Marley & Ormonde

Case [2022] FedCFamC1F 23

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Marley & Ormonde [2022] FedCFamC1F 23  

File number(s): SYC 3012 of 2018
Judgment of: CAMPTON J
Date of judgment: 27 January 2022 
Catchwords:

FAMILY LAW – CHILDREN – Where the parties each sought an order as to equal shared parental responsibility – Finding made as to order for equal shared parental responsibility as to health not in best interests - Orders made as to equal shared parental responsibility except as to the medical treatment of and the health of the children – Orders to confer if possible as to these issues - Mother ordered to have sole parental responsibility for all decisions as to the medical treatment of and health of the children – Where the conflict between the parents and coercive and controlling conduct of the father renders an equal time arrangement inappropriate – Where orders are made for the children to live with the mother and spend significant and substantial time with the father – Where the children clearly have a close and loving relationship with both parents.

FAMILY LAW – PROPERTY – Final orders – Division of property following a de facto relationship of 23 years pursuant to s 90SM of the Family Law Act 1975 (Cth) – Where the father’s family made significant contributions to the parties’ property throughout the relationship on his behalf, all of which were not quantified, and where the mother made significant contributions post-separation – Where it is found that the parties’ contributions were on balance equal – Where the Court finds that the wife is entitled to a 15 per cent adjustment in her favour on the basis of s 90SF(3) factors – Where the father has a significant financial resource by way of a company – Where the father has not fulfilled his duties of disclosure – Where the mother seeks orders for the sale of the former matrimonial property – Where the father resists the sale and seeks to retain the property – Equitable interests – Where a third party to the marriage, the father’s brother, has been determined to have an beneficial interest by way of resulting trust in the former matrimonial property of the parties – Requirement of the third party to account in respect of the former matrimonial property – Where the prospects of the father being able to retain the property and meet his asserted liabilities are effectively nil – Order made for the sale of the property

Legislation: Family Law Act 1975 (Cth) ss 90SF, s 90SK, s 90SM,106B
Cases cited:

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

Bircher & Bircher and Anor (2016) FLC 93-721; [2016] FamCAFC 123

Black & Kellner (1992) FLC 92-287

Calverley v Green (1984) 155 CLR 81

Currie v Hamilton [1984] 1 NSWLR 687

Edgehill & Edgehill [2007] FamCA 1102

G & C [2006] FamCA 994

Gollings & Scott (2007) FLC 93-319; [2007] FamCA 397

Hall & Hall (2016) 257 CLR 490; [2016] HCA 23

Horrigan &…

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Details
AGLC
Marley & Ormonde [2022] FedCFamC1F 23
Case
[2022] FedCFamC1F 23
Decision Date

CaseChat Overview and Summary

The case of Marley & Ormonde involved a dispute between the parents of a child over property and financial matters, which was heard in the Family Court of Australia. The central issue was the valuation of the parties’ assets, specifically the Suburb F Property and the father’s Motor Vehicle 1. The court needed to determine the value of these assets based on expert evidence provided by Mr RR and Mr SS, respectively. The mother and father contested the experts' opinions, but ultimately agreed to adopt them, leading to the acceptance of the Suburb F Property's value at $4 million and the father’s Motor Vehicle 1 at $113,700.

The court addressed the objections and cross-examinations concerning the expert evidence, ensuring that the experts' methodologies and conclusions were thoroughly examined. Mr RR, the real property valuation expert, opined that the Suburb F Property was valued at $4 million, and this opinion was accepted by both parties. Mr SS, the motor vehicle valuation expert, assessed the father's Motor Vehicle 1 to be in poor condition with a current value of $113,700. Despite the father’s attempts to undermine the expert’s valuation through propositions of repairs and works, Mr SS remained steadfast in his assessment. The court ultimately accepted Mr SS’s evidence, finding that the father's Motor Vehicle 1 was valued at $113,700.

