Miley & Miley

Case [2024] FedCFamC1F 5

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Miley & Miley [2024] FedCFamC1F 5

File number: MLC 5852 of 2021
Judgment of: MCGUIRE J
Date of judgment: 19 January 2024
Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – application by wife for the alteration of property interests - - wife seeks a 65/35 per cent distribution of the property in her favour with a 15 per cent loading to her on account of asserted superior contribution – husband seeks a 55/45 per cent alteration of the parties property interest in his favour with a 5 per cent loading on account of relevant s 75(2) of the Family Law Act 1975 (Cth) factors – orders that there be a 50/50 per cent division of the parties net property where the Court is satisfied in the circumstances that the division is just and equitable giving proper consideration and weight to their various contributions and the current circumstances of each
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 75(2), 79
Cases cited:

Briginshaw & Briginshaw (1938) 60 CLR 336

Fox v Percy (2003) 214 CLR 118

Galea & Galea (1990) 19 NSWLR 263

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

In the Marriage of Albany v Albany (1980) FLC 90-905

In the Marriage of Brandt v Brandt (1997) FLC 92-758

In the Marriage of Garrett v Garrett (1984) FLC 91-539

In the Marriage of McDougall v McDougall (1976) FLC 90-076

Jabour & Jabour (2019) FLC 93-898, [2019] FamCAFC 78

Omacini v Omacini (2005) FLC 93-218; [2005] FamCA 195

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

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

Stanford & Stanford (2012) 247 CLR 108
Division: Division 1 First Instance
Number of paragraphs: 86
Date of last submissions: 6 November 2023
Date of hearing: 1, 2 and 3 November 2023
Place: Melbourne and Hobart, delivered in Sydney
Counsel for the Applicant: Ms Borg
Solicitor for the Applicant: McDonald Slater & Lay
Solicitor for the Applicant: Litigant in Person

ORDERS

MLC 5852 of 2021

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

MS MILEY

Applicant
AND:

MR MILEY

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

19 JANUARY 2024

THE COURT ORDERS THAT:

1.The net property pool of the parties inclusive of superannuation entitlements be distributed as to 50 per cent to the husband and 50 per cent to the wife in accordance with these Orders.

2.Within sixty (60) days from the date of this Order the respondent Mr Miley (“the husband”) shall transfer to the applicant Ms Miley (“the wife”) all his right, title and interest in the property situate at B Street, Suburb C in Victoria and the wife shall be solely responsible for the payment of all amounts payable in respect of any mortgage payments for the property and all rates, taxes, insurances and any other outgoings and shall indemnify and keep indemnified the husband.

3.Contemporaneously with the…

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AGLC
Miley & Miley [2024] FedCFamC1F 5
Case
[2024] FedCFamC1F 5
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Ms Miley versus Mr Miley involved a dispute over the division of the parties' property following their separation. The central issue was the equitable distribution of their net property, including their respective contributions to the accumulation of wealth during their 19-year relationship and their current financial situations. Ms Miley sought a 65/35 per cent division in her favour, arguing for a 15 per cent loading on account of her superior contributions. Conversely, Mr Miley sought a 55/45 per cent division in his favour, advocating for a 5 per cent loading considering the factors outlined in s 75(2) of the Family Law Act 1975 (Cth). The court was required to balance the contributions and current circumstances of both parties in making its decision.

In reaching its decision, the court considered the evidence presented by both parties, focusing on the nature of their contributions and the standard of proof required to establish their respective cases. It was noted that the court, having observed the demeanour and cross-examination of the parties, found that neither party should receive an adjustment based on the factors under s 79(4)(d)-(g) of the Act. The court concluded that a 50/50 division of the net property was just and equitable, taking into account the parties' various contributions and their current situations. Superannuation was also included in the property pool, with a specific order made for the division of the self-managed superannuation fund in favour of the wife. The wife was ordered to retain two properties, with a corresponding cash adjustment to the husband, and the husband was to retain his interest in several business entities.

The court's final orders mandated a 50/50 distribution of the net property, including specific directions for the transfer of real property, payment of a cash adjustment, and the division of personal assets and business interests. The wife was to retain two properties, with the husband indemnifying her against any liabilities associated with these properties. The husband was to retain his interest in several business entities, indemnifying the wife against any liabilities related to these entities. The court also provided for the division of superannuation entitlements and outlined the process for closing joint accounts and severing joint tenancies. The orders aimed to finalise the financial relationship between the parties and avoid further proceedings, subject to the parties' liberty to apply to the court for enforcement or modification of the orders.

Orders

Orders of the court

MLC 5852 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MILEY

Applicant

AND:

MR MILEY

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

19 JANUARY 2024

THE COURT ORDERS THAT:

1. The net property pool of the parties inclusive of superannuation entitlements be distributed as to 50 per cent to the husband and 50 per cent to the wife in accordance with these Orders.

