Little and Robson
[2016] FCCA 551
•21 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LITTLE & ROBSON | [2016] FCCA 551 |
| Catchwords: FAMILY LAW – Property proceedings. |
| Legislation: Family Law Act1975, s.79 |
| Cases cited: Stanford & Stanford [2012] HCA 52 |
| Applicant: | MR LITTLE |
| Respondent: | MS ROBSON |
| File Number: | NCC 1307 of 2009 |
| Judgment of: | Judge Myers |
| Hearing dates: | 17 February 2015, 18 February 2015, 19 February 2015 and 21 July 2015 |
| Date of Last Submission: | 6 November 2015 |
| Delivered at: | Newcastle |
| Delivered on: | 21 January 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Joan Pierpoint & Associates |
| Counsel for the Respondent: | Mr Duane |
| Solicitors for the Respondent: | Flintoff Lawyers |
ORDERS
The court finds it is not just and equitable to make a property settlement order.
The husband’s application for property settlement pursuant to section 79 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Little & Robson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1307 of 2009
| MR LITTLE |
Applicant
And
| MS ROBSON |
Respondent
EX TEMPORE`REASONS FOR JUDGMENT
These are proceedings for a property settlement between the applicant husband, Mr Little and respondent wife, Ms Robson. The husband, in essence, seeks the following orders as set out in the husband’s outline of case document, namely:
a)the wife pay to the husband the sum of $799,000 within 42 days;
b)orders providing for the sale of real property in the name of the wife from which the said sum of $799,000 is to be paid to the husband where the wife fails to make payment within the prescribed 42-day period;
c)the wife pay the husband’s costs, and;
d)each party otherwise retain all property in their respective possessions or control.
In response the wife seeks orders that the husband’s application for property adjustment be dismissed and that the husband pay the wife’s costs.
The court has read and considered the following documents relied upon on by the husband, namely:
a)affidavits of the husband, sworn 22 October 2013 and 9 January 2015;
b)financial statement of the husband, sworn 18 December 2012;
c)affidavit of Mr K, filed 8 November 2013;
d)outline of case document, dated 13 February 2015;
e)written submissions of the husband, filed 18 August 2015, and;
f)written submissions in reply, filed 6 November 2015.
The court has read and considered the following documents relied upon by the wife, namely:
a)second amended response, dated 11.4.2014;
b)financial statement, dated 17 December 2014;
c)affidavit of the wife, dated 17 December 2014;
d)affidavit of Mr S, dated 14 January 2015;
e)outline of case document;
f)written submissions of the wife, received 7 October 2015.
The court has read and considered those documents tendered during the proceedings, forming exhibits A through to N and has heard and considered the parties’ evidence given during cross-examination.
By way of background, the husband was born on (omitted) 1956 and was aged 58 years at the time of the hearing and the wife was born on (omitted) 1955 and was aged 59 at the time of the hearing. It appears as an agreed fact in the proceedings that the parties commenced cohabitation in or about (omitted) of 1995. At about that time, the wife was working at (employer omitted) and also working as a (occupation omitted) with the (employer omitted). The husband at that time was working in his own business being that of a (business omitted).
The (business omitted) was held by the husband in a corporate structure being that of Mr Little Proprietary Limited trading as (business omitted). There are no children of the parties’ relationship, although the husband has three children and the wife two children of separate relationships. On (omitted) 1998 the parties married one another in a ceremony in (country omitted). At the time of the commencement of the parties’ relationship, the husband held the following property:
a)shareholding in Mr Little Proprietary Limited;
b)real estate situated at known as Property W;
c)an interest in the Little Family Trust;
d)a tractor;
e)(omitted) shares;
f)superannuation;
g)a life insurance policy and;
h)(livestock omitted).
At the commencement of the parties’ relationship, the wife held the following property:
a)rural property situated at known as Property R;
b)a Toyota Camry motor vehicle;
c)a tractor and;
d)(livestock omitted).
