LANO & LANO

[2020] FamCA 783

FAMILY COURT OF AUSTRALIA

LANO & LANO [2020] FamCA 783

FAMILY LAW – PROPERTY – Where the husband seeks a review of Orders by a Registrar dismissing an Application for consent orders due to lack of response to requisitions issued by the Court – Where the consent orders would result in the wife receiving 10-15 per cent of the value of the parties’ net assets – Where the wife agrees to the proposed consent orders – Where the husband has the care of the parties’ children – Court finds that the consent orders do not achieve a just and equitable outcome – Application dismissed.

Family Law Act 1975 (Cth) ss 75(2), 79(2)

APPLICANT: Mr Lano

RESPONDENT: Ms Lano

FILE NUMBER: SYC 2204 of 2020

DATE DELIVERED: 31 August 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 31 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Barber of M R Barber & Associates

THE RESPONDENT IN PERSON

Orders

1. The Application in a Case filed 17 August 2020 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lano & Lano has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2204 of 2020

Mr Lano

Applicant

And

Ms Lano

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an Application for a review of a Registrar’s decision dated 30 July 2020 in which an Application for consent orders filed on 9 April 2020 was dismissed. The reason for that dismissal was that responses to requisitions issued by the Court on 20 April 2020 had not been provided. In this matter, Mr Lano (“the husband”) has legal representation but Ms Lano (“the wife”) does not.

2. Having regard to the Affidavits of each of the parties and the solicitor for the husband, which have been filed in respect to the review Application, I am satisfied that, as a result of difficulties in communication, the requisition issued by the Court on 20 April 2020 was not received by the parties or the husband’s legal advisor.

3. Nonetheless, the information sought in the requisition is still relevant to the Court’s exercise of discretion as to whether or not the Application for consent orders filed on 9 April 2020 should be granted and orders made in accordance with that Application. The requisition dated 20 April 2020 sought the following information:

   a. An Affidavit from the Applicant setting out sufficient facts relating to the division of property to assist the Court to find that the proposed orders are just and equitable in the circumstances. Regard should be had to the requirements of the Family Law Act.

   b. Written confirmation from the Respondent confirming her agreement with the matter set out in the above affidavit.

4. The Affidavit of the wife filed 17 August 2020 satisfies me that the wife is in agreement with the proposed orders and that she wants the orders to be made in those terms. The wife states that she has not obtained, but does not seek to obtain, legal advice and, even if the consent orders are not made, she does not propose to commence litigation to further advance a claim for a different adjustment of the parties’ matrimonial property – other than that set out in the proposed consent orders. Despite the wife’s agreement with the proposed consent orders, pursuant to s 79(2) of the Family Law Act 1975 (Cth) (“the Act”), the Parliament has directed the Court that, before it approves an adjustment of property between parties to a marriage, it needs to be satisfied that the adjustment is just and equitable.

5. In the circumstances of this case, I cannot be satisfied that the adjustment set out in the proposed consent orders is just and equitable. In that respect, I have had regard to the rationale of the settlement as set out in paragraph 18 of the husband’s Affidavit filed 17 August 2020 as follows:

   I say that the agreement reached between Ms Lano and myself was based upon the following:

   i. In the interests of the care and welfare of [the parties’] children;

   ii. [The parties’] desire to maintain sense of normality in our childrens lives;

   iii. [The parties’] desire to avoid disruption in [the children’s] lives;

   iv. [The wife’s] intentionn to relocate to Town C without the children;

   iv. The childrens request to remain in their matrimonial home;

   v. The childrens request to remain at their current schools;

   vi. [The wife’s] desire that [the husband] be full time carer for the children

6. I also note that the rationale is agreed to be accurately stated in that Affidavit by the wife. Nonetheless, having regard to the relatively small amount that the wife would receive, I cannot be satisfied that the proposed settlement is just and equitable. In arriving at that conclusion, I have had regard to the following:

   a)The length of the parties’ marriage was approximately 17 years;

   b)The parties have two (2) children – one aged 13 years and the other aged 15 years;

   c)The children have been living with the husband since May of last year and it is proposed that the children continue to live with the husband in Sydney while the wife continues to live in Town C, New South Wales where she has moved to;

   d)The primary asset of the parties is a property located at D Street, Suburb B, New South Wales (“the Suburb B property”) worth approximately $800,000, although the value of that may have come down in the current COVID-19 pandemic due to the impact of the pandemic on the housing market;

   e)There is an outstanding mortgage on the Suburb B property of about $440,000, leaving a net value of approximately $360,000. That amount would be reduced further, of course, if there were costs incurred in relation to a sale;

   f)It is also proposed that the husband pay to the wife a lump sum of $25,000 and that the wife retain a motor vehicle which I have been advised is worth approximately $15,000. This would result in the wife receiving, from the property pool, about $40,000;

   g)In addition, the wife has superannuation worth about $80,000 and the husband has superannuation of about $136,000.

7. Assuming that each of the parties’ respective superannuation interests balance each other, although, I note that the wife has approximately $56,000 less than the husband, and just having regard to the real property and monies, including the motor vehicle, the wife would be receiving an amount of approximately $40,000 of net assets worth in the order of approximately $380,000. If one includes, in such assessment, the sum of $25,000, the value of the parties’ net assets becomes somewhere in the vicinity of $400,000. This, effectively, means that the wife would receive an adjustment in her favour of approximately 10 per cent of the value of party’s net property.

8. I accept that, in these proceedings, there would be a very significant s 75(2) adjustment in favour of the husband in circumstances where he has primary care of the children. However, the parties’ children are now aged 13 and 15 years and that responsibility for the children will not be one that the husband will have indefinitely. In the circumstances of a 17-year marriage, an adjustment in favour of the wife of only 10 to 15 per cent is, in my view, inadequate. On that basis, unfortunately, despite the parties’ desire, I cannot comfortably reach the determination that the settlement proposed would be just and equitable. I appreciate that the reasoning of the parties is, essentially, to provide to security to the parties’ children so that they can continue to live in their current home which is located near their school, friends and activities, as well as both the maternal and paternal grandparents.

9. I have indicated to the parties that the Court would be more comfortable, for instance, if there was some provision for the wife to receive a portion of the sale of the property, in the event that the property is sold at a time subsequent to the children moving out. However, the parties have not been able to reach an agreement in respect of that issue. In fairness to the parties, I note that the wife has not sought that outcome. Nonetheless, for reasons which I have set out, I cannot, in the circumstances of this case, be satisfied that the proposed terms of settlement represent a just and equitable adjustment of the parties’ interests. In that respect, I do not think there has been a sufficient distribution of the parties’ property to the wife, nor has there been provision in respect to her future needs, including when she is no longer in the workforce. On that basis, I dismiss the Application for review of the Registrar’s decision to dismiss the Application for consent orders filed 9 April 2020.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 31 August 2020.

Associate:

Date:  21 September 2020