Middleton & Redmond

Case [2021] FCCA 316

FEDERAL CIRCUIT COURT OF AUSTRALIA

Middleton & Redmond [2021] FCCA 316

File number: MLC 11580 of 2017
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 23 February 2021
Catchwords: FAMILY LAW – Final property – self represented litigants – section 102NA –allegations of family violence – whether the ban on cross-examination applies – division of remaining asset – division of funds held on trust – small asset pool – two sides to duty of disclosure – problems determining where cash came from – efficiency of Courts subpoena section in COVID-19 times – section 75(2) adjustment.
Legislation:

Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB.

Evidence Act 1995 (Cth), ss 41, 101, 131(2), 140.

Family Law Act 1975 (Cth), ss 69ZT, 75(2), 79, 102NA.

Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth).

Sentencing Act 1991 (Vic), s 7.

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Bull v A-G (NSW) (1913) 17 CLR 370

Henry and Del Frate [2019] FCWA 207

Hickey and Hickey and the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143

Mabb & Mabb and Anor

In the marriage of Kessey and Kessey

In the marriage of Rickaby and Rickaby

Owen & Owen [2020] FamCA 90

Pellegrino & Pellegrino

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Re: F: Litigants in Person Guidelines (2001) FLC ¶93 072

Stanford v Stanford (2012) FLC ¶93-518

Sinclair & Sinclair [2012] FamCA 388

DC Pearce and RS Geddes, Statutory Interpretation in Australia, (Lexis Nexis Butterworths, 8th ed, 2014)

Number of paragraphs: 191
Date of last submissions: 15 October 2020
Dates of hearing: 12, 14 and 15 October 2020
Place: Melbourne
The Applicant: Appeared In Person
The Respondent: Appeared In Person

ORDERS

MLC 11580 of 2017
BETWEEN:

MS MIDDLETON

Applicant
AND:

MR REDMOND

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

23 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The parties do all acts and things and execute any necessary documents to cause the proceeds of sale of the property known as the investment property at B Street, Suburb C, currently held on trust for the parties (‘the proceeds of sale’) be divided between them, sixty percentum (60%) to the Husband and forty percentum (40%) to the Wife.

2.Any costs or charges relating to the proceeds of sale being held on trust be borne by the parties in the same proportions.

3.Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any 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 the date of these orders.

(b)Monies standing to the credit of the parties in any join bank account, if any, are to be divided in the proportions described above.

(c)Each party retain any superannuation benefits belonging to or earned by that party.

(d)Insurance policies remain the sole property of the owner/beneficiary named thereon/in.

(e)Each…

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AGLC
Middleton & Redmond [2021] FCCA 316
Case
[2021] FCCA 316
Decision Date

CaseChat Overview and Summary

In the matter of MLC 11580 of 2017, Ms Middleton (the Applicant) and Mr Redmond (the Respondent) presented their property dispute to Judge O'Shannessy. The core of their disagreement centred on the division of funds held on trust, which represented the proceeds of sale from an investment property. Both parties were self-represented, and the proceedings involved allegations of family violence, though the specific impact of section 102NA of the Family Law Act 1975 (Cth) on cross-examination was not the primary focus of the court's determination.

The court was required to determine how to equitably divide the remaining asset pool, specifically the proceeds of sale held on trust. This involved assessing the contributions of each party, both financial and non-financial, to the acquisition and maintenance of the property. Furthermore, the court needed to consider the impact of any proposed orders on the future earning capacity of each party and take into account relevant matters under section 75(2) of the Family Law Act 1975 (Cth), which addresses factors such as age, health, and financial resources. The court also had to navigate issues of disclosure and the reliability of evidence presented by both parties, particularly concerning the source of funds used in the relationship.

Judge O'Shannessy applied the principles of section 79 of the Family Law Act 1975 (Cth), which governs the alteration of property interests in marriage settlement proceedings. The court considered the financial and non-financial contributions of each party, as well as their respective welfare and future economic circumstances. Despite some discrepancies and exaggerations in the evidence presented by both parties regarding the origin of funds and financial positions, the court found that an adjustment in the Wife's favour of 15% was warranted under section 75(2), amounting to approximately $11,550. This adjustment led to a final division of the proceeds of sale held on trust, with 60% allocated to the Husband and 40% to the Wife. The court also ordered that each party retain their respective superannuation, motor vehicles, and savings, deeming these orders just and equitable in the circumstances.

Orders

Orders of the court

MLC 11580 of 2017

BETWEEN:

MS MIDDLETON

Applicant

AND:

MR REDMOND

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

23 FEBRUARY 2021

THE COURT ORDERS THAT:

1. The parties do all acts and things and execute any necessary documents to cause the proceeds of sale of the property known as the investment property at B Street, Suburb C, currently held on trust for the parties (‘the proceeds of sale’) be divided between them, sixty percentum (60%) to the Husband and forty percentum (40%) to the Wife.