In submissions for the wife, Mr Duane of counsel suggested that the husband’s financial position was one where at the commencement of the parties relationship the husband had assets totalling $125,236.00 and debts totalling $177,452.65. It was further submitted by counsel for the wife that she held assets totalling $274,000.00 and liabilities totalling $60,000. The husband suggests in this outline of case document the husband’s and wife’s assets and liabilities at the commencement of the parties’ relationship.
Having regard to the affidavit evidence of the parties, the documents tendered and the evidence of the parties given during cross-examination, the court is not able to make findings that the figures suggested by counsel for the wife are correct or any findings, independently, as to the totality of the parties’ assets and liabilities at the commencement of the parties’ relationship. The court notes the recitals G, H and I contained within the binding financial agreement dated 13 January, 2009, forming exhibit B in the proceedings do not provide a value as to the assets and liabilities of the parties at the commencement of their relationship.
In on or about early 1996, the wife commenced working with the husband in (business omitted) and in 1996 took up working in what the court will describe as the parties’ (omitted) business as a (occupation omitted). At the commencement of cohabitation, the wife’s two children then aged 6 and 7, lived with the parties and spent alternate weekends with their father and the father’s three children then aged 18, 16 and 14, lived with their mother with the exception of the husband’s then 14 year old daughter, A, who lived the parties six months on and six months off. All of the parties’ children have now reached the age of 18 years.
In submissions for the husband, his counsel suggested that the parties commenced their relationship each with a parcel of real estate and during the next 11 years, amassed a considerable number of real properties. Counsel for the husband later submitted that it would have been clear to anybody looking at the situation the parties had done extremely well in managing the (omitted) business and growth of their assets.
The court accepts the parties did just that, including subdividing land owned by the Little Family Trust; raising (livestock omitted); purchasing a significant number of real properties; developing the (business omitted) site adjoining (omitted); developing land at Property C1 & C2, (omitted) that included renovating an existing cottage and subdividing a block of land off the lot; leasing 400 acres at Property T for the purposes of running (livestock omitted); establishing corporate entities and commencing partnerships for the purchase of (business omitted); and the establishment of a (omitted) business.
The parties themselves enjoyed personal success with the wife having won the New South Wales (business omitted) of the year in 1998 and then in 1999, the (business omitted) of the year. The husband was a well-respected business leader within his community, having been the president of the (omitted) for four years.
The wife alleged the husband perpetrated family violence upon her in the relationship namely that the husband had punched her unconscious, slapping her and kicking her out of bed. At paragraph 30 of the husband’s affidavit, he admits to having ever slapped the wife once. The husband admits to family violence. The court will determine whether family violence made the wife’s contributions more arduous once the court determines the initial question to be addressed in this case, namely whether it is just and equitable to make an order for adjustment of property between the parties.
It is an agreed fact in the proceedings that separation took place on or about 21 June 2007. Following separation, the parties continued to operate the (omitted) business in (omitted) and (omitted). The evidence of the parties is suggestive of this being a particularly difficult time with the wife raising significant complaint against the husband about expenditure from the business and that the husband had failed to keep the wife advised as to the finances of the business.
The wife gives evidence of having suffered depression following separation. On 7 May 2008, the husband terminated the wife’s employment with (business omitted) giving her five weeks’ pay. A copy of the letter signed under the hand of the husband to the wife is annexed to the wife’s affidavit and marked with the letter C. The wife subsequently sought advice from Byrnes & Cox Lawyers and the husband ultimately engaged Joan Pierpoint & Associates lawyers.
