed to the husband’s business by the husband” (submissions [12]). In fact they are “monies owing to Husband by…” his business (T 24/08/12 p.422, l.40, p.423, l.42, p.424, l.47 and p.425, l.6).
The sum of $111,745.00 should be included in the pool.
Mr Hoult submits that the $75,000.00 paid to the wife be added back to the pool. The Court finds that the amount can either be treated that way, or deducted from the distribution to the wife. The amount will be deducted from the wife’s entitlement.
Mr Hoult submits that the add backs to the pool proposed by
Ms Benjamin should be excluded. Those amounts are repayments of loans from the husband’s family. In Mr H.’s report of 14 June 2012, he identifies the amounts as being “deposited into Ms H’s [omitted] Cash Management Account… as repayment of loans” (Annexure “PWAH2” to the Affidavit of Mr H filed 30 July 2012). The figure must be included in the pool to balance the contributions made by the husband, his parents and other relatives.
The Court finds that the asset pool proposed by Ms Benjamin is correct.
Mr Hoult submits that pursuant to order 8 of the orders of 1 July 2011 the wife was responsible for paying half of the fees at [C] School pending the final hearing. Mr Hoult submits that the paternal grandparents paid the fees and that the wife has refused to pay her half. Mr Hoult seeks an order that the wife pay $16,353.00 to Ms H and
Mr H. As they are not parties to these proceedings, Ms H and Mr H have no right to that order. Further, that is not a claim between the parties arising in an associated jurisdiction. That application is dismissed.
Conclusions
The Court accepts the submissions of Ms Benjamin as to add backs. The total pool for distribution is $3,044,051.23 (being $2,988,064.23 + $55,987.00 superannuation).
Financial contributions by the wife before and during the marriage were 50.52% of the total. To this the Court adds an adjustment of 10% for the wife’s non-financial contributions during the marriage (totalling 60.52%). In assessing the wife’s contributions to parenting the Court has had regard to Exhibits W1 to W16. On the evidence, the Court finds that the wife contributed more as homemaker and carer than the husband throughout the 13 year marriage. The Court makes the adjustment of 10% pursuant to s.79(4)(c).
Further, by parenting orders dated 23 August 2012, the wife is to be the primary carer for the three children [X] (now 14 years old), [Y] (now 12 years old) and [Z] (now 9 years old). The wife is to care for the children 64% of the time. That is, the husband is to spend time with and care for the children in alternate weeks from after school on Wednesday until the commencement of school the following Monday (5 nights out of 14 – being 36% of the time). These figures are not affected significantly by the husband caring for the children half of the school holidays, plus the other time they are to spend with him.
The Court would add a loading to the wife of 5% for each child, if the wife had full care of the children. She is to have them for 64% of the time, making the appropriate loading (5 x 64% = 3.2%) 3.2% for each child (3 x 3.2% = 9.6%). The Court therefore adds 9.6% to 60.52% = 70.12%. The wife seeks 70%. From this division, the wife has already received $75,000.00 which is to be deducted.
Section 79
Section 79(4)(a)(b) and (c) – the Court refers to the conclusions (supra) as to financial and other contributions before and during the marriage.
Section 79(4)(d) – the orders made in this matter will not affect the earning capacity of the parties.
Section 79(4)(e) and Section 75(2)
Section 75(2)(a) – The wife is 45 years old and in good health. The husband is 45 years old and in good health.
Section 75(2)(b) – Both parties have the psychical and mental capacity for appropriate gainful employment. The husband has a greater capacity to earn income.
Section 75(2)(c) – The wife has the care and contact of the children for 64% of the time. The Court notes the husband’s commitment to pay the fees at [C] School.
Section 75(2)(d) – The wife has the commitment of supporting and accommodating the children for 64% of the time. The husband pays minimal child support.
Section 75(2)(e) – Not relevant.
Section 75(2)(f) – The wife receives little income, apart from Commonwealth Government family benefits and a carer’s allowance, which the Court must disregard [s.75(3)]. The superannuation funds of the parties are to be included in the division.
Section 75(2)(g) – The parties will be able to maintain a standard of living that in all the circumstances is reasonable.
Section 75(2)(h) – Not relevant.
Section 75(2)(ha) – Not relevant.
Section 75(2)(j) – Not relevant.
Section 75(2)(k) – The marriage lasted for 13 and a half years and the special needs of the [Y] have reduced the wife’s earning capacity.
Section 75(2)(l) – The wife wishes to continue as the primary carer of the children.
Section 75(2)(m) – The wife has not re-partnered. The husband has a current partner, but whether they are cohabitating, or their financial circumstances, have not been disclosed.
Section 75(2)(n) – The determination pursuant to s.79 is 70% to the wife.
