LANE & JACKSON
[2013] FCCA 318
•28 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANE & JACKSON | [2013] FCCA 318 |
| Catchwords: FAMILY LAW – Property – long marriage – where husband sexually abused two of the four children from 2004 to 2008 – where wife found out about it in 2009 – where husband incarcerated – where property pool has continued to grow since separation – where wife has had the ongoing care of the children and maintained and expanded the property since separation – where no adjustment for future needs – where husband has been punished for his crimes – where care must be taken in ensure that a further punishment is not imposed in considering whether the orders are just and equitable – held 35% division in favour of the husband and 65% in favour of the wife is a just and equitable division of the property pool. |
| Legislation: Family Law Act 1975, Part VIII, ss.75, 78 and 79 |
| Stanford v Stanford (2012) 293 ALR 70 at [79] and [80] Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 at [39] G & G (1984) 9 Fam LR 969 |
| Applicant: | MS LANE |
| Respondent: | MR JACKSON |
| File Number: | DNC 198 of 2012 |
| Judgment of: | Judge L.Turner |
| Hearing date: | 20 February 2013 |
| Date of Last Submission: | 20 February 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 28 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Farmer |
| Solicitors for the Applicant: | Withnalls Lawyers |
| Counsel for the Respondent: | Mr Barry |
| Solicitors for the Respondent: | Cecil Black Family Lawyers |
PROPERTY ORDERS
That these Orders be read in conjunction with the consent property orders made on 20 February 2013.
That Orders 2 and 3 of the Orders of 20 February 2013 be discharged.
That simultaneously with the transfer of the Property T property pursuant to Order 1 of 20 February 2013 orders, the wife is to pay the sum of $540,960 to be paid as follows:
(a)$50,000 to the parties’ son [W].
(b)$490,960 to the husband.
That upon payment to the husband of monies pursuant to Order (3) and upon evidence received by the husband from the wife as to the costs of the valuations of the real estate, the husband is to immediately reimburse the wife for one half of the costs of such valuations.
That the figure of “35%” be substituted for “X%” in Order 13 of the
20 February 2013 orders.
That the wife retain the [O] shares.
IT IS NOTED that publication of this judgment under the pseudonym Lane & Jackson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNC 198 of 2012
| MS LANE |
Applicant
And
| MR JACKSON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are involved in a property dispute.
The wife is seeking a 90/10 division in her favour whereas the husband is seeking a 40/60 division in his favour.
Background
The wife is 49 and was born in East Timor.
The husband is 50 and was born in East Timor.
The parties married in 1983.
There are four children of the marriage [W] 25, [X] 23, [Y] 21 and [Z] 16.
The parties separated in April 2009 when the husband was arrested and subsequently incarcerated for sexual offences against [Y] and [Z].
The children remained with the wife after separation and have spent little time with the husband.
In July 2012 the parties divorced.
At the date of the hearing the husband was still incarcerated but hopeful of release within the next few months.
Upon his release the husband intends to live with family in Sydney.
Proposals
The wife is seeking a 90% division of the property pool in her favour, although the wife concedes that the range may extend to an 80% division in her favour based on the following adjustments:
a)5–10% adjustment on contributions between 2004 and 2009 due to the husband’s behaviour in sexually abusing [Y] and [Z];
b)15% adjustment for the wife’s post separation contributions; and
c)10–15% adjustment for the wife’s future needs.
This would leave the husband with a 10–20% division of the property pool.
The husband is seeking a 40% division of the property pool in his favour based on a 10% adjustment for the wife’s post-separation contributions.
Agreed orders
On the day of hearing the parties came to agreement on a number of issues including:
a)The transfer of Property T by the husband to the wife.
b)The wife deduct from monies ordered to be paid to the husband one half of the valuations costs.
c)The wife retain the Suzuki Swift and Nissan 350Z.
d)That the husband acknowledges receiving $50,000 for the legal fees by way of partial property distribution.
e)The husband retain the Nissan patrol.
f)The husband retain the $50,000 which was received by him as partial property settlement.
g)Parties retain personal items in their possession, including superannuation and bank accounts.
h)Parties be responsible for any debts in their names and are to indemnify the other in respect to such debts.
i)In the event Property L and Property C are sold, that the wife meet the capital gains tax, and in the event the sale does not take place within one year, then the husband receive a cash payment equivalent to the percentage division of the asset pool.
j)The wife retain all the real estate that is part of the property pool.
k)The wife retain her interest in the property at the [S] unit which was acquired post-separation.
l)The wife retain her interests in the Lane Family Trust and the Consolidated Lane Family Trust.
