Haslam and Haslam - [2018] FCCA 734

FEDERAL CIRCUIT COURT OF AUSTRALIA

HASLAM & HASLAM

[2018] FCCA 734

Catchwords:
FAMILY LAW – Property – long marriage – no children – unequal financial contributions – wife has greater earning capacity – 5% adjustment for s.75 (2) factors.

Legislation:

Family Law Act 1975, ss.44, 75,79

Cases cited:

In Marriage of Browne and Green (1999) 152 FLR 417

In Marriage of Kowaliw (1981) FLC 91-092

Kennon v Kennon (1997) 139 FLR 118

Applicant:

MS HASLAM

Respondent:

MR HASLAM

File Number:

DNC 409 of 2014

Judgment of:

Judge Young

Hearing date:

21 March 2017

Date of Last Submission:

11 April 2017

Delivered at:

Darwin

Delivered on:

27 March 2018

REPRESENTATION

Counsel for the Applicant:

Ms L Morgan

Solicitors for the Applicant:

Hunt & Hunt Lawyers

Counsel for the Respondent:

Ms V Farmer

Solicitors for the Respondent:

Withnalls Lawyers

ORDERS

Leave is given to institute proceedings.
Within 28 days the wife is to transfer to the husband her interest in the property located at Property A, Victoria described in Certificate of Title Volume (omitted) Folio (omitted) (“the Property A house”) and the parties are to do all things necessary to obtain a discharge of the mortgage over the Property A house (“the Property A mortgage”).
Contemporaneously with the transfer in order 2 the wife is to pay the husband the sum of $65,142 with that sum to be used, first, to discharge the Property A mortgage and, secondly, if there is any surplus, to pay the husband.
In the event of any shortfall between the amount payable pursuant to order 3 and the amount required to discharge the Property A mortgage the husband is to pay that shortfall.
The parties are to confer about the sale of the (omitted) shares but in default of agreement the (omitted) shares are to be sold within 28 days and the proceeds of sale to be applied, first, to discharge any margin loan or other security in respect of the shares, secondly, the costs of sale, and, thirdly, to be divided equally between the parties but with the husband’s share to be applied to discharge the Property A mortgage (if necessary) before any distribution to him.
Within 28 days the wife is to do all things necessary to transfer her interest in the (omitted) bank joint account (item 7 in the table of assets in the reasons for judgment) to the husband and the account is to be closed.
Within 28 days the husband is to do all things necessary to transfer to the wife his interest in the (omitted) investment (item 8 in the table of assets in the reasons for reasons for judgment).
Within 28 days the husband is to do all things necessary to transfer into the wife’s possession her chattels in storage ((omitted)) and to transfer into her possession the (omitted) painting.
Otherwise the parties will retain all chattels, including jewellery, money and choses-in-action currently in their possession and indemnify the other party for any liability in respect of those things.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Haslam and Haslam

Details

AGLC: Haslam and Haslam [2018] FCCA 734
Case: [2018] FCCA 734
Decision Date: 27 March 2018

CaseChat Overview and Summary

This matter concerned an application by the wife for an alteration of property interests pursuant to s.79 of the *Family Law Act 1975* (Cth), and an associated application for an extension of time under s.44(3) of the Act. The court, presided over by Judge Young, granted leave to institute proceedings and extended the time for the wife to do so, finding that refusal would cause hardship. The parties, who divorced in 2014, had no children. The husband, aged 50, was employed in his own business, while the wife, aged 52, held qualifications as a (occupation omitted) and had a varied employment history.

The primary legal issues before the court were the division of the parties' property interests and the allocation of financial responsibilities related to those assets. This included determining the wife's contributions to the marriage, particularly in light of her educational pursuits and intermittent employment, and the husband's financial support during the early years of the relationship and his contribution of pre-relationship savings to the purchase of the matrimonial home. The court was required to consider the various assets, including a property in Victoria, shares, a bank account, investments, chattels, superannuation, and business interests, in order to make a just and equitable distribution.

The court's reasoning involved assessing the evidence regarding the parties' contributions, both financial and non-financial, throughout the marriage. Judge Young made findings of fact regarding the wife's employment history and the husband's financial support, noting discrepancies in the parties' accounts but ultimately finding the husband to be a more accurate historian in some respects. The court applied principles of property adjustment under the *Family Law Act*, considering the length of the marriage, the contributions of each party, and their future needs. The orders reflected a division of assets and liabilities, with specific directions for the transfer of property interests, payment of sums, and sale of shares.

The court ordered the wife to transfer her interest in the Property A house to the husband, with the sum of $65,142 to be paid by the wife to the husband, to be used first for discharging the mortgage on that property. Any shortfall in discharging the mortgage was to be paid by the husband. The parties were to confer on the sale of shares, with proceeds to be applied to discharge loans, costs, and then divided equally, with the husband's share to be applied to the Property A mortgage if necessary. The wife was to transfer her interest in a joint bank account to the husband, and the husband was to transfer his interest in an investment to the wife. Other orders dealt with the division of chattels, superannuation, business interests, and a Queensland house.

