FEDERAL CIRCUIT COURT OF AUSTRALIA
| IRVING & PARKES | [2015] FCCA 3049 |
| Catchwords: FAMILY LAW – Property – date of separation – whether the doctrine of promissory estoppel applies – contributions. |
| Legislation: Family Law Act 1975, ss.75, 79, 90C, 90DA, 90G, 119, Child Support (Assessment) Act 1989 ss.5, 98, 116, 117 |
| Todd and Todd (No 2) (1976) FLC 90-008 Lane and Lane (No 1) (1976) FLC 90-055; Abrams & Director-General, Department of Human Services (NSW) [2007] FamCA 731 In the Marriage of McKay (1984) 59 ALR 117 In the Marriage of Gyselman (1992) 15 FLR 219 |
| Applicant: | MR IRVING |
| Respondent: | MS PARKES |
| File Number: | MLC 1940 of 2013 |
| Judgment of: | Judge Small |
| Hearing dates: | 16 – 20 March 2015 |
| Date of Last Submission: | 15 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 20 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Combes |
| Solicitors for the Applicant: | Telford Story & Associates |
| The Respondent: | Ms Parkes in person |
| Solicitors for the Respondent: | None |
ORDERS
Parenting Orders
In relation to the time the husband spends with the children X born (omitted) 1999 and Y born (omitted) 2000, changeover shall occur at the wife’s home at the commencement of time and at an agreed location close to the intersection of the (omitted) and the (omitted) Roads at the conclusion of time, and failing agreement, at the (omitted) Service Station on the corner of (omitted) and (omitted), (omitted).
Property Orders
Within 60 days (“the due date”) the wife shall pay to the husband the sum of $25,270 (“the payment”).
Contemporaneously with the payment the husband shall relinquish all of his right title and interest in the property situate at and known as Property P in the state of Victoria being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the Property P property”).
In the event that the whole of the payment has not been made by the due date the wife shall do all such acts and things and sign all such documents as may be necessary to place the Property P property on the market for sale (“the sale”) and upon completion of the sale the sale proceeds shall be distributed as follows:
(a)first to pay all costs and commissions of the sale;
(b)second to discharge the mortgage over the (omitted) property;
(c)third to make the payment to the husband plus interest at the rate of 8.5% per annum from the due date to the date of payment;
(d)fourth the remainder to the wife.
Upon completion of the sale of the real property situate at and known as Property H in…
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- Irving and Parkes [2015] FCCA 3049
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- [2015] FCCA 3049
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CaseChat Overview and Summary
The court was required to determine the date of separation of the parties, which was a crucial factor in the property settlement. The husband contended for a later separation date than the wife, impacting the valuation and distribution of assets.
Judge Small considered the evidence presented by both parties regarding their separation. The husband argued for a separation date in July 2011, citing continued cohabitation, joint accounts, and shared responsibilities. He also explained his 2008 email referencing "irreconcilable differences" as pertaining to their business relationship. The wife, however, argued for an earlier separation date in 2005 or 2008, supported by the husband's email and the wife reverting to her maiden name. The court noted the husband's concession that the parties had ceased their sexual relationship in 2001 but continued to share a bedroom, albeit in separate beds. The court also considered the timing of the wife's professional qualifications and the change in the company name.
The court made various parenting and property orders. These included specific arrangements for child changeovers, a payment of $25,270 from the wife to the husband within 60 days, and the relinquishment of the husband's interest in Property P upon payment. The orders also detailed the sale of Property P if the payment was not made by the due date, with specific distribution of proceeds. Further orders addressed the sale of Property H, the division of net proceeds, and liability for any shortfall. The court also made provision for a Registrar to sign documents if the wife failed to comply with the sale of Property P, pursuant to s 106A of the *Family Law Act 1975*. Each party was to retain other property in their possession, joint bank accounts were to be divided equally, and each party was to be solely liable for liabilities encumbering property they received. The husband's application for a Departure Order was dismissed.
Orders
Orders of the court
Parenting Orders
1.
In relation to the time the husband spends with the children X born (omitted) 1999 and Y born (omitted) 2000, changeover shall occur at the wife’s home at the commencement of time and at an agreed location close to the intersection of the (omitted) and the (omitted) Roads at the conclusion of time, and failing agreement, at the (omitted) Service Station on the corner of (omitted) and (omitted), (omitted).
