Mistle & Mistle

Case [2010] FamCA 29

FAMILY COURT OF AUSTRALIA

MISTLE & MISTLE [2010] FamCA 29

FAMILY LAW – PROPERTY – parties have suffered major medical conditions during the marriage – where parties have received significant financial gifts from their parents – initial contributions – post separation inheritance – source of funds to discharge mortgages - post separation support of adult children who are not self supporting – wife’s future earning capacity – s 75(2) factors – very substantial adjustment in favour of the wife

FAMILY LAW – EVIDENCE – SECTION 136 of the Evidence Act - the information which is provided to single experts appointed by parties pursuant to the Rules of Court - Rule 15.54(2) - Rule 15.54(3) - wife provided a history to each of the medical experts retain by the parties jointly for the purpose of obtaining a report - history provided by the wife to each doctor was not authorised by the husband - each party clearly expected that the wife would subject herself to physical examination
Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)
Family Law Rules 2004
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey (2003) FLC 93-143
McLay and McLay (1996) FLC 92-667
APPLICANT: Ms Mistle
RESPONDENT: Mr Mistle
FILE NUMBER: SYC 4112 of 2007
DATE DELIVERED: 22 January 2010
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Le Poer Trench J
HEARING DATE: 10 & 11 August, 28 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson
SOLICITOR FOR THE APPLICANT: Shepherds the Family Lawyers
COUNSEL FOR THE RESPONDENT: Mr Simpson SC
SOLICITOR FOR THE RESPONDENT: N/A

Orders

  1. On or before the close of business on Friday 5 March 2010 the wife is to pay the husband the sum of $27,230.

  2. In exchange for the payment required in Order 1 hereof the husband is to deliver to the wife a signed transfer of his interest in the property known as B property being the whole of the land more particularly described in Certificate of Title Folio Identifier … (“the matrimonial home”). The transfer is subject to the mortgage registered on or secured against the property and the wife is to indemnify the husband against any payment required of him by the mortgage.

  3. Within 14 days of the date hereof the wife will sign all documents and do all things necessary to transfer to the husband her right title and interest in Mistle Pty Limited and T Pty Limited and resign from all positions held by her in the said companies.

  4. The husband is to indemnify the wife and keep her indemnified against any proceedings, suits, or claims of whatsoever nature in relation to or arising out of the wife’s shareholding or positions in Mistle Pty Limited and T Pty Limited.

  5. Each party be declared the sole and beneficial owner of any other property presently in their possession or control.

  6. For the purpose of this Order “the Fund” means the Mistle Superannuation Fund.

    (i)Within 30 days of the date of the making of these Orders the…

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AGLC
Mistle & Mistle [2010] FamCA 29
Case
[2010] FamCA 29
Decision Date

CaseChat Overview and Summary

The case of Mistle & Mistle concerned a dispute over the division of property between a husband and wife. The court was required to determine the extent to which various financial contributions, including significant gifts from parents, initial contributions, and post-separation inheritances, should be taken into account in the property settlement. Additionally, the court considered the post-separation support of adult children and the wife's future earning capacity as relevant factors under section 75(2) of the Family Law Act.

The court was tasked with resolving conflicting evidence regarding the receipt and application of substantial financial gifts from the parties' respective mothers. Specifically, the husband's claims regarding payments received from his mother were challenged due to a lack of documentary evidence and inconsistencies in his accounts of how the funds were used. The wife also presented evidence of significant financial assistance received from her mother. Furthermore, the court had to assess the nature of contributions made by the parties towards the support of their children post-separation, distinguishing between gifts and necessary expenses.

In its reasoning, the court applied principles of evidence to weigh the credibility of the parties' claims, particularly concerning the husband's disputed financial contributions. The court noted the absence of corroborating documentation for some of the alleged payments and the husband's presentation of multiple, differing accounts regarding the use of funds. The court also considered the nature of the wife's mother's financial assistance to the children, distinguishing between gifts and contributions towards necessary expenses. The court ultimately found that both parties had significantly supported their children post-separation, but the wife had not sufficiently demonstrated that certain expenses, such as the provision of motor vehicles, were necessary rather than generous gifts.

The court made orders for the division of property, including the transfer of interests in a property and companies, and financial adjustments between the parties. The wife was ordered to pay a sum to the husband, and in exchange, he was to transfer his interest in the matrimonial home to her, subject to the existing mortgage which she was to indemnify him against. The wife was also to transfer her interests in certain companies to the husband, who would indemnify her against any liabilities arising from her previous shareholding. Each party was to retain other property in their possession, and the wife was to transfer her superannuation entitlements. The court also provided for liberty to apply for further orders to implement the settlement and dismissed all other outstanding applications.

