FAMILY COURT OF AUSTRALIA
| LAO & LAO AND ANOR | [2017] FamCA 917 |
| FAMILY LAW – PROPERTY – Where competing applications for property adjustment – Where issues as to the husband’s non-disclosure and late disclosure – Where by reason of funds advanced by the husband’s family contributions to separation be regarded as favouring the husband – Where post separation contributions by the wife lead to conclusion that contributions to trial to be regarded as equal – Where adjustment in favour of wife under s 75(2) – Where overall property pool to be divided 60/40 in favour of wife. FAMILY LAW – CHILD MAINTENANCE – Where husband resident of Country R – Where Child Support Scheme not apply – Where consideration of the children’s proper needs – Where consideration of the parties’ capacity to contribute – Where periodic liability of the husband assessed – Where in the circumstances appropriate for periodic liability to be assessed as discounted capitalised sum and for order for lump sum child maintenance. FAMILY LAW – SPOUSE MAINTENANCE – Where discussion of applicable principles – Where wife unable to support herself adequately – Where consideration of wife’s reasonable needs in context of property orders to be made – Where husband has clear capacity to pay periodic spouse maintenance – Where appropriate in circumstances for order for spouse maintenance for closed period. |
| Family Law Act 1975 (Cth) ss 66B, 66H, 66J, 66K, 72, 74, 75(2), 79, 79(1), 79(2), 79(4) Limitation Act 1969 (NSW) Family Law Rules2004(Cth) |
| AJO & GRO [2005] FamCA 195 Teal & Teal [2010] FamCAFC 120 |
| APPLICANT: | Ms A Lao |
| FIRST RESPONDENT: | Mr B Lao |
| SECOND RESPONDENT: | Ms C Lao |
| FILE NUMBER: | PAC | 4992 | of | 2014 |
| DATE DELIVERED: | 14 November 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 21, 22, 23 and 25 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dura |
| SOLICITOR FOR THE APPLICANT: | Cameron Gillingham Boyd |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Pierce |
| SOLICITOR FOR THE FIRST RESPONDENT: | Cambridge Lawyers |
| SECOND RESPONDENT – SELF REPRESENTED LITIGANT: | Ms C Lao in person |
Orders
Property adjustment
It is ordered:
That the property of the parties as set out in the “Schedule to Orders” set out below is to be divided in the proportions 60 per cent to the wife and 40 per cent to the husband.
In order to give effect to Order (1) above:
That the husband…
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- AGLC
- Lao and Lao & Anor [2017] FamCA 917
- Case
- [2017] FamCA 917
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate division of the parties' property pool, taking into account post-separation contributions by the wife which led to a conclusion of equal contributions to trial. Further, the court needed to assess the children's needs and the parties' capacities to contribute to child maintenance, particularly given the husband's residency in Country R where the Child Support Scheme did not apply. Finally, the court had to consider the wife's ability to support herself and her reasonable needs in the context of the property orders, and the husband's capacity to pay spouse maintenance.
Foster J reasoned that the wife's post-separation contributions warranted an equal division of contributions to trial. An adjustment in favour of the wife was made under s 75(2) of the relevant Act, resulting in an overall property pool division of 60 per cent to the wife and 40 per cent to the husband. For child maintenance, the court considered the children's proper needs and the parties' capacities, assessing a periodic liability for the husband which was then discounted and capitalised into a lump sum. Regarding spouse maintenance, the court found the wife unable to adequately support herself and ordered a closed period of periodic payments, also to be paid as a lump sum.
The court ordered a division of property with the wife receiving 60 per cent and the husband 40 per cent, detailing specific transfers of property interests and mortgage discharges. The husband was ordered to pay a lump sum of $171,000 for child maintenance and $6,500 for spouse maintenance. The wife was granted a charge against the husband's interest in a property in Country O to secure these payments, with liberty to register such claim, charge, or encumbrance. In default of the husband's compliance, the wife was appointed Trustee for Sale of the Country O property, with the net proceeds to be applied towards satisfying the outstanding property adjustment, child maintenance, spouse maintenance, and legal fees, with any balance to be paid to the husband.
Orders
Orders of the court
Property adjustment
It is ordered:
1.
That the property of the parties as set out in the “Schedule to Orders” set out below is to be divided in the proportions 60 per cent to the wife and 40 per cent to the husband.