2. Within sixty (60) days from the date of this Order the respondent Mr Miley (“the husband”) shall transfer to the applicant Ms Miley (“the wife”) all his right, title and interest in the property situate at B Street, Suburb C in Victoria and the wife shall be solely responsible for the payment of all amounts payable in respect of any mortgage payments for the property and all rates, taxes, insurances and any other outgoings and shall indemnify and keep indemnified the husband.

3. Contemporaneously with the transfer of the property in Order 2 herein the wife shall pay to the husband the sum of $1,382,169.50.

4. Should the wife be unable or unwilling to make a cash adjustment to the husband as set out in Order 3 above then the parties or either of them have leave to apply to the Court for orders for the sale of either or both of the properties situate and known as B Street, Suburb C in Victoria and D Street, Town E, Region T in the United Kingdom.

5. The wife shall retain the following to the exclusion of the husband:

(a) D Street, Town E, Region T in the United Kingdom and the wife shall be solely responsible for the payment of all amounts payable in respect of the mortgage payments for the property and all rates, taxes, insurances and any other outgoings and shall indemnify and keep indemnified the husband in respect of any other liability including but not limited to any tax liability associated therewith and provide the husband with a discharge of his obligations under any such mortgage within sixty (60) days of the date of these Orders.

(b) the F Bank UK bank account in her sole name;

(c) the Westpac bank accounts in her sole name;

(d) all personalty and chattels in the possession or control of the wife;

(e) Motor Vehicle 1 in her possession;

(f) any superannuation entitlement of the wife; and

(g) her interest in Superannuation Fund 1.

6. The husband shall retain the following to the exclusion of the wife:

(a) the G Bank accounts ending in #...82 and # …71 and the ANZ bank account (Estate of Ms H);

(b) Motor Vehicle 2 in his possession;

(c) Motor Vehicle 3 in the possession of the parties’ son;

(d) the recreational vehicle in his possession;

(e) his shares in any public listed companies;

(f) his superannuation entitlement;

(g) his interest in Superannuation Fund 1; and

(h) all personalty and chattels in the possession or control of the husband.

7. The wife sign all documents and do all such things as may be required to transfer to the husband all her right, title and interest in the following entities and the husband indemnify the wife in respect of any liability whatsoever, including but not limited to tax liability, past present and future relating thereto:

(a) J Pty Ltd;

(b) K Pty Ltd; and

(c) L Pty Ltd as trustee of the Miley Family Trust and the wife resign as appointer of the trust and any other office she holds;

8. The parties sign all documents and do all things as may be required to rollover, rollout or transfer to the wife’s member balance in the self-managed Superannuation Fund 1 (the “SMSF”) to a superannuation fund of the wife’s choosing in accordance with Regulation 7A.12 of the Superannuation Industry Supervision (Regulations 1994) (Cth) at the husband’s expense.

9. Upon giving effect to the rollout or transfer of the wife’s interest in the SMSF, the wife resign as director and office holder of M Pty Ltd as trustee of the SMSF and the husband indemnify the wife in respect of any liability whatsoever, including but not limited to any tax liability, past present and future in relation thereto.

10. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party, as at the date of these Orders;

(b) the parties do all things and sign all documents to forthwith close all joint accounts and any monies standing to the credit of the parties in those joint accounts shall be distributed as to 50 per cent to the husband and 50 per cent as to the wife;

(c) the parties do all things and sign all documents to forthwith close the joint account with a debit of approximately $1,500 and the wife will be responsible for payment of that amount in order to close the account;

(d) monies standing to the credit of the parties in any bank account shall remain the property of the account holder;

(e) all insurance policies remain the sole property of the owner named thereon;

(f) each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these Orders;

(g) each party be solely liable for and indemnity the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

(h) any joint tenancy of the parties in any real or personal estate is expressly severed.

11. There be liberty to the parties to apply to the Court generally in respect of the execution of these Orders.

12. Pursuant to s 81 of the Family Law Act 1975 (Cth) the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

13. All extant property and financial applications be dismissed except costs applications between the parties, if any, which are to be dealt with in accordance with the Family Law Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