Orders

Orders of the court

1.

On or before the close of business on Friday 5 March 2010 the wife is to pay the husband the sum of $27,230.

2.

In exchange for the payment required in Order 1 hereof the husband is to deliver to the wife a signed transfer of his interest in the property known as B property being the whole of the land more particularly described in Certificate of Title Folio Identifier … (“the matrimonial home”). The transfer is subject to the mortgage registered on or secured against the property and the wife is to indemnify the husband against any payment required of him by the mortgage.

3.

Within 14 days of the date hereof the wife will sign all documents and do all things necessary to transfer to the husband her right title and interest in Mistle Pty Limited and T Pty Limited and resign from all positions held by her in the said companies.

4.

The husband is to indemnify the wife and keep her indemnified against any proceedings, suits, or claims of whatsoever nature in relation to or arising out of the wife’s shareholding or positions in Mistle Pty Limited and T Pty Limited.

5.

Each party be declared the sole and beneficial owner of any other property presently in their possession or control.

6.

For the purpose of this Order “the Fund” means the Mistle Superannuation Fund.

(i) Within 30 days of the date of the making of these Orders the wife will do all acts and things and sign all documents and vote in favour of all resolutions to transfer her superannuation entitlements in the Fund as at the date hereof to another fund as notified by the wife in writing;

(ii) Thereafter the wife shall do all acts and things and sign all necessary documents submitted to her by the husband so that she ceases to be a member of the said fund;

7.

Each party is to 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.

8.

The husband has leave to apply to the court for an order for sale of assets of the wife in the event that she does not pay to him the sum of $27,230 as provided for in Order 1 hereof.

9.

Each party has liberty to apply to seek further orders necessary to implement the orders made herein.

10.

