Milla & Oran

Case [2023] FedCFamC1F 1049

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Milla & Oran [2023] FedCFamC1F 1049

File number: MLC 4105 of 2020
Judgment of: MCGUIRE J
Date of judgment: 22 December 2023
Catchwords: FAMILY LAW – PROPERTY – Application by husband for the alteration of property interests – Where there are evidentiary deficiencies on the cases of both parties – Contributions – Dispute as to add-backs to the pool – Dispute as to status of advancements – Where it is just and equitable to adjust the parties’ net property interests as to 51 per cent to the husband and 49 per cent to the wife
Legislation: Family Law Act 1975 (Cth) ss 79, 79(2) and (4)
Cases cited:

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

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

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

Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Division: Division 1 First Instance
Number of paragraphs: 55
Date of last submissions: 20 October 2023
Date of hearing: 16 and 31 August 2023
Place: Melbourne, delivered in Sydney
Solicitor for the Applicant: Litigant in Person
Counsel for the Respondent: Ms Marshall
Solicitor for the Respondent: Regina L Schaefer Property & Conveyancing

ORDERS

MLC 4105 of 2020

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

MR MILLA

Applicant
AND:

MS ORAN

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

22 DECEMBER 2023

THE COURT ORDERS THAT:

1.All previous orders be discharged.

2.The net property pool of the parties inclusive of superannuation entitlements be distributed as to 251 per cent to the husband and 49 per cent to the wife in accordance with these Orders.2

3.Within thirty (30) days from the date of this Order the respondent Ms Oran (“the wife”) shall transfer to the applicant Mr Milla (“the husband”) all her right, title and interest in the property situated at B Street, Suburb C in Victoria and the husband 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 wife and where appropriate to provide the wife with a discharge of her obligations under any such mortgage within thirty (30) days of the date of these Orders.

4.Within thirty (30) days from the date of this Order the wife shall transfer to the husband all her right, title and interest in the property situated at 1 D Street, Suburb E in Victoria and the husband 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 wife and where appropriate to provide the wife with a discharge of her obligations under any such mortgage within thirty (30) days of the date of these Orders.

5.Contemporaneously with the…

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Milla & Oran [2023] FedCFamC1F 1049
Case
[2023] FedCFamC1F 1049
Decision Date

CaseChat Overview and Summary

The case of Milla & Oran involves a property division dispute between the husband and wife. The husband applied for an adjustment of property interests following their separation in December 2019. The husband is self-employed, while the wife is a professional. The husband had made an unusual request that the name of his business be withheld, which was granted by the court, referring to the business as H Company. The court noted the absence of evidence regarding the valuation of H Company or any other assets, and both parties had not remarried or engaged in any dependency or support relationships.

The legal issues the court had to decide involved the distribution of property interests in accordance with section 79 of the Family Law Act 1975 (Cth). The court considered the contributions of both parties and the status of advancements and add-backs to the property pool. It was determined that it was just and equitable to divide the net property pool as 51% to the husband and 49% to the wife. The court calculated the net value of the property pool to be $2,341,336, resulting in the husband receiving property valued at $1,194,081.36 and the wife receiving property valued at $1,147,254.64. Consequently, the husband was ordered to make a cash adjustment of $555,545.64 to the wife. The court also ordered specific properties and assets to be retained by each party, and procedures for the sale of certain properties and the engagement ring to settle the cash adjustment.

The court concluded that the proposed orders were just and equitable, considering the circumstances of the parties' relationship and the evidence presented. The husband was given the option to retain his preferred properties if he could make the required payment, but if he failed to do so, the court ordered the sale of one of the properties to satisfy the adjustment. The court also ordered the sale of the wife's engagement ring, with the net proceeds to be divided according to the percentage distribution of the property pool. The court granted the parties leave to apply for the execution of these orders and dismissed all extant property and financial applications, except for costs applications between the parties. The court noted that the orders were intended to finally determine the financial relationship between the parties and avoid further proceedings, subject to any necessary review or variation.