The husband and wife commenced negotiations that resulted in them entering into a binding financial agreement on 13 January 2009. The binding financial agreement was executed as a deed and recites the parties’ agreement as to the value of the property and liabilities which were as follows:
a)wife’s superannuation, $60,000;
b)husband’s superannuation, $60,000;
c)Property R in the name of the wife, value $700,000;
d)Property W in the name of the husband, $350,000;
e)Property H jointly owned, $290,000;
f)Property A jointly owned, at $280,000;
g)liabilities on Property H $200,000;
h)liabilities on Property A $200,000;
i)Property U, jointly owned, value $300,000, liability $200,000;
j)Property I(1), jointly owned, at value $550,000, liability $320,000;
k)Property I(2), jointly owned, value $835,000, liability $557,000;
l)Property I(3), (omitted), jointly owned at $700,000 value, liability $350,000;
m)Property I(4)(a) & I(4)(b), jointly owned, value $500,000, liability $357,000;
n)Property I(5), jointly owned, at value $450,000, liability $327,000;
o)Property Y, owned by an entity, (omitted) Pty Ltd, value $750,000, liability $700,000;
p)Property I(6), owned by (omitted) Pty Ltd, value $350,000, liability $400,000;
q)Property M, owned by Mr Little Proprietary Limited, value $400,000, liability $400,000;
r)Property C(1), owned by Mr Little Proprietary Limited, value $430,000, liability $174,000;
s)Property L, owned by Mr Little Proprietary Limited, value $230,000, liability $243,000;
t)Property C(2), owned by Mr Little Proprietary Limited, value $340,000, liability $206,000;
u)(business omitted) owned by (omitted) Pty Ltd, value $300,000, liability $300,000;
v)(business omitted) owned by Mr Little Proprietary Limited, value $825,000, liability $100,000;
w)(business omitted) owned by (omitted) Pty Ltd, one half share being worth $200,000, liability of the said half share, $100,000.
Pursuant to the binding financial agreement, the wife retained the following properties:
a)Property H, valued at $290,000;
b)Property I(4)(a) & I(4)(b), valued at $500,000;
c)Property I(6), valued at $350,000;
d)Property I(1), valued at $550,000;
e)Property R, valued at $700,000.
The wife retained her superannuation, furniture and furnishings and a BMW motor vehicle. The wife was required, pursuant to the binding financial agreement, to take on debt totalling some $600,000.
At paragraph 36 of the husband’s affidavit, he effectively complains that the binding financial agreement saw him take some 4.5 million dollars worth of debt. The husband did not set out that he also received the following properties pursuant to the binding financial agreement, being:
a)Property W, value $350,000;
b)Property A, $280,000;
c)Property U, valued at $300,000;
d)Property I(1), valued at $550,000;
e)Property I(2), valued at $835,000;
f)Property I(3), valued at $700,000;
g)Property I(5), valued at $450,000;
h)Property Y, valued at $750,000
and control ownership of a company that also owned the following properties:
a)Property M, $400,000;
b)Property C(1), $430,000;
c)Property L, $230,000;
d)Property C(2), at $340,000;
e)(business omitted), $300,000; (business omitted), $825,000;
f)and a half share of (omitted) Pty Ltd owning (business omitted) worth $200,000.
Transfer of the properties and debt refinancing pursuant to the binding financial agreement took place on or about 9 February 2009. The effect of the agreement saw the husband take $6,940,000 worth of property, excluding super, furniture and furnishings and refinanced into his name some $4.5 million debt. In effect, the husband received net of debt property worth approximately $2,400,000. The wife received some $2,390,000 worth of property and refinanced debt of some $600,000. In the effect, the wife received property, excluding her motor vehicle, superannuation, furniture and furnishings, worth $1,790,000.
The husband gives evidence, at paragraph 37 of his affidavit, that in February 2009, he went to the (omitted) Bank to negotiate to refinance the debts in order to carry out his obligations pursuant to the binding financial agreement. Little evidence as to the husband’s negotiations with (omitted) Bank is detailed by the husband. The husband states, at paragraph 37 of his affidavit:
The (omitted) Bank would not agree to give me long-term residential and commercial loans. It would only give me a facility for two years.
The husband has not detailed what was said using direct speech when conversations took place with whom on behalf of the (omitted) Bank, the husband had the conversation. The husband gives no details of any other inquiries he made with other financiers of any type. The husband suggests that “they” (which the court assumes the husband to mean (omitted) Bank) required a property that his father owned to be put into the husband’s name. The husband offers no hint or even suggestion as to why the (omitted) Bank requested this. What is apparent is that the husband entered into a bills facility with the (omitted) Bank for a two-year period. It is apparent that the husband had previously had bills facilities with the (omitted) Bank, evidenced by the husband’s evidence at paragraph 42 of his affidavit, that states:
I had assumed the (omitted) Bank would roll over the commercial loans as had been the case for the past 10 years.
