Mosef and Mosef
[2017] FamCA 499
•17 July 2017
FAMILY COURT OF AUSTRALIA
| MOSEF & MOSEF | [2017] FamCA 499 |
| FAMILY LAW – PROPERTY ADJUSTMENT – Where parties agree that it would be unjust and inequitable not to alter parties’ property rights – Where consideration of parties’ contributions – Where consideration of relevant s 75(2) factors – Where mother out of work force for whole of cohabitation by reason of family or cultural expectations – Where father in gainful employment – Where mother who has little English has limited prospects of meaningful employment – Where appropriate that pool be divided in favour of mother. |
| Family Law Act 1975 (Cth) ss 75(2), 79, 79(1), 79(2), 79(4) |
| B & B (No 2) [2000] FamCAFC 734 Teal & Teal [2010] FamCAFC 120 |
| APPLICANT: | Ms Mosef |
| RESPONDENT: | Mr Mosef |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Dodson |
| FILE NUMBER: | PAC | 4109 | of | 2014 |
| DATE DELIVERED: | 17 July 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 18, 19 and 22 May 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Browns The Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Moutasallem |
| SOLICITOR FOR THE RESPONDENT: | Hajjar Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Campbelltown Family Law |
Orders
That, upon noting the terms of orders made 18 May 2017, within seven days from this date the father and mother do all things necessary to authorise and direct that the balance of funds after the payment provided for in such orders then held in a controlled money account in trust for them by R Solicitors be paid to the mother or as she may otherwise direct in writing.
That within two months from this date the father pay to the mother or as she may otherwise direct in writing the sum of $263,438.00 and in consideration of such payment the mother do all things necessary to transfer to the father her interest in the property at P Street, Suburb O NSW.
Liberty to apply as to implementation or enforcement of these orders.
It Is Otherwise Ordered By Consent
That within 90 days from this date the father and mother pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs the following sums:
(a) The mother $5,657.40 plus GST;
(b) The father $4,007.50 plus GST.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mosef & Mosef has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4109 of 2014
| Ms Mosef |
Applicant
And
| Mr Mosef |
Respondent
REASONS FOR JUDGMENT
Proceedings as to final parenting and property adjustment as between the applicant father and respondent mother were listed for hearing to commence 18 May 2017.
On 18 May 2017 certain orders were made as between the mother and her former solicitors in relation to the question of costs.
On 19 May 2017 final parenting orders were made by consent in relation to the three children of the parties’ relationship: F born in 1999, C born in 2010 and B born in 2003. The orders in summary provided:
a)that the father have sole parental responsibility for the children F and C;
b)that the mother have sole parental responsibility for the child B;
c)that the child C live with the father and spend school term and school holiday time and other special occasions with the mother;
d)that the child B live with the mother;
e)that the child F spend time with either parent as per his wishes.
Otherwise, orders were made for the mutual provision of information as to education and medical matters between the parents and that the parties engage in family therapy.
The matter thereafter proceeded for hearing and determination as to property settlement only.
The father in his Amended Initiating Application filed 7 February 2017 sought orders as to property that provided:
a)that funds presently held on behalf of the parties in a controlled monies account being the net proceeds of sale of the parties’ Suburb N property be divided as to $50,000.00 to the father and the balance to the mother;
b)that the mother transfer to the father her interest in the former matrimonial home at P Street, Suburb O.
In her Amended Response filed 20 February 2017 the mother sought a property settlement order to the effect that the former matrimonial home at Suburb O be sold and that the net proceeds of sale be paid as to 35 per cent to the father and 65 per cent to the mother.
Context
The mother is aged nearly 48. She has no skills, no work history and poor English notwithstanding that she has lived in Australia for about 20 years.
The father, who came to Australia aged nine, is aged nearly 52 and works as a manager. He asserts that he earns an income of about $600.00 per week plus supplementary Centrelink benefits.
The parties commenced cohabitation in mid-1997, married in the same year and separated in late July 2014 when the mother left the home. Overall a relationship of some 17 years.
There are four children of the parties’ relationship being the three children referred to above and their adult son Mr E aged 20. Mr E, who works as a tradesman, lives with the mother. The child F has now left school and is undertaking an apprenticeship.
The mother had two children, Mr U now aged 27 and Mr V now aged 23, from a previous relationship.
The father had a child Mr D from his previous marriage. Mr D is presently aged 22.