Section 75(2)(naa) – The superannuation of the parties is to be included in the division of 70% to the wife.
Section 75(2)(na) – The husband pays child support of either $32.00 or $68.00 per week.
Section 75(2)(o) – The wife has the primary care of three children including [Y] who suffers from Downs Syndrome and requires special care and attention.
Section 75(2)(p) and (q) – Not relevant.
Section 79(2) – The Court is satisfied that a division of the pool of 70% to the wife and 30% to the husband is just and equitable.
The Court Orders
The wife is entitled to:
70% of the pool of assets of $3,044,051.23
$2,130,835.00
Less interim distribution
$75,000.00
$2,055,836.00
The wife receive as follows:
The property at Property K, [K]
$1,715,000.00
Wife’s Bank Account
$13,894.00
Wife’s shares
$24,402.00
Funds from sale of Wife’s motor vehicle
$15,000.00
$1,768,296.00
70% Entitlement
$2,055,836.00
Less assets to be retained by the wife
$1,768,296.00
Further money to be paid by the husband to the wife
$287.540.00
The Court orders:
The husband pay to the wife the sum of $287,540.00 (“the payment”) within sixty days (“the date”).
The wife shall retain, to the exclusion of the husband, all of her right title and interest in the property situate at and known as Property K, [K] and being the land more particularly described in Certificate of Title Volume [omitted] (“the [K] property”).
The husband shall, at his cost and expense, forthwith withdraw the caveat lodged by him on the [K] property and particular being caveat number [omitted] registered 17 January 2007.
The wife shall indemnify the husband in relation to all rates, taxes and liabilities of or with respect to the [K] property of whatsoever nature and kind including any arrears.
That the wife shall, contemporaneously with the payment referred to in order 1 herein transfer to the husband, at the husband’s cost and expense, all of her right, title and interest in the real property situate at and known Property R, [R], being the land described in Certificate of Title Volume [omitted] (“the [R] property”).
Contemporaneously with the transfer of the [R] property the husband shall indemnify the wife in relation to all rates, taxes and apportionable outgoings including building and contents insurance and pay the same, including any arrears, as and when they fall due.
The husband shall, at his cost and expense, forthwith withdraw the caveat lodged by him on the [R] property and particular being caveat number [omitted] registered on 17 January 2007.
In the event that the whole of the payment has not been made by the date then the wife shall do all things necessary to sell the [R] property as soon as possible out of Court (“the sale”) and the proceeds of sale be applied:
(a)Firstly to pay all costs, commissions and expenses of the sale;
(b)Secondly to pay any and all outstanding rates, taxes and outgoings of with respect to the [R] property of whatsoever nature and kind;
(c)Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of eleven per centum per annum, adjusted monthly from the date to the wife and the balance to the husband.
The wife sign all such documents and do all things necessary to, at the husband's cost and expense, be removed as trustee of the Mr Haider Family Trust dated 23 August 1996.
The wife, at the husband's cost and expense, shall transfer to the husband any and all shares held by her in [S] Pty Ltd. (“the company”) (A.C.N. [omitted]).
The husband shall retain all property owned by the said company save and except for the home computer and facsimile machine presently in the possession of the wife at the former matrimonial home at Property K, [K].
The husband shall indemnify the wife and keep her forever indemnified in relation to all unpaid liabilities, past, present and future and contingent of whatsoever nature and kind including any and all moneys due to the Australian Taxation Office.
The wife disclaim her interest as beneficiary and creditor of the
Mr Haider Family Trust, and assign to the husband, or his nominee, any credit loan accounts for unpaid present entitlements owing to the wife from the Trust and assign to the husband any and all debit loan accounts owing by the wife solely or jointly to them in place of the wife.
The husband is restrained from in any way making distribution to the wife from the Mr Haider Family Trust and or the Company.
The wife shall retain to the exclusion of the husband the following:
(a)Her share portfolio;
(b)The 2008 [omitted] motor vehicle.
(c)The contents of the [K] property, her personal clothing and jewellery.
(d)Any moneys standing to any bank accounts in her name.
The husband shall retain to the exclusion of the wife the following:
(a)[S] Pty Ltd.
(b)His share investment portfolio with [J] or any other shares held by the husband in his name.
(c)The contents of the [R] property and his rented premises where he is presently residing.
(d)The 2007 [omitted] motor vehicle.
(e)The 1991 [omitted] motor vehicle.
(f)Any amounts owed to him by the [M] Trust.
Each party shall be responsible for and indemnify the other in relation to any liabilities in their name and including any moneys allegedly owed by the parties to their respective parents and the husband to his grandmother Ms B.
Any outstanding fees owed to [C] School are to be paid by the husband.
Each party shall retain any superannuation interest accrued in their respective names.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 2 November 2012
0
0
2