Immediately following paragraph 37 of the husband’s affidavit the husband refers to negotiations with the (omitted) Bank in 2008 at paragraph 38 that states:
Mr P, my bank manager, said to me, “Reduce your debt levels; sell some properties.” They then refused to renew the two-year loan facility and forced the debt to overdraft, earning themselves 15 per cent interest and penalty interest instead of 6 per cent.
It is not clear when Mr P had a discussion with the husband as outlined at paragraph 38. The refusal to renew the two-year loan facility must, however, have taken place not earlier than February 2011, being the date on which the bill facility expired. At paragraph 41 of the husband’s affidavit he deposes that his financial situation unravelled at a time when the first global financial crisis was starting to erupt, setting out that (omitted) Bank in the (country omitted) collapsed in September 2008, and in October 2008 the Rudd government announced it would guarantee bank deposits and at Christmas 2008, introduced an economic stimulus package to try and save the Australian economy.
The husband divided his assets with the wife pursuant to the binding financial agreement that was not executed until January 2009. The husband was at that time appraised of the economic climate in which he divided up his assets with the wife. At paragraph 42 of the husband’s affidavit, he suggests he was forced to sell properties on a hard market and, at the direction of Mr P of (omitted) Bank in the two years following the refinance at settlement in February 2009, he sold four properties.
The husband’s evidence at paragraph 40 to the effect that he was forced to sell properties is in contradiction of the husband’s evidence at paragraph 37 where he sets out that the (omitted) Bank gave him a two-year loan facility. The figures provided by the husband in respect of the sale of the four properties reveal that the valuation assigned to the properties in the binding financial agreement were not significantly dissimilar.
a)Property A, was valued in the binding financial agreement at $280,000 and sold for $281,000;
b)Property U, was valued in the binding financial agreement at $300,000 and sold for $300,000;
c)Property C(2), was valued in the binding financial agreement at $340,000 and sold for $350,000; and
d)Property I(3), was valued in the binding financial agreement at $700,000 and sold for $625,000.
Probably the most critical piece of information as to the demise of the husband’s financial position from what it was at February 2009 is found at paragraph 43 of the husband’s affidavit. It reads:
I did not do anything about refinancing at that stage because I had assumed (omitted) Bank would roll over the commercial loans as had been the case for the previous 10 years.
It was the husband’s choice in the two years that followed the refinance in February 2009 to move away from (omitted) Bank to another lender or seek to refinance the loans to a permanent facility. Instead, the two-year facility expired and the husband’s assumptions about the facility being rolled over were proved wrong. It is not controversial that the husband suffered a significant reduction in his overall wealth as a result of his default with the (omitted) Bank and the bank then taking action to secure its debts and exercise its power of a sale over the various properties the husband had provided (omitted) Bank as security.
Meanwhile, the wife, without knowledge of the husband’s dealings with (omitted) Bank, moved on with her life, purchasing a property at Property G, and thereafter renovated the property, engaging (omitted) Pty Ltd to carry out renovations. In 2010, the wife purchased a property at Property E, with a friend, Mr A, as to a 51 per cent share to the wife and a 49 per cent share to Mr A as tenants in common.
In early 2010, the wife purchased the management rights to the (omitted) Holiday Apartments. The management rights required the wife to live at an apartment in the complex and to act as live-in manager. The wife paid $1,300,000 for the management rights business and an apartment within the complex that the wife later sold in 2014 for $1,350,000. In 2012, the wife sold the Property R property and ultimately sold the BMW motor vehicle, trading it in on a (omitted) Mercedes Benz motor vehicle.