Affidavits
The father relied upon:
a)his trial affidavit filed 16 March 2017;
b)his updated financial statement filed 7 February 2017.
The mother relied upon:
a)with leave her affidavit filed 2 October 2014;
b)with leave her affidavit filed 2 December 2014;
c)her trial affidavit filed 31 March 2017.
Cohabitation
The mother separated from her previous husband in 1995.
At cohabitation the father owned a property at X Street, Suburb Y subject to mortgage. Shortly after the commencement of cohabitation the property was sold for $170,000.00 with the father receiving net proceeds of about $30,000.00 - $40,000.00.
The matrimonial home at Suburb O was then purchased for $117,000.00 with the purchase price comprising a mortgage of about $90,000.00 and the proceeds of sale of the Suburb Y property. The mortgage on the property was paid out about 15 years later in 2012.
In the context of this relationship the wife asserts that she was the primary carer for the three children of the marriage and provided significant care for the father’s son Mr D who was three years of age when she commenced cohabitation with the father.
The father worked shift work at Suburb Z from the commencement of cohabitation until about 2009 when he was diagnosed with a heart condition. The father commenced to receive a disability support pension due to heart issues in 2010. From about the middle of 2011 the father returned to shift work. In the year ended June 2012 his income was only $19,000.00, in 2013 only $22,399.00 and in 2014 only $21,588.00. It is clear that the family has been significantly supported by government benefits.
The mother asserts that the father has not been full and frank with the Court in relation to his income claiming that he gets paid for additional work in cash or by way of cash cheque. There is no evidence to support this contention. Yet the father acknowledges that he has never held full-time employment.
During the period of the relationship the father was in employment for various periods that involved shift work and that the mother devoted her full-time care and attention to all of the children in the household. The father assisted with the children subject to his shift work obligations.
The mother received some Centrelink benefits during cohabitation. It is to be inferred that these were received by way of parenting benefits as a consequence of the household’s low income.
There is also no issue that during the relationship there was conflict involving physical and verbal abuse between the mother and father. Since separation the children have variously lived with the mother and/or father until such time as some permanency in their arrangements have been put in place with the current final parenting orders.
Suburb N property
In 2013 the parties purchased a vacant block of land at M Street, Suburb N for the sum of $405,000.00. The whole of the purchase price was funded by way of collateral mortgage secured over the matrimonial home at Suburb O. The father asserts that some additional funds were borrowed from members of his family to meet the cost of stamp duty, to undertake some reservations to the matrimonial home and draw up some plans for a home to be constructed on the property. The father adduced no evidence supporting his contention that such borrowings, if indeed they were borrowings, remain outstanding.
The father could offer no explanation as to why his Westpac loan application for the mortgage on Suburb N revealed an income of $5,204.00 per month and an annual income of $81,952.00. He denied that he had made that representation to the bank and asserted that the bank had regard to not only his income but the income of his son Mr D for the purposes of the mortgage advance. His repayment obligations under the mortgage were about $550.00 per week that clearly represented a significant proportion of his available income. The father suggested that his son Mr D helped him with mortgage payments.
Overall there is circumspection as to the father’s true income circumstances.
The Suburb N property was sold pursuant to interim property orders made on 17 September 2015. The property sold for $800,000.00 and after discharge of the outstanding mortgage encumbrance and a distribution of $100,000.00 to each of the parties, a payment to legal aid for the single expert’s fees in relation to parenting a balance of about $150,000.00 remains in the solicitor’s trust account.
The husband deposes in his updated financial statement to having accumulated superannuation entitlements of $6,500.00 with BT super. In his oral evidence he revealed that his superannuation balance was $32,000.00 but that he had withdrawn funds to purchase a TV, furniture and work on the kitchen in 2013 prior to separation.
The father has continued to remain in occupation of the matrimonial home since separation in mid-2014.
Property adjustment
The approach to the determination of an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship. Such is the case in this matter.
In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property as does the husband.
It is common ground that it would thus be unjust or unfair to leave the parties’ present property rights intact where there remains common ownership and discrete assets are sought by each.
Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g), in particular, the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
The “Pool”
The parties provided to the Court a substantially agreed balance sheet (Exh “G”).
It was not contended that there should be other than a one pool approach.