In its reasoning, the court considered the expert evidence and the parties' submissions, finding that the valuations provided by the experts were reasonable and supported by the evidence. The court concluded that the mother and father had agreed to adopt the experts’ opinions, leading to the acceptance of the property values. The court also noted that the documents tendered by the father, which were not inconsistent with the expert’s findings, did not alter the accepted valuations. The court's decision was based on the evidence presented and the agreement of the parties to adopt the experts' opinions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There were a number of objections to the parts of each affidavit relied upon and determined at the commencement of the hearing. The expert evidence as to valuations The affidavit of the single real property valuation expert Mr RR filed on 21 November 2021 exhibited his report dated 12 November 2021 as to the value of the Suburb F Property, opined at $4 million. Mr RR was cross-examined by counsel for the mother and by the father. In submissions they agreed to adopt Mr RR’s opinion. I find that the Suburb F Property is valued at $4 million. The affidavit of the single motor vehicle valuation expert Mr SS filed on 18 November 2021 exhibited his report dated 15 November 2021 as to the value of the father’s Motor Vehicle 1, opining that the vehicle was in poor condition and had a current value of $113,700. Mr SS is also a qualified mechanic. The expert was cross-examined by counsel for the mother and by the father over two different periods during the course of the hearing subsequent to some difficulties with the Microsoft Teams format connection. The father put a number of propositions as to a range of repairs and other works to the vehicle to Mr SS to undermine the value he opined of the Motor Vehicle 1. Their import was that the expert had not sufficiently taken these matters into account in concluding his opinion as to the value of the vehicle. The expert was not shaken in his evidence. He confirmed that he had taken into account a cost of $50,000 to $60,000 to cause the vehicle to be restored to “good condition”. He said that if a presentation of good condition of the vehicle was achieved, a value in the range of $170,000 or more would be a “fair and reasonable price” on the “open market”. The father during submissions tendered quotes for repairs to Motor Vehicle 1 ranging in date from 19 April 2018 to 24 November 2021. The documents or their content were not put to Mr SS. They are not inconsistent with the expert’s opinion as to the costs of improving the condition of the vehicle from poor to good. I accept the evidence of Mr SS and find the father’s Motor Vehicle 1 valued at $113,700.Exhibits The documents marked as Exhibits over the course of the hearing are as follows: Court Exhibit 1 – Family Report of Ms XX (“the Court Child Expert”) dated 17 May 2021 (“the family report”) Court Exhibit 2 – Updated Joint Balance Sheet dated 22 November 2021 Court Exhibit 2A – Final Updated Joint Balance Sheet dated 23 November 2021Court Exhibit 3 – Updated Consent Orders as to Parenting (26 November 2021)Court Exhibit 4 – Further Updated Consent Orders as to Parenting (26 November 2021)Court Exhibit 5 – Final Updated Consent Orders as to ParentingExhibit A – Mother’s case outline and Minute of Order dated 22 November 2021Exhibit B – Father’s case outline dated 22 November 2021Exhibit C – Undertaking as to disclosure by the motherExhibit D – Undertaking as to disclosure by the fatherExhibit E – Mother’s updated Minute of Order as to parenting and financial adjustmentExhibit F – Father’s updated Minute of Order(s) as to parenting and financial adjustmentExhibit G – Invoice Ms YY dated 9 May 2016Exhibit H – Father’s costs notice dated 23 November 2021Exhibit I – Electricity Account Summary for Suburb F Property from 2015 to 2020Exhibit J – Email from CH Accountants to mother dated 8 April 2016Exhibit K – Bankruptcy Notice to both parents issued 18 August 2017Exhibit L – Father’s T Bank Platinum statement for the period 20 March 2017 to 18 April 2017Exhibit M – Email dated 23 October 2020 recording rates paid in relation to Suburb F PropertyExhibit N – Father’s J Bank mortgage statements for the period 25 July 2017 to 28 June 2018Exhibit O – Father’s H Bank mortgage statements for the 5 October 2021 to 28 June 2019Exhibit P – KPL T Bank account ending …54 statements for the period 14 November 2017 to 14 December 2017Exhibit Q – T Bank joint account ending …72 statements for the period 14 November 2017 to 14 December 2017Exhibit R – Personal Taxation Returns and Notices of Assessment of the father for the financial years ending 30 June 2018 to 30 June 2021Exhibit S – Company Taxation Returns, Balance Sheets and Profit and Loss Statements for KPL for the financial years ending 30 June 2018 to 30 June 2021Exhibit T – Division 7A Loan Agreements between KPL and the father dated 30 June 2019, 30 June 2020, and 30 June 2021Exhibit U – Agreement for sale of listed ‘first edition books’ and Consignment Agreement dated 26 July 2020 between the father and Mr TT (“Mr TT”)Exhibit V – Administrative Appeals Tribunal child support determination dated 21 January 2021Exhibit W – Mother’s updated costs notice dated 25 November 2021Exhibit X – Page 5 of Statement number 53 for the KPL T Bank account ending …54 for the period 10 July 2020 to 9 August 2020Exhibit Y – not markedExhibit Z – Invoices of CP Company & CQ CompanyExhibit AA – Taxation Returns and Notices of Assessment of the mother for the financial years ending 30 June 2018 – 30 June 2020, and PAYG Income Statement for the financial year ending 30 June 2021 Exhibit AB – Email from Mr BA, Director of BC Company, to the father dated 30 November 2021Exhibit AC – Document entitled Independent Consultancy between BD Company and BE Pty Ltd for the period 1 April 2018 to 31 December 2018, executed by the third respondent, Mr C Ormonde, on 4 May 2018, together with Certificate of Registration for BE Pty LtdExhibit AD – Counterpart Documents Entitled ‘Loan Agreement’ between BC Company and K Pty Ltd executed 12 July 2018Exhibit AE – Document entitled ‘BF Dropbox’ recording the list of folders provided by the father to the mother by way of DisclosureExhibit AF – Three documents as to Motor Vehicle 1 commencing 19 April 2018 and concluding 24 November 2021Exhibit AG – Bundle of documents Email from BG Company dated 9 April 2018 attaching receipt dated 28 August 2009, Email from BH Company dated 13 October 2020 attaching a receipt dated 28 August 2009, Email from BI Company directed to the father together attaching receipts for the purchase of goods in 2015, 2018, 2019

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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