Horton and Horton

[2010] FamCA 160

FAMILY COURT OF AUSTRALIA

HORTON & HORTON [2010] FamCA 160

FAMILY LAW – PROPERTY SETTLEMENT

APPLICANT: Ms Horton

RESPONDENT: Mr Horton

FILE NUMBER: NCC 2257 of 2007

DATE DELIVERED: 5 March 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle

JUDGMENT OF: Cohen J

HEARING DATE: 16-17 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: MARK IRELAND

COUNSEL FOR THE RESPONDENT: Mr Moss

SOLICITOR FOR THE RESPONDENT: EVERINGHAM SOLOMONS

Orders

1. That within one month the husband shall pay to the wife $256,843.

2. That it is hereby declared that except as required to be performed in Order 1. all moneys, chattels, real estate, choses in action or other rights held by or in the name of a party are the sole property of that party and the other party has no interest at law or in equity in that property.

3. That costs are hereby reserved.

4. That liberty to apply is reserved to each party in respect of the implementation of Order 1.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 2257  of 2007

MS HORTON

Applicant

And

MR HORTON

Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife for orders for property settlement. In opening, her counsel said that the parties’ contributions to their present net assets were equal but that those assets should include $20,000 allegedly spent by the husband post separation without explanation or justification. As the wife agreed that s75(2) factors favour the husband to the extend of seven per cent, she sought 43 per cent of the parties’ property. That property was said to include the notional $20,000. Her claim is that the $20,000 should be part of the assets available for division because it has already been advanced to the husband in anticipation of the receipt of his share of them.

2. The husband asked for 70% of the net assets currently held by the parties. This does not include any of the claimed notional assets which should, according to the wife, be included. He says that he has contributed to the current net assets to the extent of 60% and that he should receive an additional 10% pursuant to s75(2) of the Act.

3. The parties commenced living together in July 1989, were married in October 1992 and separated between 23 and 26 December 2005. There are two children of the relationship, both boys, born respectively, in January 1997 and April 2000. Thus, at the time of hearing the boys were aged nearly twelve years and about seven years and eight months. The wife was at that time about 39 years old and working as a manager at a restaurant at B and living in B. The husband is about the same age as the wife. He used to be a public servant but his employment ceased in September 2006. He was unemployed when…