Property Orders
2.
Within 60 days (“the due date”) the wife shall pay to the husband the sum of $25,270 (“the payment”).
3.
Contemporaneously with the payment the husband shall relinquish all of his right title and interest in the property situate at and known as Property P in the state of Victoria being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the Property P property”).
4.
In the event that the whole of the payment has not been made by the due date the wife shall do all such acts and things and sign all such documents as may be necessary to place the Property P property on the market for sale (“the sale”) and upon completion of the sale the sale proceeds shall be distributed as follows:
(a) first to pay all costs and commissions of the sale;
(b) second to discharge the mortgage over the (omitted) property;
(c) third to make the payment to the husband plus interest at the rate of 8.5% per annum from the due date to the date of payment;
(d) fourth the remainder to the wife.
5.
Upon completion of the sale of the real property situate at and known as Property H in the State of Victoria being the whole of the land more particularly described in Certificate of Title volume (omitted) Folio (omitted) (“the Property H sale”) the net sale proceeds, if any, shall be divided between the parties as to 63% to the wife and 37% to the husband, and in the event that there is a shortfall between the net sale proceeds and the mortgage debt remaining, the liability for the remaining debt shall be divided equally between the parties.
6.
Should the wife fail to comply with paragraph 4 hereof then pursuant to s.106A of the Family Law Act 1975 a Registrar of the Federal Circuit Court of Australia at Melbourne shall be appointed to sign any and all such documents on her behalf as may be necessary to give effect to these orders, and the Registrar shall be satisfied as to his or her authority under this order upon the husband or his legal representative filing an Affidavit setting out the wife’s failure to comply.
7.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these any subsequent orders:
(a) each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders.
(b) monies standing to the credit of the parties in any joint bank account shall be divided equally between the parties;
(c) insurance policies remain the sole property of the owner named thereon;
(d) each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e) each party forgoes any claim they may have to any inheritances or superannuation entitlements to which the other party is entitled to either presently or in the future
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
8.
The husband’s application for a Departure Order contained in his Amended Initiating Application filed 23 January 2014 is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
While the major issues in this case have been set out above and will be dealt with each in turn, there are ancillary issues of disputed fact and legal argument which I will deal with before considering the substantive issues B to G above.1. The date of separation The husband’s evidence is that the parties separated under the one roof in July 2011 by mutual consent and he left the family home in December 2011. The wife claims that the parties separated under the one roof in 2005 or at latest in 2008, when the husband told the parties’ accountant in an email dated 25 November 2008 that he was considering resigning from the family business due to “irreconcilable differences” with the wife. In support of his claim the husband says that between 2005 and 2011, the parties shared the family home, operated joint accounts, cared for the children, bought a motor vehicle, refinanced the Property H property, and purchased the Property P property. Under cross-examination at trial Mr Irving conceded that the parties’ sexual relationship had ceased in about 2001 but denied that the marriage had finished at that time. His evidence was that the master bedrooms at the Property H, (omitted) and Property P properties were large enough to contain two separate queen-sized beds and that while the parties had slept separately they had occupied the same bedroom. That evidence was not contradicted at trial. In relation to the email sent to the parties’ then accountant in November 2008 which stated that he believed there were “irreconcilable differences” between him and the wife, the husband said he was referring to the business relationship between him and the wife and that he was considering separating the parties’ business and personal affairs at that time. He denied that that email indicated that the parties were separating in the marital sense. He further conceded that the wife had reverted to her maiden name at the end of 2008. I note that it was in 2008 that the wife gained her qualification as a (qualifications omitted) which meant that she was able to charge (omitted) for certain services. I note further that the name of the parties’ company was not changed from (business omitted) Pty Ltd to (business omitted) until early 2011. When it was put to him that the parties had not attended each other’s work functions or attended social functions as a couple since 2005, Mr Irving said that his memory for dates and places was “not my forte”. However later, he said that the last time he had been to one of the wife’s business functions was in about 2010 at a restaurant whose location he could not recall. He said that he had been to the wife’s family functions regularly until 2008 and that he had attended the wife’s niece’s 21st birthday celebrations in 2010. When it was put to him that that was “a bald faced lie” he stated that he had photographs to prove that he had attended those functions, although he did not have them with him as he was not expecting that question. He said that Ms Parkes rarely went to his family functions throughout the marriage.