Orders

Orders of the court

Leave is given to institute proceedings.

Within 28 days the wife is to transfer to the husband her interest in the property located at Property A, Victoria described in Certificate of Title Volume (omitted) Folio (omitted) (“the Property A house”) and the parties are to do all things necessary to obtain a discharge of the mortgage over the Property A house (“the Property A mortgage”).

Contemporaneously with the transfer in order 2 the wife is to pay the husband the sum of $65,142 with that sum to be used, first, to discharge the Property A mortgage and, secondly, if there is any surplus, to pay the husband.

In the event of any shortfall between the amount payable pursuant to order 3 and the amount required to discharge the Property A mortgage the husband is to pay that shortfall.

The parties are to confer about the sale of the (omitted) shares but in default of agreement the (omitted) shares are to be sold within 28 days and the proceeds of sale to be applied, first, to discharge any margin loan or other security in respect of the shares, secondly, the costs of sale, and, thirdly, to be divided equally between the parties but with the husband’s share to be applied to discharge the Property A mortgage (if necessary) before any distribution to him.

Within 28 days the wife is to do all things necessary to transfer her interest in the (omitted) bank joint account (item 7 in the table of assets in the reasons for judgment) to the husband and the account is to be closed.

Within 28 days the husband is to do all things necessary to transfer to the wife his interest in the (omitted) investment (item 8 in the table of assets in the reasons for reasons for judgment).

Within 28 days the husband is to do all things necessary to transfer into the wife’s possession her chattels in storage ((omitted)) and to transfer into her possession the (omitted) painting.

Otherwise the parties will retain all chattels, including jewellery, money and choses-in-action currently in their possession and indemnify the other party for any liability in respect of those things.

10.

Each party is to retain to their own use and benefit all interest in their own superannuation funds.

11.

The husband is to retain, free of any interest of the wife, ownership of (business omitted) and his interest in (business omitted).

12.

The wife is to retain her interest in her Queensland house.

13.

The parties are to have liberty to apply for ancillary orders.

Background

Background to the litigation

This is an application for alteration of property interests pursuant to s.79 of the Family Law Act 1975 (the “Act”). The applicant also sought an extension of time pursuant to s. 44 (3) of the Act. This was not opposed and time will be extended because to refuse the extension would cause hardship to the applicant. Background and contributions Although the parties are divorced I will, for convenience, refer to them as the “wife” and the “husband”. The wife is 52 years old. She was born in (country omitted). The husband is 50 years old and was born in Australia. The parties began living together in 1992 in Australia and married in (omitted) 1993. The parties separated in 2013 and divorced in 2014. There are no children of the marriage. At all material times the husband has been employed in his own (omitted) business. The wife completed a degree in (qualifications omitted) in (country omitted) in 1992 and, as noted, began living with the husband in Australia shortly thereafter. Her employment history before 1997 was not canvassed in much detail. She said she worked in Australia in some relatively short-term employment and then as a (occupation omitted) from 1995. She said she obtained her (qualifications omitted) as a (occupation omitted) in Australia in 1996. The husband claimed that she did not work at all until 1996. He said she was studying for the (omitted) examination with a view to obtaining (qualifications omitted) as a (occupation omitted) and he financially supported her. The husband did, however, concede that the wife worked in a (employer omitted), presumably as an (occupation omitted), before she obtained her (qualifications omitted) as a (occupation omitted). He said she commenced working as a (occupation omitted) in (omitted) 1997. The evidence is conflicting but, on balance, I consider that the husband is a slightly more accurate historian. I find that the wife was employed full-time as a (occupation omitted) from (omitted) 1996 until she became a (occupation omitted) in (omitted) 1997 following her (qualifications omitted) as a (occupation omitted). I find that before (omitted) 1996 the wife was employed in some intermittent employment and was engaged in study for her (omitted) examinations. The husband claimed that he was the sole income earner for the first four years of the relationship. Although I am not satisfied that is the case, I find that the husband provided, at least, significant financial support to the wife from the beginning of the relationship in 1992 or early 1993 until she found full-time employment in (omitted) 1996. In 1998 the parties purchased a home in Property A, Victoria, in joint names for $225,000. The wife said that $135,000, secured by mortgage, was borrowed but she does not otherwise identify the source of the balance of the purchase moneys. The husband agreed about the purchase price but he said that $150,000, secured by mortgage, was borrowed. He said that he contributed $112,000 from his pre-relationships savings. Even allowing for stamp duty and conveyancing fees there appears to be some discrepancy between the expenditure claimed by the husband of $262,000 and the purchase price of $225,000. Nevertheless, it was not challenged by the wife that the husband applied significant pre-relationship funds to the purchase of the home.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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