The husband seeks orders, also on a one pool basis, whereby he received 55 per cent of the net property pool. BACKGROUND FACTS The husband is 63 years of age and the wife is 55 years. The wife says that the parties commenced cohabitation in 1999 and married in 1999. The husband agrees in his affidavit material that the parties married in 1999 but says that they commenced cohabitation in 2000. In the circumstances, nothing turns on this minor discrepancy. The parties separated on 1 October 2018. It follows that cohabitation was of some 19 years duration. There are two adult children of the marriage namely Mr N (aged 22 years) and Ms P (aged 20 years). Both children are independent but where Mr N continues to live with the husband and Ms P continues to live with the wife and where each of the parties claims some continuing responsibility for the support of the respective children. The husband worked with Q Company through the relationship until 2016. Where he says that he worked in “sales”, the husband’s evidence showed him to have a detailed knowledge of the relevant industry. As long ago as 2011 the parties registered a company, K Pty Ltd. The husband is the sole director. The parties are equal shareholders. J Pty Ltd was registered in 2016. I understand it to be a consulting business. The husband is the sole director. He holds 32 shares. The wife holds 10 shares. Two other parties each hold 18 shares. L Pty Ltd holds 10 shares. L Pty Ltd is the Trustee of the Miley Family Trust which seems to be the dominant entity for the parties’ day-to-day business. An interim order sees the husband having recent control of the business entities. The wife also has skills and experience in the same industry and holds a tertiary qualification. She continues to work as a consultant outside the parties’ business and where the income from the business entities is directed to the husband in the interim.THE ISSUES Final submissions of counsel for the wife and the submissions of the husband in person suggest that the property pool in respect of contents and valuation is essentially agreed with a few minor remaining disputes. The parties disagree as to the nature and impact of each of their initial financial contributions. Submissions suggested that the husband might argue a superior financial contribution during the course of the relationship but where his submissions, put in a general sense, are that there should be no adjustment overall on the basis of contributions. The parties each argue for adjustments specifically referenced to s 75(2)(o) of the Family Law Act 1975 (Cth) (“the Act”) broadly, and often without specificity, on account of alleged “wastage” or dissemination of assets and on account of the paid legal costs. The husband argues for an adjustment on account of the relevant s 75(2) factors and particularly in respect of his health and hence his ongoing employability relative to that of the wife. In summary, therefore, the wife argues for a 65/35 per cent distribution of the assets in her favour with a 15 per cent loading to her on account of asserted superior contributions. The husband argues for a 55/45 per cent alteration of the parties’ property interests in his favour with a 5 per cent loading on account of the relevant s 75(2) factors.THE RELEVANT LAW

Evidence

Evidence Before The Court

The entire process of consideration and determination is permeated with an understanding of justice and equity. THE EVIDENCE Where there are issues of disputed fact and credit between the parties, the Court is called upon to make findings of fact which it does so on a standard of on the balance of probabilities consistent with s 140 of the Evidence Act 1995 (Cth) which provides in respect of civil proceedings: (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject-matter of the proceeding; and(c) the gravity of the matters alleged. The rationale of enshrining the standard of proof in statute can be seen in the oft quoted passage of the High Court (Dixon J) in Briginshaw v Briginshaw:[5]…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[5] (1938) 60 CLR 336 at 361-362. Put simply, a party making an assertion of fact carries the onus of proof to the standard of on the balance of probabilities. In matters such as that now before me where there are numerous issues of disputed fact and credit and where often corroboration in the form of independent evidence or documents are not available, the Court has the benefit of seeing and hearing the parties give their evidence and be cross-examined. In Galea & Galea[6] Kirby AJC considered the advantages available to trial judges including the following: (a)The hearing of the evidence in its entirety.(b)Hearing and seeing all evidence in context, chronologically and logically advanced.(c)Having time during adjournments and during the running of the case to reflect upon the evidence and to weigh against all other evidence whilst fresh.(d)Hearing and seeing interruptions, hesitations and delays in the giving of testimony.(e)Observing body language sometimes important for interpreting communication.[6] (1990) 19 NSWLR 263. Nevertheless, the authorities also make it clear that the Court should be aware of the pitfalls of giving too much credence solely to the demeanour of a party or witness when considering the veracity of the evidence.[7] Notably, in the matter before me, the wife had the advantage of solicitors and counsel whereas the husband was self-represented in the conduct of the trial. He was in an unfamiliar environment in the court room. Parties are likely to be nervous, restrained and careful in giving their evidence unless they fall into error or accidental disclosure. Similarly, as appears to be common in family law matters, parties in their evidence are always keen to shore up their own case whilst emphasising the negative of the other party’s case.[7] Fox v Percy (2003) 214 CLR 118, [2003] HCA 22.THE WIFE

Decision

Reasons for decision

In all of those circumstances, I propose to make no adjustment to either of the parties on account of considerations under s 79(4)(d) – (g) including s 75(2) of the Act. CONCLUSION In all the circumstances, therefore, I am of the view that a 50/50 division of the net property of the parties is just and equitable giving proper consideration and weight to their various contributions and the current circumstances of each. Given the parties ages and, in particular, the fact that the husband is at an age where his superannuation entitlement may be crystallised, and where the relationship was a long one with the above-mentioned myriad of contributions towards the parties’ wealth generally, I propose that superannuation be treated in the same pool as the tangible assets. I note that the parties prefer an order that the husband retain the benefit of the self-managed Superannuation Fund 1and a splitting order will be made in respect of the wife’s entitlement. The orders contemplate the wife retaining the two pieces of real property as was her case, where, however, this will require a cash adjustment on the husband of $1,382,169.50. I will give leave for the parties or either of them to return if the wife is unable or unwilling to make such cash payment.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.