Helbig & Pietri

Case [2023] FedCFamC1F 258

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Helbig & Pietri [2023] FedCFamC1F 258

File number(s): SYC 6431 of 2020
Judgment of: CHRISTIE J
Date of judgment: 6 April 2023
Catchwords: FAMILY LAW – FINAL PROPERTY – Where the parties signed consent orders for final property settlement – Where the parties recommenced their relationship after the final property consent orders were made – Where the parties subsequently ended their relationship on a final basis – Where the husband now seeks to have the consent orders set aside under s 79A of the Family Law Act 1975 (Cth) – Where the application is not opposed but the wife says the original orders should be determinative of issues which predate them – Where the wife made the more significant financial contribution – Where the parties made non-financial contributions of similar value – Where the husband provided assistance to the wife through care of her children from a previous relationship in the manner discussed in Robb and Robb – Where the income disparity between the parties is significant.   
Legislation: Family Law Act 1975 (Cth) ss 75, 79, 79A
Cases cited:

Kowaliw v Kowaliw (1981) FLC 91-092; [1981] FamCA 70

Mowatt & Mowatt [2016] FamCA 807

O’Hurley & O’Hurley (2008) FamCAFC 57

Preston & Preston (2022) FLC 94-108; [2022] FedCFamC1A 157

Robb and Robb (1995) FLC 92-555; [1994] FamCA 136

Waters and Jurek (1995) FLC 92-635; [1995] FamCA 101

Division: Division 1 First Instance
Number of paragraphs: 92
Date of hearing: 6 - 8 March 2023
Place: Sydney
Counsel for the Applicant: Mr Mando
Solicitor for the Applicant: Antonenas Legal
Counsel for the Respondent: Mr Lethbridge, SC
Solicitor for the Respondent: Mills Oakley Lawyers

ORDERS

SYC 6431 of 2020

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

MR HELBIG

Applicant
AND:

MS PIETRI

Respondent

order made by:

CHRISTIE J

DATE OF ORDER:

6 April 2023

THE COURT ORDERS THAT:

1.The orders of 27 December 2012 are set aside.

2.Within 60 days, Ms Pietri, the wife, pay to Mr Helbig, the husband, or as he may direct, the sum of $912,638.

3.Simultaneously with the payment in Order 2:

(a)The husband shall do all such things and sign all such documents as may be necessary to transfer to the wife the whole of his right, title and interest in the property situated at and known as B Street, C Town in the state of New South Wales being all of the land comprised in folio identifier … (“the C Town property”); and

(b)The wife shall do all such things and sign all such documents as may be necessary to cause the mortgage secured against the C Town property to be discharged.

4.The wife shall:

(a)Be solely entitled as between the parties to her interest in the properties situated at:

(i)D Street, Suburb E in the state of New South Wales being all of the land comprised in folio identifier …; and

(ii)F Street, Suburb E in the state of New South Wales.

(b)Be…

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AGLC
Helbig & Pietri [2023] FedCFamC1F 258
Case
[2023] FedCFamC1F 258
Decision Date

CaseChat Overview and Summary

In the case of Helbig & Pietri, the husband and wife, who were married in 2009 and separated in April 2012, applied for and were granted consent orders for property adjustment on 27 December 2012. The husband, after reconciling with the wife and later separating again in April 2020, commenced proceedings in the Federal Circuit Court of Australia seeking orders for property adjustment. The husband sought to have the "matrimonial asset pool" divided 60/40 in the wife’s favour, arguing that the existing consent orders should be varied or set aside. The wife conceded the necessity to set aside or vary the original orders if the husband's application was to proceed.

The legal issues before the court were whether the existing consent orders could be varied or set aside under section 79A of the Family Law Act, and if so, what adjustment to the parties' existing interests was necessary. The court had to consider the nature, composition, and value of the assets, liabilities, and superannuation at the time of the trial, taking into account the evidence provided by both parties. The court also had to determine the appropriate value of certain assets in dispute and decide whether these assets should be included in the pool available for adjustment.

The court considered the evidence provided by both parties and made findings on the disputed values of certain assets. The court accepted the wife's submission that the property at F Street was to be held as tenants in common, with the SMSF holding a 60% interest and the wife holding a 40% interest, and thus valued the wife's interest at $479,600. The court also accepted the wife's evidence that the property at M Street, City N, was beneficially held by her mother and would not be included in the pool of assets subject to adjustment. Regarding the shares in J Pty Ltd, the court adopted the wife's valuation of $1,204. The court concluded that the existing orders should be varied to reflect the correct values of the assets and to ensure a fair distribution of the matrimonial asset pool.