2. Any costs or charges relating to the proceeds of sale being held on trust be borne by the parties in the same proportions.

3. Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any 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 the date of these orders.

(b) Monies standing to the credit of the parties in any join bank account, if any, are to be divided in the proportions described above.

(c) Each party retain any superannuation benefits belonging to or earned by that party.

(d) Insurance policies remain the sole property of the owner/beneficiary named thereon/in.

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

4. The applications of the Husband and the Wife seeking property division orders pursuant section 79 of the Family Law Act 1975 (Cth) are otherwise dismissed.

AND THE COURT NOTES THAT:

A. The parties intend these orders shall as far as practicable finally determine the financial relationships between then and avoid further proceedings between them.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The preferred approach assists me in making a principled and orderly determination of the parties’ property dispute. This is particularly so where the parties identified and concentrated on the matters in dispute that he or she regarded as most important. The parties regarded the proportions in which the money from each set of parents had contributed to the purchase of the investment property and the expenses of their relationship as being determinative of the dispute. The matters that they identified and sought to convince me about are important to the section 79(4) determination but they are not the only matters that the law requires me to take into account. The preferred approach assists me take all of those matters into account.Credibility and Reliability of Evidence Entries in the Husband’s bank statements where he had contrived to make a payment received from his mother to assist with babysitting expenses appear as a payment of salary from a business demonstrated his capacity for, or at least contemplation of, calculated dishonesty. The entries are persuasively described in the Husband’s Commonwealth Bank account #...61 as “Direct credit F Payroll $1,509.69”. This caused me to look at his evidence very carefully. On the other hand the Husband’s demeanour when giving evidence was frank and he readily made concessions from time to time. The Husband did not suggest to me that the Wife was lying but rather he said that she was confused when she asserted that money had come from her parents which she had deposited in a bank account when the Husband asserted that the money had come from his parents. In oral evidence the Husband volunteered a contribution by the Wife, and by inference from her family, of $5,000 that the Wife did not claim (for other reasons I did not include this as a contribution). The Wife’s demeanour when giving evidence was frank and she readily made concessions from time to time. In her affidavit filed 5 June 2020 at [13] the Wife asserted that at separation the Husband had retained the funds of the joint account in the sum of $7,000 and she had only been left with only $200. This was an exaggeration and only part of reality at that time. The Wife had in fact had available to her the sum of $28,819 in Commonwealth Bank account #...31, (see: p120/159 of the Husband’s court book), albeit she asserts, and it was not contested and I accept, it was her mother’s money. The history was that the Wife was able to draw on her Mother’s funds, including for living expenses, when she needed to and her Mother’s evidence was to this effect. Hence the statement at [13] was far from an accurate account of her after separation financial circumstances. As a result I examined the Wife’s evidence very carefully. Each party made small qualifications or provided additional details to assertions previously made when confronted with specific details. It is the source of the funds to purchase the investment property which is the most substantial factual dispute between the parties. It is common ground that the parents of each of the parties provide substantial funds to their son or daughter prior to and during the relationship.Summary of Contentions of the Parties

Decision

Reasons for decision

In this case and considering all of the evidence and the matters to be considered at this step of the preferred approach I find that there should an adjustment in the Wife’s favour of 15% or about $11,550 and which is a disparity on account of section 75(2) of $23,100. The Husband, by frugality, currently saves about $12,000 per annum and receives government benefits of about $26,000 per annum. Hence that is an end result that the assets be divided 60% to the Husband and 40% to the Wife.Step Four: Conclusion & again consider are the consequent orders just and equitable Any order I make must be just and equitable. I will only make orders dealing with the proceeds of sale held on trust. It is just and equitable that the parties retain their modest superannuation, motor cars and savings without adjustment. The funds originally deposited on trust were $97,345 but are now less the two distributions of $10,000 leaving $77,345 plus interest if any. The end result is that of the funds available the Husband will receive about $46,407 or 1 ½ time what the Wife receives and the Wife will receive about $30,938. I find that orders to this affect are just and equitable in all the circumstances of this case and I so order. I urge the Wife to immediately get her motor car insured.

Ratio Decidendi

Legal Principle Established

Relevant parts of sections 79(1) to (4) of the Act provide as follows:79 Alteration of property interests(1)In property settlement proceedings, the court may make such order as it considers appropriate:(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property;including:(c)an order for a settlement of property in substitution for any interest in the property; and(d) an order requiring:(i) either or both of the parties to the marriage; or(ii) the relevant bankruptcy trustee (if any);to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.(subsections (1A), (1B) and (1C) not reproduced)(2)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.(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and(e)the matters referred to in subsection 75(2) so far as they are relevant; and(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.