Manson & Manson

Case [2021] FedCFamC1F 210

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Manson & Manson [2021] FedCFamC1F 210

File number(s): SYC 8276 of 2018
Judgment of: REES J
Date of judgment: 19 November 2021
Catchwords: FAMILY LAW – PARENTING – Where the child has had minimal contact with the father for the past three years – Where the child has an enmeshed relationship with the mother and maternal grandmother – Where the child does not wish to spend time, or communicate, with the father – Where it is not practically possible to change the child’s residence – No orders regulating time the child spends with the father.
FAMILY LAW – PROPERTY – Contributions assessed as equal – 10 per cent adjustment in favour of the wife pursuant to s 75(2) of the Family Law Act 1975 (Cth) – Wife to receive 60 per cent of the net assets.
Legislation:

Child Support (Assessment) Act 1989 (Cth) s 117

Family Law Act 1975 (Cth) s 60CC(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13
Cases cited: Lesley & Lesley [2015] FamCA 894
Division: Division 1 First Instance
Number of paragraphs: 198
Date of hearing: 8 – 9 November 2021
Place: Sydney
Counsel for the Applicant: Mr Harper
Solicitor for the Applicant: John De Mestre & Co Pty Ltd
Counsel for the Respondent: Mr Jauncey
Solicitor for the Respondent: Jack Rigg Solicitors

ORDERS

SYC 8276 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR MANSON

Applicant
AND:

MS MANSON

Respondent

ORDER MADE BY:

REES J

DATE OF ORDER:

19 NOVEMBER 2021

THE COURT ORDERS:

1.That X (“X”) born on … 2010 live with the wife who shall have sole parental responsibility.

2.That the wife, as soon as practicable, notify the husband in the event that X receives medical treatment; provide to him the contact details of the treating practitioner and authorise the treating practitioner to provide to the husband any information he seeks about X’s medical condition or treatment.

3.That the wife authorise any school which X attends to provide to the husband any information usually provided to a parent.

4.That the husband may attend any school, sport or extracurricular events which are usually attended by parents.

5.That each parent ensure that at all times the other is provided with an email address and telephone number so that each can contact the other.

6.That the wife ensure that, at all times, the husband is provided with an email address and a mobile phone number where the husband can contact X.

7.That the wife is restrained in interfering in communication between the husband and X.

8.That each parent do all things required to ensure that X has a valid Australian passport.

9.That each of the husband and the wife forthwith do all acts and things required to sell the property at E Street, Suburb D, Qld and to pay the proceeds of sale, after deduction of costs of sale, in reduction of the mortgage debt secured over…

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Manson & Manson [2021] FedCFamC1F 210
Case
[2021] FedCFamC1F 210
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CaseChat Overview and Summary

In the case of Manson & Manson, the court was asked to determine the division of assets between the parties following their separation and divorce. The primary issue before the court was how to equitably divide the net assets of the parties, taking into account various factors such as the contributions made by each party, the welfare of any children involved, and the conduct of the parties. The court had to consider evidence from both parties, including financial statements, expert reports, and testimony regarding the children's welfare.

The court meticulously examined the evidence provided by both parties, including the expert report from Dr F, which detailed interviews with the child, X. The court found Dr F's report to be consistent with the mother’s account and disregarded criticisms of the report's accuracy and conclusions, as they were not contested. The court considered the child's welfare and his views on his relationship with his father, which influenced the decision on asset distribution. Additionally, the court took into account the post-separation savings of the wife and the husband's rent payments during this period.

After weighing all the factors, the court decided that a 10% adjustment in favour of the wife was appropriate under section 75(2) of the relevant legislation. This adjustment resulted in the wife receiving 60% of the net assets, equating to $1,075,613. To allow the wife to retain the Suburb L property, she was required to pay the husband $707,000 within six weeks of the orders. If the wife could not secure the necessary funds, both the Suburb L property and the Suburb D property would be sold, and the proceeds would be distributed accordingly. The court’s final orders ensured that the net assets were divided equitably, taking into account the unique circumstances of the case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I accept that evidence as being entirely consistent with the mother’s evidence before me.THE EVIDENCE OF DR F Dr F conducted interviews in April 2021 and produced a report dated 23 April 2021. Neither parent required Dr F for cross-examination. Although the mother’s affidavit contains criticisms of the report’s accuracy and its conclusions, since none of those matters was put to Dr F, I propose to disregard them and to consider Dr F’s evidence as unchallenged. Of his interview with X, Dr F reported:7.When asked about his family, X told me that the three of them had been living together until two or three years ago. His parents had been arguing a bit. Dad would start yelling. He would bang on his door. His Mum had had to call the Police. He explained that the arguments had occurred every couple of days. Sometimes, his Dad would swear. On one occasion, his Mum had called his grandpa and his wife to come over. He further explained that his father had been the coach of his previous AFL team. He complained that sometimes his father would fully ignore him. He would be playing Sportsbet on his phone and did not give X his full attention. Sometimes, he would tell X to go away and go to his room. He would then call his Mum. She would call the Police. By the time, the Police had attended, his father would have already returned home to his unit. When asked why his mother would call the Police, X responded that he was not sure what she wanted but understood that she wanted to make sure that he was safe. When asked why she would do this, X explained, “Because sometimes he would get very violent, swearing at both of us.” When asked if he had ever been unsafe, X responded, “I don't think that I was unsafe, but I was just feeling neglected. But I might have felt unsafe once or twice, but I can’t exactly remember.” X explained that, prior to the Court proceedings, his father had been looking after him in the family home. He had then moved out to a unit. X recalled his parents living together. He recalled that this was “a lot better than it is now. They didn’t argue. He didn’t ignore me. He didn’t stalk us, follow us everywhere or set his family to spy on us.” X reported positive experiences with his father after the parents separated. Dr F reported:18. When asked about the last time he had seen his Dad, X told me that two ladies had been trying to get him to see him. X had not seen him recently, except one time recently when his father had shouted and waved at him. X told me, “I don't want him involved in my life anymore. For the first two months, I tried to text and call him but he never answered. So I don’t want to see him. Because of that and a lot of stuff. The spying, trying to take me away, and him ignoring me. I know that he wants to see me but if he does, why is he always rude to us? He says ‘No, no. I just want to speak to you.’” Dr F asked X about being interviewed with his father. In his report, he explained:19. X understood that a report would be prepared for the Court. When asked if he had felt okay about the interview, he confirmed that this was the case. When asked if he had experienced any problems, he confirmed that there had not been any. X was informed that the report writer wanted to arrange for him to attend to see his Dad on Thursday morning. X responded that he thought that he had swimming training in the morning and the afternoon and then he would start school. When asked whether he would attend at my request, X initially responded, “I don’t really know because I don’t want to see him. I get it would help, but after what he has done, I just don't want to see him.”20. X was asked whether he would feel afraid. He denied that this would be the case. When asked if he felt comfortable about coming to the report writer’s office, he agreed that he did. When given the choice as to whether the 16-month-old Golden Retriever would be in attendance, X stated that he would prefer the Golden Retriever to be present. He was keen to come to have the opportunity to see the therapy dog. It was thus unfortunate that, following the appointment, the mother insisted that this should not occur in conversations with the report writer, receptionist, and in a follow-up email. The mother’s wishes were respected.