The wife currently works as a (occupation omitted) and the husband manages his (omitted) business. Ultimately, a dispute arose between the parties whereby the husband sought payment from the wife in the sum of $10,648.88, allegedly owing pursuant to the binding financial agreement arising from land tax, commencing proceedings before the court for payment.
The wife, without disclosure, discovery or otherwise requiring a financial statement be filed by the husband, sought the binding financial agreement be set aside. The husband ultimately consented to the wife’s application. The court finds the current assets and liabilities of the parties now, nearly some seven years from the date at which the parties divided the assets between them as follows:
Assets of the husband:
a)(omitted) Bank, $1000;
b)(omitted) life insurance policy portfolio plan, $22,842;
c)(omitted) life insurance, $18,570;
d)1334 (omitted) shares; furniture and effects, $5000;
e)(business omitted) and (business omitted), $1,050,000.
Husband’s assets $1,105,683.
Assets of the wife:
a)Property G, $550,000;
b)Property I(1) at $600,000;
c)Property I(4)(a) & I(4)(b), $500,000;
d)Property I(6), $320,000;
e)Property E, a 51 per cent share, $400,000;
f)(omitted) Mercedes motor vehicle, $16,000;
g)household contents, effects and furnishings, $10,000;
h)savings (omitted) Bank rental account, $3500;
i)(omitted) Bank everyday savings account, $4000;
j)(omitted) Bank commission account, $8000.
Wife’s assets $2,411,500.
Assets of the husband and wife combined: $3,517,000.
Add backs:
a)wife’s legal fees paid, $39,325;
b)husband’s legal fees paid, $32,230.
Liabilities for the husband are as follows:
(a)(omitted) Bank account (omitted), $96,000;
(b)(omitted) Bank account number (omitted), $53,000;
(c)Personal loan from Mr L, $58,000;
(d)Mr M personal loan, $50,000;
(e)Little Superannuation Fund, $135,000;
(f)Trade creditors, $15,000;
(g)(omitted) Mastercard, $9,900;
(h)Debts to the ATO, $47,300;
(i)Personal ATO debt, $6,600.
Total debt: $471,546.
Liabilities for the wife are as follows:
(a) Mortgage Property I(1), $350,000;
(b) Income tax liability 2014 tax year, $28,000.
Total liabilities: $378,000.
Liabilities of the husband and wife combined: $849,546.
Superannuation of the husband:
a)Little Self-Managed Superannuation Fund, (omitted), $16,092;
b)loan to (omitted) Pty Ltd, $135,000.
Total: $151,092.
Superannuation of the wife:
a)(omitted) Super, $130,000.
Total combined superannuation: $281,092.
Since 2009, the parties have lived their lives making financial decisions, some good and some bad. Neither party had any control over the other. The wife had no say in the husband’s conduct of his financial affairs with (omitted) Bank nor input into any assumption that he made about the way in which (omitted) Bank would handle the husband’s loan facility. Having regard to the evidence the court finds both the husband and wife are intelligent, financially savvy people who well know, or should have well known, the financial risks they took.
The court does not accept that the husband’s financial misfortunes related to the global financial crisis, nor do they relate to a change in the (business omitted) business landscape with the event of the sale of real estate using the internet for marketing. The husband’s financial misfortunes related to his decision that he alone made in dealing with the (omitted) Bank and his failure to do anything about securing finance or refinance prior to the expiry of the two-year loan facility he had with the (omitted) Bank.
The court now turns to the initial question it must consider: should the court make an adjustment of property between the parties. Section 79 of the Family Law Act1975 provides this legislative power to adjust property between the parties of the marriage. Section 79(1) provides:
In property proceedings, the court may make such order as it considers appropriate:
(a) altering the interests of the parties to the marriage in the property; and
(b) including (c) an order for settlement of property and substitution for any interests in property.
Section 4 of the Family Law Act provides the definition as to property and 79(2) relevantly provides:
The court shall not make any order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In the case of Stanford & Stanford (2012) HCA 52, the High Court considered an appeal against an order made pursuant to section 79 involving proceedings where a party to the marriage died before the property settlement proceedings were completed. Although Stanford concerned an unusual set of facts, the High Court said a number of things of more general significance in relation to the approach to property proceedings, in particular, with respect to section 79(2).
