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…
Continue reading Manson & Manson
Sign in free to access the full text
- AGLC
- Manson & Manson [2021] FedCFamC1F 210
- Case
- [2021] FedCFamC1F 210
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
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