Agreed list of assets and liabilities
The property pool and its value is agreed as follows:
| Non Superannuation Assets | Value |
| Property T | $650,000 |
| Property B | $570,000 |
| Property H | $53,333 |
| Property L | $260,000 |
| Property C | $460,000 |
| Property M | $118,750 |
| Nissan 350 Z motor vehicle | $18,400 |
| Nissan Patrol motor vehicle | $18,600 |
| [O] shares | $2,000 |
| Total Agreed Non-Superannuation Assets | $2,151,083 |
| Liabilities | Amount |
| Mortgage on Property T | $8,000 |
| Mortgage on Property B | $250,000 |
| Mortgage on Property C | $252,000 |
| Anticipated CGT for Property L and Property C | $79,500 |
| Bank SA overdraft | $10,500 |
| Total Agreed Liabilities | $600,000 |
| Total Agreed Net Non-Superannuation Pool | $1,551,083 |
| Superannuation Assets | Value |
| [A] Fund | $47,659 |
| Total Agreed Superannuation Assets | $47,659 |
| TOTAL AGREED PROPERTY POOL | $1,598,742 |
Agreed property to be retained by the parties
The parties agree that the wife retain in her division of the property pool the following items:
| Assets to be retained by the wife | Value |
| Property T | $650,000 |
| Property B | $570,000 |
| Property H | $53,333 |
| Property L | $260,000 |
| Property C | $460,000 |
| Property M | $118,750 |
| Nissan 350 Z motor vehicle | $18,400 |
| [A] Fund | $47,659 |
| Total Assets to be retained by the wife | $2,178,142 |
| Liabilities to be met by the wife | Amount |
| Mortgage on Property T | $8,000 |
| Mortgage on Property B | $250,000 |
| Mortgage on Property C | $252,000 |
| Anticipated CGT for Property L and Property C | $79,500 |
| Bank SA overdraft | $10,500 |
| Total liabilities to be met by the wife | $600,000 |
| NET ASSETS RETAINED BY WIFE | $1,578,142 |
The parties agree that the husband retain in his division of the property pool the following items:
| Assets to be retained by the husband | Value |
| Nissan Patrol motor vehicle | $18,600 |
| NET ASSETS RETAINED BY HUSBAND | $18,600 |
An indication was not provided as to who would retain the [O] Shares valued at $2,000.
Issues
The issue that I am required to consider and determine is the percentage division of the property pool to the husband and to the wife and the amount of the cash payment to be made by the wife to the husband in order to give effect to the property division.
Evidence
In considering these issues I have had regard to:
a)the material as marked on the Court file;
b)previous orders;
c)the exhibits; and
d)the submissions of the parties.
Both parties are legally represented.
For the wife the following witnesses were called and were cross-examined:
a)the wife; and
b)the child [W].
For the husband the following witnesses were called and were cross-examined:
a)the husband; and
b)a friend of the husband Mr M.
I find all witnesses to be credible, although, as is often the case in this Court, some of the answers provided by parties were self-serving.
However the husband was somewhat disadvantaged as he was required to appear by telephone from prison as video link was not available.
Further it was clear from his evidence that he at times struggled to understand the questions, partly due to the environment in which they were being asked and also because of some language difficulties.
I find however that the disadvantages experienced by the husband in giving his evidence have not had an adverse impact on the husband in the presentation of his case and that a fair determination is still able to be made on the evidence available.
Findings of fact are made on the balance of probabilities, having regard to the evidence and in what follows statements of fact constitute findings of fact.
The law
In determining property matters consideration must be had to Part VIII Family Law Act 1975 and in particular ss.75, 78 and 79.
A clear framework exists in determining a property division.
The first question that must be asked as articulated by the High Court in Stanford v Stanford (2012) 293 ALR 70 at [79] and [80] is whether “it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.”
If answered in the affirmative, then the matter can proceed to a property division, applying the various principals.
Consideration must also be given as to whether a global or asset by asset approach is to be adopted.