While the facts in Stanford are different to the facts in this case, the ratio is relevant where the High Court said:
It will be recalled that section 79(2) provides that the court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order, if any, should made under the section. The requirements of the two subsections are not conflated in every case in which a property settlement order under section 79 is sought. It is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make that order.
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit an exhaustive definition. It is not possible to chart its metes and bounds and, while the power given by section 79 is not to be exercised in accordance with the fixed rules, nevertheless, three fundamental propositions must not be obscured. Firstly, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to the ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
Secondly, although section 79 confers a broad power in a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. A judge called upon to decide proceedings of that kind is not entitled to do what has been described as “palm tree justice”. No doubt, he is given a wide discretion. He must exercise it in accordance with legal principles, including the principles which the Act itself lays down.
Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is just and equitable to make the order is not to be answered by assuming that the parties’ rights to or interest in matrimonial property are or should be different from those that then exist. All the more is that so when it is recognised that section 79 of the Act must be applied keeping in mind that community of ownership arising from marriage has no place in the common law.
Questions between husband and wife about the ownership of property that may be then or may have been in the past enjoyed in common are to be decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses. The question presented by section 79 is whether those rights and interests should be altered.
Thirdly, whether making a property settlement order is just and equitable is not to be answered by beginning from the assumption that one or other party has the right to have a property of the parties divided between them or has the right to an interest in matrimonial property which is fixed by reference to the various matters including financial other contributions set out in section 79(4). The power to make a property settlement order must be exercised in accordance with the legal principles, including the principles which the Act itself lays down.
To conclude that making an order is just and equitable only because of and by reference to various matters in section 79(4) without a separate consideration of 79(2) would be to conflate the statutory requirements and ignore the principles laid down by the Act. [emphasis added] If the parties had made a financial agreement about the property of one or both of the parties that is binding pursuant of Part VIIIA of the Act, then, subject to that Part, a court cannot make a property settlement order under section 79.
But if the parties to a marriage have expressly considered but not put in writing in a way that complies with Part VIIIA how their property interests should be arranged between them during the continuance of the marriage, the application of these principles should accommodate that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangements of their property interests in their individual or commonly held assets while the marriage continues, the applications of these principles again accommodate that fact.
These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangements of the property interests, whatever they are, is sufficient for the purposes that the husband and wife, during the continuance of their marriage, the fundamental proposition that have been identified require a court to have a principle reason for interfering with the existing and legal equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreement about property interests during the continuance of the marriage. [again, emphasis added]
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as a result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It would be just and equitable to make a property settlement order in such a case because there is not and there will not, thereafter, be common use of property by the husband or wife.
No less importantly, the express and implicit assumptions that underpin the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the matrimonial relationship, that is, any express or implicit assumptions that the parties may have made to that effect that the existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence, it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying section 79(4).
As has already been emphasised, nothing in the reasons should be understood as attempting to chart the metes and bounds of what is just and equitable, nor is anything that is said in these reasons intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable. In particular, if the Full Count pointed out in its first judgment in this matter the magistrate erred in not taking into account the consequences that would follow for the husband if a property settlement order were to be made in the terms which were sought on behalf of the wife, the husband would be required to sell the matrimonial home in which he was still living, despite the needs of his wife then being met by the provision of full-time care, the further provision of money against future contingencies, and the possibility, if needed, of making an maintenance order.
Having identified, according to the common law and equitable principles, the existing legal and equitable interests of the parties in the property, the court finds that it is not just and equitable to make a property settlement order. The court reiterates section 79(2) of the Family Law Act1975 as being clear in that it states:
The court shall not make an order under this section unless it is satisfied, in all the circumstances, it is just and equitable to make the order.
Having found it is not just and equitable to make the property settlement order, the husband’s application for adjustment of property, pursuant to section 79(1), must fail. The court, therefore, makes orders set out at the beginning of this judgment.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Myers
Date: 15 March 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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