The court ordered that the existing consent orders be varied to reflect the correct values of the assets and to ensure a fair distribution of the matrimonial asset pool. The specific adjustments included valuing the wife's interest in the property at F Street at $479,600 and accepting that the property at M Street, City N, would not be included in the asset pool. The court also accepted the wife's valuation of the shares in J Pty Ltd at $1,204. The court made orders to adjust the division of the assets to reflect these findings, ensuring a fair and equitable outcome for both parties.

Orders

Orders of the court

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Background

Background to the litigation

A single expert valuer, Mr U, provided a report and addendum report which were relied upon by the parties. He attended the trial and was cross-examined.BACKGROUND The husband and wife married in 2009 and separated in April 2012. The parties applied for consent orders on 19 December 2012 for final property adjustment which were made orders of the Court on 27 December 2012 (“the final consent orders”). In 2013 the parties reconciled and later recommenced cohabitation in late 2014. On 29 April 2020 they separated on a final basis and divorced on 13 August 2021. There are no children to the marriage. The husband has an adult child to a previous relationship and the wife has three adult children to a previous marriage. All of the younger children were, from time to time, members of the parties’ household. The evidence did not resolve the dispute about whether the wife’s oldest child lived with the parties but nothing turns on this dispute. The husband commenced proceedings in the Federal Circuit Court of Australia (as it then was) on 14 September 2020 and sought orders for property adjustment such that, what he described as the “matrimonial asset pool”, should be divided 60/40 in the wife’s favour. The wife initially submitted that the Court would not entertain the husband’s application which effectively sought s 79A relief but ultimately made no submissions supportive of the conclusion that the Court had jurisdiction to make a subsequent s 79 order between the same parties, to the same marriage, absent s 79A. As the wife sought s 79 orders adjusting the parties’ assets, she ultimately conceded that it was necessary to set aside or vary the original orders. At the hearing, the following final joint balance sheet was agreed by the parties and marked as exhibit 25: Section 79A of the Act operates to create a discretion to set aside final orders, including orders made by consent, if the provisions of the section are engaged. Section 79A provides:(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or (c) A person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or (d) In the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substation for the order; or (e) A proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage; The court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside. (1A) A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.….

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It follows that I am being asked to either vary or set aside the existing s 79 order. That would enable the consideration of the making of another order under s 79 of the Act. Before such an order could be made, it would be necessary to have regard to all relevant provisions of ss 79 and 75(2) of the Act. CONSIDERATION It is necessary to consider the nature, composition and value of the assets, liabilities and superannuation at the time of trial as an initial step before considering what, if any, adjustment to the parties’ existing interests is necessary, having regard to the matters in the Act. The parties reached agreement about the identity of assets (as set out above) but remained at odds about the value of some items. Where the parties were in dispute I have considered the evidence and made findings.F Street, Suburb E This property was purchased by the wife and the trustee of her self-managed superannuation fund (“the SMSF”) in 2022. The wife does not deal with this in her affidavit. The title to the property at the time of trial reflected ownership by the wife and the SMSF in equal shares (exhibit 25). The wife completed the joint balance sheet to reflect her understanding of the instructions she provided to her lawyers at the time of the purchase, namely that the title was to be held as tenants in common with the SMSF holding a 60 per cent interest and the wife holding a 40 per cent interest. As the wife’s senior counsel submitted, since the property is held by the wife and by the SMSF in which she is the only beneficiary, the question of whether the value is reflected in one asset or the other is not material to the assessment of the overall pool of assets and superannuation. I accept that submission. Accordingly, the appropriate figure for the wife’s interest is $479,600.M Street, City N The husband includes in the balance sheet an amount of $360,000 as representing the value of what he submits is the wife’s interest in a property at M Street, City N, Western Australia (“the City N property”). This property is registered in the wife’s name and that of her sister. The wife gave evidence that the property is and has always been beneficially held by her mother. Further, she said that if the property is required to be sold during her mother’s lifetime, the funds will be applied to her mother’s living expenses. If it remains unsold at the time of her mother’s death then it will form part of her mother’s estate and be divided between the four siblings. The wife was not challenged about the beneficial ownership of the property and I accept she holds it with her sister on behalf of her mother. It will not be included in the pool of assets which may be the subject of adjustment.Shares in J Pty Ltd The wife has shares in a private company J Pty Ltd. This company is the corporate trustee of the K Trust (“the Trust”), a discretionary trust which is a vehicle for the receipt of the wife’s income from Q Company. The wife has attributed a value of $1,204 to the shares in this company (separate from the value to be attributed to the Trust). The husband recorded the value of the shares as “Not Known” and did not challenge the wife on the value attributed by her. I will therefore adopt the value contended for by the wife.K Trust