The four step process is to be applied in accordance with the Full Court decision of Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 at [39] which can be summarised as follows:
a)identify and value, as at the date of hearing, the parties’ property, liabilities and financial resources;
b)identify and assess the parties contributions pursuant to s.79;
c)identify and assess the parties ongoing needs taking into account the relevant factors relevant under s.79 and s75(2);
d)consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
Care must be given to not adopting a strict mathematical approach in determining the alteration of property interests as discussed by Nygh J in G & G (1984) 9 Fam LR 969
Application of the law
The question to be considered as set out in Stanford
I find that this is a matter where it is just and equitable to determine a property division based on the following:
a)The parties were married for 26 years.
b)The parties separated in 2009 and divorced in 2012.
c)There is a substantial property pool capable of division.
d)The parties have agreed in principal to the property being divided, but require a determination of the percentage division.
As the question posed by Stanford v Stanford is in the affirmative, I will now proceed through the four step process in order to determine the percentage division.
Global or asset by asset approach?
The parties agree that any assets acquired by the wife post-separation, such as the [S] unit, are to be excluded from the matrimonial asset pool and that all assets acquired during the marriage are to be included in the asset pool.
In determining this matter, I have had regard to the parties’ positions and have considered the matter on a global approach taking into account the agreed list of assets and liabilities.
The application of the four step process as set out in Hickey
The property pool and future resources
The property pool has an agreed value of $1,598,742 as set out in the table at [16].
There is one issue however surrounding the property pool that needs consideration.
The husband in defending the criminal charges had access to $50,000.
The husband claims it was from the property pool, as it was from the sale proceeds of a property at Property G which was in the name of the wife and her brother.
Property G sold in 2009.
The wife maintains that although Property G was held in her name that her share belonged to the son [W], and as such the $50,000 paid out of the sale proceeds is owing to the son.
Despite who may be entitled to the money, the husband has agreed in the consent orders for the $50,000 to be considered as a partial property distribution.
An add-back of $50,000 has not been sought by the husband.
On that basis, and giving significant weight to [W]’s evidence on this issue, I find that the sum of $50,000 belongs to the son.
Subsequently I have ordered that the wife pay the son $50,000 from the amount payable to the husband by way of his property division to reimburse the son for the monies provided to the husband for the legal fees.
As to financial resources the wife has had access to monies from family trusts, and since separation has had access to this resource.
This is an issue which is considered in respect to the just and equitable division of the property pool.
Contributions
The parties agree that neither party had any assets at the commencement of the relationship.
The parties agree that as at 2004 the parties’ contributions were equal.
The wife maintains that the contributions between 2004 and 2009 were “discounted” or should be “disregarded” due to the husband’s behaviour and in particular the sexual abuse of [Y] and [Z].
As a consequence of this “discount” or “disregard” the wife states that an adjustment should be made in her favour of 5–10%.
The husband disputes this, stating that contributions were equal until 2009.
I find, having considered the evidence, that an adjustment cannot be made in the wife’s favour for the period between 2004 and 2009 based on the following:
a)Between 2004 and 2009 the parties continued with the family dynamics; similar dynamics to that which operated prior to 2004; where the wife operated the businesses and handled all the finances; whilst the husband worked in several jobs and spent time looking after the children’s day to day needs.
b)The wife did not become aware of the husband’s criminal behaviour until the husband was charged and convicted in 2009.
c)There is nothing in the evidence which suggests that during 2004, when the sexual misbehaviour commenced, until 2008 when the sexual misbehaviour ceased, that the wife’s contributions became more arduous due to the husband’s behaviour or that the husband’s actions negatively impacted on the property pool.
d)The evidence suggests the contrary, where during this time, the parties were able to retain and enjoy the financial benefits from the real estate acquired prior to 2004, as well as acquire another property in 2007.
I therefore find that as at the date of separation in 2009, the contributions of the parties were equal.
The wife seeks a post-separation adjustment for contributions of 15% as the wife has had the ongoing care of the children, which has been extremely difficult, especially with regard to the high needs of [Y] and [Z] due to the abuse, as well as being responsible for the preservation and improvement of the asset pool.
The husband is agreeable to a 10% adjustment to the wife for post-separation contributions.
I find, having considered the evidence, that it is appropriate to make an adjustment in favour of the wife of 15% based on the following:
a)I accept that the wife has made significant post-separation contributions as set out in her evidence in respect to the ongoing care of the children and the improvement, maintenance and preservation of the asset pool.
b)These contributions have resulted in the moderately large property pool which is now available for distribution.
c)Although the husband has been restricted by his incarceration, the husband has done very little post-separation to address the extensive emotional damage he has caused to the family, especially to the victims, [Y] and [Z].
In conclusion the evidence supports a 15% adjustment in favour of the wife in respect to contributions.