All outstanding applications are otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The husband provided the following submission on this issue:Is there evidence to establish the Husband received the funds referred to at paras. 29.1 to 29.4 of his affidavit and the post separations payments Nos. 1 to 11.29.The Wife puts in issue the payments made and referred to in the Husband’s affidavit and that of his mother being the payments …i)1991 of $3,000;ii)1997 of $40,000;iii)13 August 1998 of $250,000 (as to which the cheque butt identifies the cheque as in favour of the parties’ mortgage)[22]; and[22] Affidavit F Mistle filed 23 April 2009, Annexure “A”.iv)13 August 1998 of $90,000.and the payments 1 to 11 appearing at page 9.The Wife does not, however, deny these payments and limits herself to a non-admission.30.The cross-examination of the Husband was essentially limited to the fact that the Husband’s bank accounts did not record receipt of the post separation payments identified as Nos. 1 to 11 at page 9 and there were no records evidencing receipt of the four payments made between 1991 and 1998 identified in paragraphs 29.1 to 29.4.31.There is no evidence to the contrary of the Husband’s mother and himself in relation to these.32.The Husband’s mother deposed to having an independent recollection of the payments of $3,000 and $40,000[23] although not having the cheque butts and statements at the time of her affidavit. 33.The bank statements tendered pursuant to the leave granted at the conclusion of the trial record debits of $250,000 and $90,000 in 1998 consistent with the cheque butts. (I note I cannot find these documents)34.The payments were also consistent with the undisputed history of advances by the Husband’s mother made to or for his benefit and no plausible reason why the Husband’s evidence might not be accepted was put to him in cross-examination.35.As to the post separation payments, the absence of a record of deposit to the Husband’s account is because the evidence of his mother as appears in paragraph 2 of her affidavit was that on some of the occasions that she provided money to him it was by cheque payable to a third party and provided to the Husband. Reference to page four of the affidavit of the Husband’s mother discloses that the 11 payments in question and recorded at page 9 were payments to third parties.36.The Husband further produced in reply and annexed to his affidavit sworn 12 August 2009 documents confirmatory of his receipt of the benefit of nine of these post separation payments.37.The position is therefore that all the evidence is that the payments were made and the Husband received the benefit of them.[23] Affidavit F Mistle filed 23 April 2009, para. 3. The wife’s submission on this issue is as follows:The parties’ respective mothers’ contributions 37.The unchallenged evidence from the Wife is that her mother to date has assisted her with a total amount of $420,318, which was applied for the benefit of the parties and the children, (see the Wife’s longer affidavit sworn 3rd June 2009). 38.The Husband’s position is to argue that his mother’s contributions prior to her death amounted to a total of $612,000. 39.During the course of the trial the Husband, however, was subject to some challenges in relation to a portion of the monies which he alleges was received from his mother. There is a document marked in the hand of by Mr Shepherd, the Wife’s solicitor, and written in February 2009, which indicates that as of February 2009, the Wife was still not satisfied that the Husband had presented all necessary documents to confirm and verify that he had been the beneficiary of the monies he states he had received from his mother during the years of the marriage, and during the period of post separation. (See Exhibit “X”) 40.In respect to sub-paragraphs 29 (1), (2), (3) and (4), of his affidavit sworn 4th June 2009, the Husband was subject to cross-examination about payments made allegedly by his mother for the amounts totalling, according to the affidavit evidence, $383,000. a.In respect to 29 (1) and (2), being 1991 and 1997 alleged payments, there is no evidence whatsoever to verify a payment totalling $43,000. For example, there are no cheque butts or bank statements that would confirm such amounts.42.In respect of the payments referred to in subparagraphs (3) and (4) at paragraph 29, being both payments allegedly made by the Husband’s mother on 13 August 1998 for the total amount of $340,000, the primary issue is the credibility of the Husband’s various positions taken. 43.The Husband presented no evidence as to where this money went to in relation to any bank accounts. 44.Then, in the absence of any verified documentation, he then presents three different versions as to what became of the money. 45.The first version is referred to in his affidavit where he suggests that the money went towards the payment of a mortgage. Herein the Husband says at paragraph 31 of his 4th June 2009 affidavit:“In August 1998 my mother gave me two sums of money being $250,000 and $90,000. I used this to reduce the mortgage over the property in which we lived in at [B]. This reduced the mortgage from approximately $740,000 to $30,000.”46.The Husband then presented a different version under cross-examination. Herein he testified initially said the vast majority went to the mortgage plus loan for surgery equipment. He then said that $90,000 went to a "debt of mine" and $250,000 to ANZ. This, of course, is different to paragraph 31 of his Affidavit. The Husband then said that his Affidavit was wrong and confirmed that the $250,000 went the mortgage and $90,000 to a "debt of mine”.47.The third and different version appears in a letter from the Husband’s solicitor, which is annexed as Exhibit X4 in these proceedings. 48.In light of the absence of any documentation germane to such payments benefitting the husband, as well as these three different versions, it is submitted that little weight can be given the extent of this alleged payments representing contributions that should be attributable to the Husband.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The husband in his submission identified the issue as:Post Separation Contributions made by each party to the support of the children:Unfortunately what then follows under that heading does not address the issue. The husband sets out in paragraph 67 of his affidavit the money paid by him as a post separation contribution. The contributions are extensive. There is no suggestion that the husband has a liability to the Child Support Agency in relation to D who was the only child under 18 at the time of the separation. D was just 17 when the parties separated. The wife’s evidence is not specific in setting out what was expended by her in the support of the children post separation. She was questioned about her claimed Amex expense of $1000 per week. She said there were additional cards for each of the children. She was asked whether the $1000 per week was an average over the last three months. She said no it was the average post separation. She admitted that between April 2009 and August 2009 her average monthly Amex account was $2,250. The wife explained that each of the children has a supplementary card on her Amex account however S had not been using the card. She had been paying cash for purchases. The wife agreed that D was incurring about $300 to $400 per month on the card. The wife agreed that the husband has probably paid two thirds of the payments falling due on the mortgage on the B property since separation. The wife said that at the date of separation each of the children had several thousand dollars in ANZ bank accounts. Whilst being cross-examined on the way she conducts her medical practice the wife told me that she has not engaged a receptionist since her mother ceased assisting her in that role. However, she did say her children assist her as “my receptionist”. The wife was asked about the expense contained in her tax return of $8,000 for “staff amenities”. She confirmed that since her mother ceased assisting her she has had no staff. She did not think it was money paid to the children for their assistance. In re-examination the wife told me that in about March 2009 she received $13,000 as a back payment for unpaid Family Allowance. I conclude this issue by determining that each of the parties has significantly supported the children (whether adult or otherwise) since the separation. The wife’s mother has made contributions to the children. It is difficult to categorise those contributions as they may well fall into the description of “gifts from a grandparent to a child of the marriage”. Such as gift would not normally be seen as a contribution made by or on behalf of a party. That situation is usually contrasted with a circumstance where necessary expenses associated with the support of children are met by a grandparent as the parents cannot afford to meet such expense. In this case the wife has not established to my satisfaction that she could not meet the expenses associated with the necessary living and educational expenses from her own income and resources. In the absence of specific evidence I could not be satisfied that motor vehicles for each of the children (as apparently supplied by the wife’s mother) were necessary items for their support as opposed to being a generous gift from a grandparent.