Oliver and Hughes - [2018] FamCA 731

FAMILY COURT OF AUSTRALIA

OLIVER & HUGHES

[2018] FamCA 731

FAMILY LAW – PROPERTY – competing applications for adjustment of interests in matrimonial property – Where the duration of the marital relationship is very much an issue – Where the wife asserts the parties lived together for five years – Where the husband asserts the parties lived together for 17 years with short periods of separation – Where the husband provided for the welfare and financial support for the wife, the parties’ child and the wife’s three children – Where the husband was unaware that the wife was in receipt of single parent Commonwealth benefits and of child support from her former husband during the relationship – Where the wife did not make full disclosure of her financial position – Where contributions favour the husband – Where has a higher income earning capacity - Where it is just and equitable to make an adjustment – Orders made adjusting property interests 55/45 percent in favour of the husband – Splitting order made – Where the matter was referred to the Commonwealth Director of Public Prosecutions for investigation and prosecution of any offence.

Family Law Act 1975 (Cth)

Bevan & Bevan [2013] FamCAFC 116
Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Ms Oliver

RESPONDENT:

Mr Hughes

FILE NUMBER:

PAC

5262

2015

DATE DELIVERED:

14 September 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Cleary J

HEARING DATE:

23-24 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lioumis

SOLICITOR FOR THE APPLICANT:

A B Mezzanotte Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Haughton

SOLICITOR FOR THE RESPONDENT:

Brydens Lawyers Pty Ltd

Orders

That each of the parties forthwith sign necessary documents and provide all such authorities to B Lawyers to authorise release of funds [held in their trust account on behalf of the parties] to the husband, or as the solicitors for the husband direct in writing.
That the wife shall re-finance in her sole name or discharge the existing mortgage registered on the title of the property at C Street, Suburb D (“the Suburb D property”).
That contemporaneously with Order 2:
3.1The husband shall do all acts and things and sign all necessary documents to transfer to the wife his right, title and interest in the Suburb D property;
3.2The wife shall pay to the husband the sum of $100,769.
That in the event that the wife fails or neglects to comply with Orders 2 and 3 then forthwith upon such default the Applicant and Respondent shall do all acts and things and sign all documents necessary so as to cause the property to be sold and for the purposes of effecting that sale the parties agree:
4.1The property shall be listed for sale by way of public auction;
4.2The auctioneer shall be agreed between the parties. Failing agreement, the auctioneer shall be nominated by the president of the Real Estate Institute of New South Wales;
4.3The reserve price shall, unless otherwise agreed upon between the parties, be as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FamCA 731
Decision Date: 14 September 2018

CaseChat Overview and Summary

This matter concerned proceedings between Ms Oliver (the Applicant) and Mr Hughes (the Respondent), heard by Cleary J. The dispute involved the division of property and financial resources between the parties, including a property located at C Street, Suburb D, and Mr Hughes' superannuation interest. The court was required to make orders regarding the disposition of these assets and liabilities.

The primary legal issues before the court were how to achieve a just and equitable division of the parties' property, specifically concerning the Suburb D property and Mr Hughes' superannuation. This involved determining the wife's obligations for refinancing or discharging the mortgage on the property, the husband's transfer of his interest, and the financial adjustments required between the parties. Furthermore, the court had to address the division of Mr Hughes' superannuation interest in E Super, including the application of relevant provisions of the *Family Law Act 1975* and the *Family Law (Superannuation) Regulations 2001*. The court also considered the potential consequences of the wife's receipt of Centrelink benefits.

Cleary J applied principles of property settlement under the *Family Law Act 1975*, aiming for a just and equitable outcome. The court ordered the release of funds held in trust by B Lawyers to the husband. The wife was directed to refinance or discharge the mortgage on the Suburb D property, and contemporaneously, the husband was to transfer his interest in the property to the wife, with the wife paying the husband a sum of $100,769. In the event of the wife's default, the property was to be sold by public auction, with specific provisions for the auctioneer, reserve price, and agent. Proceeds of sale were to be applied first to the mortgage, then sale costs, legal fees, and thereafter distributed with 20% of the net proceeds to the husband and the remainder to the wife. The court also made specific orders regarding the division of Mr Hughes' superannuation, allocating a base amount of $41,950 to the wife from his E Super interest, in accordance with s 90MT of the *Family Law Act 1975*.