Orders

Orders of the court

MLC 4105 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MILLA

Applicant

AND:

MS ORAN

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

22 DECEMBER 2023

THE COURT ORDERS THAT:

1. All previous orders be discharged.

2. The net property pool of the parties inclusive of superannuation entitlements be distributed as to 251 per cent to the husband and 49 per cent to the wife in accordance with these Orders.2

3. Within thirty (30) days from the date of this Order the respondent Ms Oran (“the wife”) shall transfer to the applicant Mr Milla (“the husband”) all her right, title and interest in the property situated at B Street, Suburb C in Victoria and the husband 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 wife and where appropriate to provide the wife with a discharge of her obligations under any such mortgage within thirty (30) days of the date of these Orders.

4. Within thirty (30) days from the date of this Order the wife shall transfer to the husband all her right, title and interest in the property situated at 1 D Street, Suburb E in Victoria and the husband 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 wife and where appropriate to provide the wife with a discharge of her obligations under any such mortgage within thirty (30) days of the date of these Orders.

5. Contemporaneously with the transfer of the properties in Orders 3 and 4 herein the husband shall pay to the wife the sum of $555,545.64.

6. In the event that the husband fails to make the payment to the wife, in accordance with Order 5 herein, within thirty (30) days of the date of these Orders the property at 1 D Street, Suburb E in Victoria shall be forthwith placed on the market for sale by an estate agent with the husband to do all things necessary to co-operate with the sale and the husband pay and indemnify the wife from payment of all liabilities falling due in relation to the property including but not limited to mortgage repayments, rates, land tax, water charges and levies.

7. Should the parties not agree a real estate agent then the wife is to nominate three (3) suitably qualified agents and the husband then within seven (7) days to elect one agent from the nominees following which the parties are to jointly instruct the agent on the sale with the parties to accept the advice of the agent as to whether the sale be effected by auction or private treaty and the agents advice from time to time as to sale price or reserve price.

8. The proceeds of sale of the property at 1 D Street, Suburb E in Victoria (“the 1 D Street property”) be applied as follows:

(a) to discharge the mortgage and any other encumbrances effecting the D Street property;

(b) to pay all Real Estate Agent’s costs, commissions and expenses of the sale of the 1 D Street property;

(c) to pay any rates, land tax, water charges and levies outstanding in respect of the 1 D Street property;

(d) to pay the solicitor’s costs in relation to the sale of the 1 D Street property; and

(e) the remaining net proceeds of sale shall be divided between the parties so as to effect a settlement of the net property of the parties pursuant to the Reasons herein as to 51 per cent to the husband and 49 per cent to the wife.

9. Within thirty (30) days from the date of these Orders the husband shall transfer to the wife all his right title and interest in the property situated at F Street, Suburb G in Victoria 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 and where appropriate to provide the husband with a discharge of his obligations under any such mortgage within thirty (30) days of the date of these Orders.

10. Within fourteen (14) days from the date of these Orders the wife shall nominate three professional sellers to commission the sale of the engagement ring in her possession and provide a list of such nominations to the husband who will notify the wife within a further period of fourteen (14) days of his election of one of those three professional sellers to sell the said engagement ring whereupon the engagement ring in the possession of the wife is to be offered for sale by the seller nominated by the husband in Order 10 with the parties to accept the advice of the selling agent as to mode of sale and sale price from time to time and the proceeds of sale be applied as follows:

(a) to pay all costs, commissions and expenses in respect of the sale of the engagement ring; and

(b) the remaining net proceeds of sale shall be divided between the parties so as to effect a settlement of the net property of the parties pursuant to the Reasons herein as to 51 per cent to the husband and 49 per cent to the wife.

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

(a) the business registered as a business name in the husband’s name alone;

(b) the proceeds of sale from the sale of Motor Vehicle 1, Motor Vehicle 2 and Motor Vehicle 3;

(c) all personalty and chattels in the possession or control of the husband;

(d) his superannuation; and

(e) the balance of any bank accounts or like investments in the name of or to the benefit of the husband as of the date of these Orders.

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

(a) Motor Vehicle 4 in her possession;

(b) her Commonwealth Bank Shares;

(c) the balance in the Offset account;

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

(e) her superannuation; and

(f) the balance of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these Orders.