Future needs
The wife is seeking an adjustment in her favour of 10–15% for her future needs as she has the ongoing care of the children, with the youngest not yet 18 years, and must continue to deal with the fallout from the husband’s abuse of [Y] and [Z], and the impact this has had on the wife and the children’s standing in the local Timorese community.
The husband states that any adjustment to the wife must be balanced against his future needs as the husband has few skills, does not speak English well, has no assets of his own and may have difficulty in obtaining employment once released from prison.
I find, having considered the evidence that the future needs of the parties do balance out and as such, no adjustment is to be made in favour of either party.
My reasoning for this finding is based on the following:
a)[Z] will turn 18 in less than 18 months.
b)The wife has shown an aptitude to make wise investment decisions which has resulted in the parties acquiring a large property pool during the relationship and with the wife adding to her own personal wealth with her investments since separation.
c)The husband does not have the same aptitude and is unlikely to acquire the skill or the opportunity to have the same financial security in the future as that which is now available to the wife.
d)The husband has limited employment skills, which will result in his being engaged in unskilled work, with his job prospects questionable due to his prison record and his age.
e)The husband’s prospects of employment may be lessened upon his release as the husband will not be returning to Darwin but to Sydney, where obtaining employment may be more difficult.
f)The husband suffers depression which may also impact on his ability to be employed.
g)In any event it is unlikely that the husband will earn an income similar to that of the wife once employment has been obtained.
h)The wife, if the husband obtains employment before [Z] turns 18, will be able to apply for child support.
Because of the obstacles facing the husband in having to re-establish himself at the age of 50, I find that his future needs are equal to those of the wife.
Orders that are just and equitable
After applying the first three steps, the wife is to receive 65% of the property pool with the husband to receive 35%.
This equates to the husband receiving $490,960 after deduction of the $50,000 payment to the son and taking into account that the husband will retain the Nissan patrol worth $18,600.
The husband will then be required to reimburse the wife for one half of the valuation costs.
But does this division present a just and equitable division in all the circumstances?
This is such a tragic set of circumstances.
The parties, having escaped the hardships and political unrest of their home country of East Timor, worked hard together over many years to provide financial stability for their family in Darwin.
At a time when the parties should have been in a position to sit back and enjoy the fruits of their labour the husband destroys the family and the damages the life of two innocent young girls by engaging in highly inappropriate sexual behaviour.
It is not surprising that the wife feels that the husband should receive very little of the asset pool and is protective of the property acquired for the family.
But that is not how the law works.
The wife speaks of a just and equitable division.
This is a long marriage, and if it was not for the husband’s criminal behaviour, more than likely the parties would have received an equal division of the property pool.
Acknowledgment has been made as the wife’s vast post-separation contributions which has resulted in a significant adjustment in the wife’s favour of 15%.
Understandably the wife is incensed by the damage caused by the husband to the family unit.
But in considering whether a division is just and equitable, care must be taken to ensure that an adjustment is not made more as a punishment for poor immoral behaviour rather than a true just and equitable adjustment taking into account all of the circumstances in the matter.
The husband has been punished for his crimes.
The husband has served his sentence.
The children have received criminal compensation.
The husband must now live with the consequences of his actions.
The husband is unable to return to Darwin and his ability to
re-establish a relationship not only with his children, but with the Timorese community is in question.
The wife, despite the adverse conditions, has had significant financial benefit from both the property pool and her financial resources since separation.
With the provision of rent, living in an almost unencumbered property and running a business which has many side benefits the wife has maintained and expanded a significant property portfolio as well as experienced a higher than normal standard of living.
In addition the wife has had the opportunity to make property investments together with her family members.
A division of 65% of the property pool which equates to over a million dollars, as well as the post-separation acquisition of property and the financial resources available to the wife from the family trusts, will enable the wife to retain and maintain a significant amount of the property pool and together with her business savvy will provide the wife with the opportunity to improve her financial position in years to come.
The husband is not in the same position as the wife and never will be.
Aged 50, with little education and few employment skills, no superannuation, a limited understanding of English, a prison record and commencing life in a new city, the husband will struggle to survive and is unlikely to improve his financial situation over time.
A division of 35% which is in excess of $490,000 to the husband will provide the husband with an opportunity to re-establish his life and acquire a property to live in.
I therefore find that the division of 65/35 in favour of the wife is a just and equitable division.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge L.Turner
Date: 28 May 2013
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Abuse of Process
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Stay of Proceedings
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Res Judicata
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