Finally, the court ordered that each party was solely entitled to property in their possession, with specific provisions for bank accounts and insurance policies. The court also directed that a Registrar send copies of various documents to the Commonwealth Director of Public Prosecutions for consideration of potential charges against the Applicant concerning Centrelink benefits received between 2005 and 2013.

Orders

Orders of the court

That each of the parties forthwith sign necessary documents and provide all such authorities to B Lawyers to authorise release of funds [held in their trust account on behalf of the parties] to the husband, or as the solicitors for the husband direct in writing.

That the wife shall re-finance in her sole name or discharge the existing mortgage registered on the title of the property at C Street, Suburb D (“the Suburb D property”).

That contemporaneously with Order 2:

3.1 The husband shall do all acts and things and sign all necessary documents to transfer to the wife his right, title and interest in the Suburb D property;

3.2 The wife shall pay to the husband the sum of $100,769.

That in the event that the wife fails or neglects to comply with Orders 2 and 3 then forthwith upon such default the Applicant and Respondent shall do all acts and things and sign all documents necessary so as to cause the property to be sold and for the purposes of effecting that sale the parties agree:

4.1 The property shall be listed for sale by way of public auction;

4.2 The auctioneer shall be agreed between the parties. Failing agreement, the auctioneer shall be nominated by the president of the Real Estate Institute of New South Wales;

4.3 The reserve price shall, unless otherwise agreed upon between the parties, be as proposed by the auctioneer;

4.4 The said property shall be listed for sale by public auction with such real estate agent or agents as may be agreed upon between the parties and failing agreement such real estate agent or agents as are nominated by the president of the Real Estate Institute of New South Wales;

4.5 The auction shall take place within six (6) weeks from the day it is listed with the agent.

In the event that the property is not sold by public auction in accordance with Order 4 then the parties agree that they shall cause the Suburb D property to be submitted to sale by private treaty with the same real estate agent detailed in Order 4.4 at a price agreed upon between the parties or in default of agreement as to a selling price, at a price to be determined to be a fair market price by the president of the Real Estate Institute of New South Wales, or their nominee whose decision shall be final and binding upon the parties.

That upon the sale of the Suburb D property the proceeds of sale be disbursed in the following manner and priority:

6.1 In discharge of the mortgage presently encumbering the property;

6.2 The costs, expenses, commissions, advertising fees and disbursements of the agent and/or auctioneer conducting the sale of the property;

6.3 The costs and fees of any legal fees and expenses arising from the sale of the respective property;

6.4 In payment to:

6.4.1 The husband of a sum representing 20 per cent of the net proceeds of sale;

6.4.2 The remainder thereafter to the wife.

Each of the parties may attend the auction and bid to purchase.

That the wife may continue to occupy the Suburb D property until transfer to her of the husband’s interest or sale pursuant to these orders, whichever is the case, on condition that she makes the required mortgage repayments, pays land and water rates and maintains the property in a good condition.

That:

9.1 In accordance with s 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to the Respondent husband from his interest in his E Super (Member Number #08), the Applicant wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount $41,950 and that there be a corresponding reduction in the entitlement that the Respondent husband would have had but for these orders;

9.2 That the Court allocate, pursuant to s 90MT(4) of the Family Law Act 1975, a base amount of $41,950 to the Applicant wife out of the Respondent husband’s interest in the E Super (Member Number #08);

9.3 That having been accorded procedural fairness in relation to the making of these orders, these orders bind the trustee of the Respondent husband’s superannuation fund;

9.4 The operative time for these orders is four (4) business days after receiving a sealed copy of the Court orders.

10.

That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any monies under these or any subsequent orders:

10.1 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;

10.2 Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

10.3 Each party hereby 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;

10.4 All insurance policies are to become the sole property of the owner named hereon;

10.5 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.

IT is further ordered

11.

That a Registrar of this Court shall send to the Commonwealth Director of Public Prosecutions copies of the following documents in proceedings number PAC5262/2015 for the purpose of consideration as to whether the Applicant, Ms Oliver, should be charged with and prosecuted for any offence in connection with the receipt of Centrelink Benefits in the period between 2005 and 2013:

(a) These Orders and Reasons for Judgment dated 14 September 2018;

(b) Affidavit of the Applicant Ms Oliver sworn or affirmed on 21 March 2018;

(d) Affidavit of the Respondent Mr Hughes sworn 16 March 2018;

(e) Financial Statement of Mr Hughes sworn or affirmed on 25 January 2018;

(f) Documents produced by Centrelink in response to Subpoena [Exhibit 2 in proceedings].

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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