13. The husband shall indemnify and keep indemnified the wife in respect of his liability to the Australian Taxation Office.

14. 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 51 per cent to the husband and 49 per cent as to the wife;

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

(d) 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;

(e) 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

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

15. There be liberty to the parties to apply in respect of the execution of these Orders.

16. 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.

17. 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

It is proper to point out, and without criticism of the husband, but where the Courts now more frequently encounter such difficulties with self-represented litigants, that the husband had no understanding of the onus and burden of proof in making assertions of fact. He frequently, both during the evidence and in his final submissions, referenced such assertions in the sense that the Court should accept them as fact but where, in reality, evidence was not given or adduced as proof of such fact(s) to the requisite standard of on the balance of probabilities or, often without any evidence at all. Again, I do not to make this statement in criticism of the husband but simply to point out that the complexities of this litigation in a sense overwhelmed him and where his efforts in preparation of his case including a trial affidavit and annexures totalling near 900 pages demonstrates the serious intent with which he embraced the litigation, but where he failed to grasp or address the fundamental principles of s 79 of the Act.BACKGROUND Where there remains a plethora of factual dispute, I accept that the parties commenced a relationship in about 2008. Their employment and living arrangements caused this to be a “distance” relationship for the great majority of its duration, but where their commitment to the relationship was evidenced by an intermingling of finances from about 2008. Nevertheless, where the husband in his final submissions describes the relationship as never more than “an engagement”, it is clear from the evidence of both of the parties that there was a commitment in the relationship, a marriage and, importantly for my consideration, joint financial decision making and contributions from an early date. The parties were married in 2012. There are no children of the relationship. The parties separated in December 2019. The wife is a professional. The husband is self-employed in his business. For reasons that escape me, the husband asked that the name of his business not be disclosed in these Reasons. Whilst being an unusual request, but where the business is operated only in the name of the husband, I am prepared to accede his application and the business, if reference is needed, will be known as H Company, but where notably neither party adduced any valuation evidence or even evidence as basic as an inventory of plant and equipment. There is no evidence before me of either of the parties having re partnered in any relevant dependency or support manner. There is no evidence that either of the parties is not otherwise than in good health.RELEVANT LAW The Act at s 79 provides the Court with power to alter the interests of parties in property. “Property” includes assets and liabilities and where “superannuation” is to be treated as property for the purposes of the determination. It is available to the Court to deal with superannuation as distinct from the “tangible assets” on a two-pool basis or together on a one‑pool basis. In this matter where it is only the wife who has superannuation of any real value much of which was accrued during the course of the relationship from 2008 and where the husband has minimal superannuation entitlements, I determine to deal with superannuation on a “one-pool” basis together with the other assets and liabilities.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Neither party seeks any adjustment from the Court by reason of the s 75(2) considerations. Where both parties are in employment and in good health, I consider this to be the appropriate position.CONCLUSION Consequently, the property pool which I find has net value of $2,341,336 is to be divided as to 51 per cent of the husband and 49 per cent of the wife. I calculate the husband would receive property to a value of $1,194,081.36. The wife would receive property to a value of $1,147,254.64. The husband will retain the following: The wife will retain the following: Consequently, I find that the husband must make a cash adjustment on the wife of $555,545.64 I am aware from his submissions that the husband may have limited borrowing capacity, although I have no evidence before me in proper form that this is the case. As such, I will give the husband the right to retain his preferred properties at B Street, Suburb C and 1 D Street, Suburb E but should he be unable to make payment of the adjustment on the wife failing which and as a default I will order the sale of the 1 D Street, Suburb E property with the net proceeds to be divided so as to give effect to the general percentage distribution of the property pool. I will order the sale of the wife’s engagement ring and similarly that the net proceeds be distributed according to the percentage distribution of the pool. I will order the sale by the wife nominating three professional sellers and the husband to make a choice from those nominees. After hearing the evidence of the parties, albeit with its limitations, I am satisfied that the proposed orders above do justice and equity to the circumstances of the parties’ relationship. I will give the parties leave to apply in respect of the execution of these orders.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.