The balance sheet comprises:
Joint P Street, Suburb O $ 620,000.00
Joint Controlled Monies Account $ 147,000.00*
Wife German car $ 12,000.00#
Husband Japanese car $ 2,500.00
Husband CBA account $ 1,500.00
Husband NRMA $ 1,100.00
Husband Contents $ 5,000.00
Husband Interim property payment $ 100,000.00
Wife Interim property payment $ 100,000.00
Husband BT Superannuation $ 6,012.00
$ 995,112.00
*After payment of balance to Single Expert of $3,000.00.
#The wife contended that her car should be omitted as she has a loan from her son for the cost of purchase. No evidence was adduced from him to support this contention. The car will remain in.
The wife further contended that the husband’s superannuation should comprise an addback of the funds withdrawn by him. Yet his benefit statements reveal no withdrawal post separation. Such is consistent with his assertion of funds drawn for matrimonial purposes pre separation. The current figure will be used.
Contributions
The assessment of contributions was considered years ago in Harris & Harris (1991) 15 Fam LR 26 at [31] the Full Court said:
…In assessing contributions “the task of the court in proceedings under section 79 (and thus s90SM(4)) is not akin to an accounting exercise. To borrow a phrase used by McClelland J in Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688 at 689 in relation to section 20 of the De Facto Relationships Act 1984 (NSW):
''the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind'.'
That statement was reinforced recently by the Full Court in Petruski & Balena [2013] FamCAFC 15, Lovine & Connor and Anor [2012] FamCAFC 168 and Dickons & Dickons [2012] FamCAFC 154.
The father contends that contributions favour him by reason of his initial contribution and his post separation parenting of two of the children. Otherwise, he says contributions should be regarded as equal. He contends contributions should favour him 55/45.
The mother contends that overall contributions should be regarded as equal, pointing to her care of the father after his health episode in 2010 and his occupation of the home for three years post separation.
Having regard to the circumstances of this relationship as discussed, there should be a small recognition of the husband’s contributions over those of the mother to the extent of 52.5 per cent/47.5 per cent. This creates a disparity of about $50,000.00 between the parties.
S75(2) adjustment if any
The relevant factors are:
(a)the age and state of health of each of the parties;
The parties are of similar age. The father has had health issues but asserts that such does not infer with his current ability to work.
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The mother has not been in paid employment for many years. That is how the household was run with, it appears, no expectation that she should obtain employment. Her English is poor. Her prospects of proper gainful employment at some future date are indeterminate. The father is working and as discussed there is some circumspection as to his real income. It is determined that he has a more significant capacity for work than he professes. It is trite to say that the best thing a father can take out of a marriage is his earning capacity: B & B (No 2) [2000] FamCAFC 734.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
C is aged nearly seven and at school. The mother will have the care of B now 14 years of age.
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
The mother needs to provide for herself and B at this point from government benefits and likely from her capital from her property entitlement.
(e)…
(f)subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,
and the rate of any such pension, allowance or benefit being paid to either party;
The mother is in receipt of government benefits of about $700.00 per week. The father receives benefits of $140.00 per week to top up his declared income.
The father has residual superannuation and will accrue ongoing superannuation from employment into the future. The wife has no superannuation and little prospect of any significant accrual.
(g)…
(h)…
(ha)…
(j)…
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
By reason of the years of cohabitation whereby the mother’s role was in the home by reason of agreement or cultural expectations she has now little prospect of meaningful employment.
(l)…
(m)…
(n)the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
Property orders will see both parties with not insignificant capital.
(naa)…
(na)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; and
It is not expected that either party will have any reasonable prospect of child support from the other.
(o)…
(p)…
(q)…
It is contended by the father that there should be an adjustment of five per cent in his favour by reason of the younger child being in his care with little prospect of any child support.
The mother contends that there should be an adjustment of seven and a half per cent in her favour by reason of the above considerations. Such adjustment would represent a disparity of about $150,000.00 between the parties.
It is considered that overall there should be an adjustment under s 75(2) of five per cent in favour of the mother.
Overall
Overall the pool should be apportioned 52.5 per cent to the mother and 47.5 per cent to the father.
This would entitle the mother to a sum of $522,433.00.
She has:
German car $ 12,000.00
Interim property payment $ 100,000.00
She requires a balance of $ 410,438.00
The mother should thus receive the funds in the controlled money account of $147,000.00 plus a payment of $263,438.00 from the husband within two months in consideration of which she is to transfer her interest in the Suburb O home to the father.
In the circumstances of this matter such orders are considered to be just and equitable.
Orders will be made accordingly.
I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 July 2017.
Associate:
Date: 12 July 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Costs
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Remedies
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Injunction
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Consent
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