Manton and Cape

[2013] FamCA 1082

FAMILY COURT OF AUSTRALIA

MANTON & CAPE [2013] FamCA 1082

FAMILY LAW – PROPERTY – Consent Orders – where the Court is satisfied the orders are just and equitable in the circumstances

Family Law Act 1975 (Cth)

APPLICANT: Ms Manton

RESPONDENT:	Mr Cape
INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: LNC 360 of 2012

DATE DELIVERED: 11 December 2013

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 11 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A Trezise

SOLICITOR FOR THE APPLICANT: At Legals

COUNSEL FOR THE RESPONDENT: Ms F Radin

SOLICITOR FOR THE RESPONDENT: Bishops

Orders

1. Orders be made in accordance with the minute of consent order signed by the parties, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

2. This matter be removed from the list of cases requiring determination.

3. All extant applications be dismissed.

   IT IS DIRECTED

4. A copy of the reasons for these orders be taken out and placed on the court file.

   IT IS CERTIFIED

5. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Exhibit “1”

1. The Public Trustee be and is appointed as Case Guardian for the Respondent, Mr Cape.

2. Within forty five (45) days of the date of Order the Respondent transfer to the transfer to the Applicant all of his right title and interest in the property known as and situate at B Street, Suburb C (“Suburb C property”) as more particularly described in Certificate of Title Volume … Folio … (as registered in the joint names of Ms Manton and Mr Cape).

1. The Applicant shall pay and indemnify the Respondent in relation to payment of all outgoings now or hereinafter falling due as capable of being charged on the Title of the Suburb C property including but not confined to rates, land tax and insurance premiums.

2. Within forty five (45) days of the date of Order and at the same time as the transfer referred to in paragraph 2 hereof, the Public Trustee as Administrator of the Respondent in accordance with Orders made by the Guardianship & Administration Board Tasmania on the 9^th of September 2011 provide the Applicant’s solicitors with a Deed of Release such that the Public Trustee as Administrator of the Respondent will not make any further claim against the Applicant insofar as it relates to the facts and circumstances of this settlement.

3. Within forty five (45) days of the date of Order and at the same time as the transfer referred to in paragraph 2, the Applicant register a Discharge of Mortgage … executed by an authorised officer of Commonwealth Bank of Australia as registered against the Title of the Suburb C property.    

4. Within forty five (45) days of the date of Order and at the same time as the transfer referred to in paragraph 2, the Respondent register a Withdrawal of Caveat … as currently registered against the Title of the Suburb C property.

5. At the same time as the transfer referred to in paragraph 2, the provision of the Deed of Release referred to in paragraph 4, the discharge referred to in paragraph 5 and the Withdrawal of Caveat referred to in paragraph 6, the Applicant shall pay to the Respondent the sum of ONE HUNDRED AND THIRTY THOUSAND DOLLARS ($130,000.00) by bank cheque payable to Bishops Barristers & Solicitors.

1. The  Applicant forthwith transfer to the Respondent all of her right, title and interest in:-

   a)   Furniture and contents formerly used by the parties jointly but now in the possession of control of the Respondent;

   b)  Any monies at banks, credit unions, savings accounts or investments held in the sole name of the Respondent;

   c)  The Japanese motor vehicle;

   to the intent that the Respondent be the sole and absolute owner thereof.

1. The Respondent forthwith transfer to the Applicant all of his right, title and interest in:-

   a)   The property known as and situate at D Street, Suburb E (also known as D Street, Suburb F) in Tasmania;

   b)  Furniture and contents formerly used by the parties jointly but now in the possession of control of the Applicant;

   c)  Any monies at banks, credit unions, savings accounts or investments held in the sole name of the Applicant;

   to the intent that the Applicant be the sole and absolute owner thereof.

2. Each party shall pay and indemnify the other in relation to any debts held in their sole name. 

3. Neither party incur, in the name of each other, any account, debt or other liability and, subject to the terms of this order, each party shall pay and discharge all accounts, debts and other liabilities incurred by either of them and, at all times, keep the other indemnified of all claims, actions and demands, costs and other expenses in connection thereto.

1. Unless otherwise specified in these orders except for the purposes of enforcing the payment of money due under these or subsequent orders:-

   a)   Each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at this date;

   b)     The Applicant hereby forgoes any claim she may have to any superannuation benefits belonging to or earned by the Respondent including benefits held with Hesta;

   c)     Each party be liable for and indemnify the other against any liability encumbering any item of property which that party is entitled to pursuant to these orders.

1. Each of the parties do all such acts and things and execute all such documents as they may be required to do and execute to give effect to the terms of this order.

1. In relation to the Applicant’s superannuation benefits held with Tasplan Superannuation (Account number …) (the “superannuation account”):-

   a) It is declared that this order is made in accordance with Section 90MT(1)(a) of the Family Law Act;

   b) For the purposes of s 90MT(4) of the Family Law Act, the amount of Twenty Five Thousand Dollars ($25,000.00) is specified as a base amount being the entitlement of the Respondent in relation to superannuation benefits held by the Applicant with the superannuation account;

   c)     That for the purpose of these orders the operative time shall be four (4) business days within service of the order upon the trustee of the superannuation account;

   d) That for the purpose of s 90MT(1) of the Family Law Act whenever a splittable payment becomes payable:-

   (i)For the interest of the Applicant in the said account the Respondent shall be entitled to the base amount adjusted in accordance with the provisions of Part 6 of the Family Law (Superannuation) Regulations 2001 pursuant to these orders;

   (ii)The Trustee of the superannuation account shall reduce the entitlement of the Applicant in the superannuation account accordingly;

   (iii)That these orders shall bind the Trustee of Tasplan Super;

   (iv)That Bishops Barristers & Solicitors shall serve a sealed copy of these Orders upon the Trustee of Tasplan Super within five (5) business days of the date of this Order.

