Kessler & Kessler
[2021] FedCFamC1F 226
•12 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kessler & Kessler [2021] FedCFamC1F 226
File number(s): PAC 68 of 2018 Judgment of: CAMPTON J Date of judgment: 12 November 2021 Catchwords: FAMILY LAW – PROPERTY – Final orders made by consent – Where parenting and property proceedings have been on foot for some years – Parenting matters previously settled by consent – Where the parties presented terms of final consent orders at trial providing for the division of their property to be effected by the Court – Orders sought by consent determined to be just and equitable in all of the circumstances – Where a single pool approach is appropriate Legislation: Family Law Act 1975 (Cth) Cases cited: Stanford & Stanford (2012) 87 ALJR 74 Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 8 - 12 November 2021 Place: Sydney Counsel for the Applicant: Mr Batey Solicitor for the Applicant: Campbell Paton & Taylor Counsel for the Respondent: Mr Johnston Solicitor for the Respondent: Shedden & Associates ORDERS
PAC 68 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KESSLER
Applicant
AND: MR KESSLER
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
12NOVEMBER 2021
THE COURT ORDERS THAT:
1.By consent, orders are made in accordance with Exhibit K as amended.
2.In the event the parties require further relief by way of enforcement or implementation of the Orders, an appropriate application is to be filed in accordance with the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth).
3.The wife’s relief for non-periodic child support departure and any remaining relief for periodic spouse maintenance is withdrawn and dismissed.
4.All outstanding application and responses to applications otherwise are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kessler & Kessler has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J
The parties have been engaged in some long running litigation as to parenting and financial matters of significant intensity and cost over a number of years. To the credit of the parties and their legal representatives, parenting orders were made on a consensual basis on 10 November 2021.
As to the financial proceedings, the parties married on 11 November 2000 and effected a separation in or about mid-June 2014 when the husband left the home. The four children of the marriage have been the subject of these proceedings and the younger two, W and X, the subject of the consent orders made in the course of this trial.
Subsequent to the separation between the parties, the husband commenced to reoccupy the parties’ home at C Street, Suburb D (“the Suburb D Property”) for an extended period in 2016 and on 15 August 2016 the wife and the four children left the home to reside in a refuge.
The parties have identified their property on a consensual basis by way of the document now being Exhibit G3. The five pieces of real property forming part of their asset pool are currently the subject of updated valuations. It was uncontroversial during the trial that the net pool of property and superannuation of the parties may be in the range of $10 million. It is agreed between the parties that a single pool approach to the adjustment of their property interests by way of superannuation and non-superannuation property achieves the mandate set out at section 79(2) of the Family Law Act 1975 (Cth) (“the Act”).
The fact that the parties have been engaged in this litigation and that this would be the fifth day of the final trial event, coupled with the calibre of counsel retained by each party for the purposes of the trial, in and of itself may be considered sufficient to warrant that the proposed consent financial orders are just and equitable and hence satisfy the section 79(2) mandate.
As identified in submissions by learned counsel for the wife, the husband made initial direct financial contributions to the relationship which were superior to those of the wife. His pre-marriage property at the Suburb D Property remains a primary piece of property for the purposes of the trial, and has been a pivot securing the borrowings that enabled the acquisition and maintenance of some of the later investment properties that the parties now hold.
There is little doubt that the husband would achieve some contribution finding in his favour arising from the fact and use of the Suburb D Property over the course of the relationship.
After separation the husband received an inheritance from his late mother’s estate. One part of that inheritance was his half-interest in the property at F Street, Suburb G. It remains in specie a significant portion of the current property of the parties. He additionally received the benefit of an inheritance from his late father’s estate that also remains in specie as part of the current property of the parties.
To the parties’ credit, they agreed that during the period of cohabitation, they equally contributed within the marriage dynamic and within their respective spheres.
Following separation, the children were primarily cared for by the wife until the events of 31 January 2019 and subsequent orders made by the Court shortly thereafter, placing the children in the care of the husband. The children have since remained primarily in the husband’s care, with the older two children at various times finding their way between the parties’ households.
An investment property of the parties at Suburb H was sold in October 2019. There has been distributions of property for the benefit of each of the parties over the course of the litigation.
The husband, to his credit, recently on 3 August 2021 agreed to a spouse maintenance order of $800 per week to the wife, which is assisting in her current rental costs.
Although I had not heard all of the evidence, I agree with the submissions of learned counsel for the wife that it was likely that a contribution weighting from equality would fall in the husband’s favour up to the date of the hearing
Again, without hearing all of the evidence, the wife’s income-earning capacity is likely to be in the range of $35,000 to $45,000 per year, post the settling of the current COVID events ravaging the community. The husband has a significantly greater income-earning capacity identified by way of his taxation returns, likely to be in the range of $250,000-odd per year.
Mr Batey for the wife has correctly identified the terms of the parenting orders that have been made regulating both W and X’s care going forward.
I am satisfied by Exhibit J that the superannuation trustee is on notice as to the making of a proposed superannuation splitting order.
The High Court in Stanford & Stanford (2012) 87 ALJR 74 observed that it is necessary for me to be satisfied that justice and equity will be achieved as part of the adjustment process pursuant to s 79 of the Act. I find that the requirements identified by the High Court are readily satisfied in this matter, having regard to the long marriage between the parties, the myriad of contributions they have made over that period, the contributions that have been made post-separation and adjustments being made thereto, the fact of the parties’ marriage having broken down and they are now living apart, the necessity for the title of real property needing to be changed, and each of the parties having invoked the s 79 jurisdiction seeking orders for property settlement, which they agree are necessary.
Both parties submitted, and I accept, that the orders sought result in an equalisation of the parties’ total asset pool between them.
In all of the circumstances, I am satisfied that the orders to be made are just and equitable.
ORDERS DELIVERED
Mr and Ms Kessler, congratulations on achieving a resolution of what has been a very difficult piece of litigation for each of you. I am aware that achieving compromise has been hard. I hope that what you have achieved over the days of the trial will assist each of you and the children to get on with your lives. The Court expresses its gratitude to your legal representatives for the manner in which they conducted the trial, and for their role in securing the settlements reached.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 29 November 2021
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