In order to give effect to Order (1) above:
2.
That the husband do all things necessary within two months from this date to transfer to the wife his interest in the property D Street, Suburb E being land in Folio Identifier ...
3.
That concurrently with the transfer provided for in Order 2, the wife do all things necessary to discharge the existing mortgage encumbrance secured on property D Street, Suburb E in favour of the National Australia Bank.
4.
That concurrently with the transfer provided for in Order 2, the Second Respondent Ms C Lao shall do all necessary things and sign all necessary documents to facilitate a discharge of the second mortgage registered number … presently registered over the property D Street, Suburb E being land in Folio Identifier ...
5.
That within two months from this date the wife sign all necessary documents provided to her by the husband so as to effect a transfer of her interest in the property at F Street, City G to the husband.
6.
That concurrently with the transfer provided for in Order (5), the husband do all things necessary to procure a discharge of the mortgage presently secured over the property at F Street, City G in favour of the H Bank.
7.
That within three months from this date the husband shall pay to the wife by way of further property adjustment the sum of $287,106.00.
Child Maintenance
8.
That the husband pay by way of lump sum child maintenance for the children of the marriage, J born … 2000, K born … 2001, L born … 2006 and M born … 2009, in the sum of $171,000.00 within three months from this date.
Spouse maintenance
9.
That the husband pay by way of spouse maintenance for the wife the sum of $250.00 per week for a period of 26 weeks and that such payments be made by way of a lump sum payment to the wife of $6,500.00 within three months from the date of these orders such payment to be made to the wife or as she may otherwise direct in writing.
Enforcement
10.
That the wife shall have a charge against the husband’s interest in the property at N Street, Country O to the extent of the monies or part thereof outstanding to her from time to time pursuant to Orders (7), (8) and (9) and shall be at liberty to register against the title of the property at N Street, Country O such claim, charge or encumbrance that she may be entitled at law or in equity in Country O.
11.
That in default of the husband’s compliance with Order (7), (8) or (9) or any of them above, the wife is hereby appointed Trustee for Sale of the property at N Street, Country O for the best price reasonably obtainable and the property shall vest in the wife for that purpose and the wife shall sell the property for the best price reasonably obtainable and after payment of selling costs and discharge of mortgage the net proceeds of sale shall be paid as follows:
(a) In default of the husband complying with Order (7) (Property Adjustment) a sum payable to the wife that will result in the wife receiving overall 60 per cent of the property identified in the Schedule to these orders as adjusted by reference to the net proceeds of sale of the Country O property and in accordance with the orders above.
(b) In default of the husband complying with Order (8) (Child Maintenance) of these orders, the sum of $171,000.00 payable to the wife.
(c) In default of the husband complying with Order (9) (Spouse Maintenance) of these orders, the sum of $6,500.00 payable to the wife.
(d) In payment to the wife of her reasonable legal fees incurred in Country O or otherwise in implementation of this order.
(e) In payment of the balance then remaining to the husband.
Schedule to Orders
Husband N Street, Country O $ 1,401,110.00
Husband D Street, Suburb E $ 735,000.00
Joint F Street City G $ 177,856.00
Husband P BankAccount $ 150.00
Husband Standard Chartered Account …07 $ 4,318.00
Wife NAB account …70 $ 1,039.00
Wife NAB account …50 $ 2,376.00
Wife NAB account …84 $ 440,766.00
Wife Motor vehicle $ 18,200.00
Wife CBA account …30 $ 1,662 .00
Husband Q Bank account …07 $ 6,659.00
Husband Rental Bond $ 27,746.00
Husband Q Bank Term Deposit $ 3,108.00
Husband NAB account …21 $ 3,000.00
$ 2,822,990.00
Liabilities
Joint Mortgage City G $ 35,636.00
Husband Mortgage Country O $ 653,457.00
Husband Mortgage Suburb E $ 350,063.00
Husband Rental Bond Country O $ 6,852.00
$ 1,046,008.00
Superannuation:
Husband MLC Wrap Super $ 101,000.00
Husband Country R Super Fund $ 15,628.00
Husband Country O Super $ 1,500.00
Wife Country O Super $ 2,448.00
$ 120,576.00
Note: The form of the order is subject to the entry of the order in the Court’s records.
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
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