Decision

Reasons for decision

Taking all of those matters into account, and having regard to the concession on behalf of the husband that a 10 per cent adjustment for s 75(2) factors would be appropriate, I propose to make an adjustment of 10 per cent in favour of the wife.CONCLUSION The wife will receive 60 per cent of the net assets. In order for her to be able to retain the Suburb L property, it was an agreed position that she should pay the amount due to the husband within six weeks of the date of the orders. Counsel for the wife submitted that the wife should notify the husband within four weeks that she has finance approved and be allowed a further two weeks to settle. The net assets are $1,792,688 of which the wife is entitled to 60 per cent or $1,075,613. She seeks to retain $1,778,500, including her chattels valued at $10,500. The husband will receive $4,200 being 40 per cent of the value of the wife’s chattels. On those figures, she will need to pay the husband about $707,000 and to assume the remaining mortgage liability. The orders will provide for the sale of the Suburb D property, the payment of the net proceeds after selling costs in reduction of the Suburb L mortgage and the amount to be paid to the husband will be adjusted accordingly. If the wife is unable to raise funds to purchase the husband’s interest, then both theSuburb L property and the Suburb D property will be sold.

Ratio Decidendi

Legal Principle Established

There is no explanation for the discrepancy in the respective values. The orders will provide for these funds to be paid towards the discharge of the Suburb L property mortgage. This item will be removed from the balance sheet.Items 7 and 8 – wife’s post separation savings There is no dispute that the wife has saved $168,000 since separation. On her behalf, it was submitted that the husband had made no contribution to the savings and that it should not be included as an asset in the balance sheet. On behalf of the husband, it was contended that, since separation, the wife had the benefit of occupation of the former matrimonial home while the husband paid rent. The husband deposed that, at August 2021, he had paid $86,540 in rent. The wife conceded in cross-examination that, at separation, there was some $60,000 available in an account from which mortgage payments were made. On 17 June 2020, an order was made that required the parties each to pay one half of the shortfall between the rent on the investment property and the mortgage. Whilst I accept that, for some periods after the $60,000 had been exhausted, the husband contributed half of the mortgage payments, it is not possible on the available evidence to determine what was paid by each of them towards the mortgage. The same considerations apply to the wife’s savings which are Item 7 which will also be removed. However, I propose to remove the wife’s post-separation savings from the balance sheet and to take into account, pursuant to s 75(2) of the Act, the fact that the wife had the benefit of the occupation of the home, and has accumulated savings, and the husband has paid rent. It follows that, if the wife’s post-separation savings are removed, so too must be the husband’s. Items 20 to 23 – husband’s credit cards It was conceded that these debts were incurred after separation and they will be removed from the balance sheet.Items 25 to 27 – husband’s borrowings for legal fees Parties are entitled to fund their legal representation but their decisions cannot be visited on the other party. These items will be removed from the balance sheet. Therefore I find the assets and liabilities of the parties to be:Assets The net assets, excluding superannuation, are therefore $1,792,688, of which the wife has and will retain $10,500. The wife wishes to retain the Suburb L property. If the Suburb D property is sold, the net proceeds of sale after agents’ commission and selling costs of $14,000, will be in the vicinity of $635,000 which will be applied to the Suburb L mortgage, reducing the balance outstanding to about $932,000. Thus the wife would retain the house with a net value of $1,768,000 plus her additional assets of $10,500, a total of $1,778,500.SECTION 79(2) The significant property of the parties is jointly held. They can no longer use their property for their mutual benefit and they both seek a division. It is just and equitable for their property to be divided between them.CONTRIBUTION