   (v)That until the Trustees of Tasplan Super has effected the splittable payment in favour of Mr Cape pursuant to these Orders then the Applicant, her personal representatives and any person or persons acting on her or their behalf be and are hereby restrained from disposing of all or any amount payable to the Applicant and/or her personal representatives, received by or held in trust, or for the benefit of her or them.

2. The provisions contained here and above bind the heirs, executors, administrators and assigns of the Applicant and the Respondent.

3. The Applicant’s Initiating Application (Family Law) filed the 13^th of July 2012 and the Respondent’s Response to Initiating Application (Family Law) field the 19^th of September 2012 be otherwise dismissed with no order as to costs.

AND THE COURT IS ASKED TO NOTE

a)That the parties intend these Orders to be in full and final settlement of their respective rights and claims against the other for property settlement and spousal maintenance pursuant to Part VIII of the Family Law Act 1975 and superannuation Orders pursuant to Part VIIIB of the Family Law Act 1975, as amended.

b)That a member statement dated the 9^th of September 2013 setting out the current balance of the Applicant’s benefits with Tasplan Super has been filed with the Court.

c)That Bishops Barristers & Solicitors wrote to the Trustee of Tasplan Super providing the Trustee with written notice of the intention to seek the Orders from the Court in the terms of these orders and provided them with written notice that the Trustee may object to the orders sought by giving them written notice of the objection within twenty eight (28) days of receipt of the letter. A copy of that letter has been filed with the Court.

d)That the Trustee has not objected to the orders being sought and confirmed this in writing to Bishops Barristers & Solicitors. A copy of that letter has been filed with the Court.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 360 of 2012

Ms Manton

Applicant

And

Mr Cape

Respondent

REASONS FOR JUDGMENT

1. Ms Manton, and Mr Cape commenced living together in about 1989.  At the time they commenced living together Ms Manton was working at St Marys Hospital as a cleaner and had received a cash settlement of about $20,000 from her former husband.  She had also received an interest in a property from her late father.  That was an interest in a property at Suburb E which was transferred to her in about 1995.

2. The parties have now separated in circumstances which were to say the least difficult for all involved.  They have engaged in property proceedings and Mr Cape was represented by legal practitioners and had a case guardian in the form of a trustee.  Apparently he worked as a rail worker at the time and Ms Manton also worked through most of those early years.  In 1997 she obtained employment as a practice manager of a medical centre and she remained in that employment on a good income.  They purchased a time share at Suburb F, but it has no value. 

3. In 1992 Mr Cape was involved in a motor vehicle accident where he was seriously hurt and was out of work for about three years.  He received a payment from the Motor Accidents Insurance Board of about $100,000 which he invested, but the funds were being dissipated and he transferred those funds to a HESTA Superannuation account.  He worked after that time as a pathology driver.  He was laid off from that work in 2000.

4. Ms Manton and Mr Cape purchased land and built a house at Suburb C.  Ms Manton is to retain the home.  In about 2003 the parties purchased a property at G Street, Suburb H.  In 2008 Mr Cape’s behaviour began to change and it appears that he has suffered brain deterioration and he is now in supported accommodation.  His life expectancy may be as short as five years and as long as 10 years or so, but of course any such assessment of life expectancy is fraught.

5. As at today’s date the property of the parties is (1) the proceeds of sale of the G Street, Suburb H property, the home at B Street, Suburb C which was valued by J Pty Ltd at $315,000 but which the parties had thought had a greater value.  Ms Manton retains an interest in D Street, Suburb E, which has an agreed value of $121,500.  They have moneys in banks and there was a car owned by Mr Cape which the Trustee has given to his daughter.  There were debts to the Commonwealth Bank and a Citibank.

6. The Commonwealth Bank mortgage at the time of payment was about $150,000 and it was paid out of the sale of the proceeds of sale of Suburb H and the Citibank credit card was paid by Ms Manton directly.  Each of the parties had superannuation.  Ms Manton had about $50,000 and Mr Cape had a much greater sum.  The effect of the settlement is that Ms Manton will be splitting her superannuation as to about $25,000 to Mr Cape who has access to that immediately and division of the other property on the basis of about 45 per cent to Ms Manton and 55 per cent to Mr Cape which means an overall adjustment of property of slightly more to Mr Cape than to Ms Manton.

7. It seems to me that the contributions by the parties were either equal or slightly favouring Mr Cape having regard to the money he received on the compensation, although it could have been argued five or 10 per cent either way perhaps even in favour of Ms Manton, given her high earnings, the moneys from her parents’ estate and the initial contribution.  In terms of future needs, Mr Cape has serious health difficulties, but having regard to his accommodation, his expenses and living may not be as great.  His life expectancy it appears is reduced.

8. Considering all of those factors and having regard to the recommendations by the legal practitioners for each of the parties and the support of the Case Guardian in the form of the Public Trustee in terms of Mr Cape, I am satisfied that this is an appropriate adjustment of property as between the parties.  .

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 11 December 2013.

Associate:     

Date:              11 December 2013