Percival and Percival
[2009] FMCAfam 18
•9 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PERCIVAL & PERCIVAL | [2009] FMCAfam 18 |
| FAMILY LAW – Property – undefended hearing – contributions – s.75(2) factors. |
| Family Law Act 1975, s.75(2) |
| Applicant: | MR PERCIVAL |
| Respondent: | MS PERCIVAL |
| File Number: | MLC 9146 of 2007 |
| Judgment of: | McGuire FM |
| Hearing date: | 19 December 2008 |
| Date of Last Submission: | 19 December 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 9 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robinson |
| Solicitors for the Applicant: | Holding Redlich |
| The Respondent: | No appearance |
ORDERS
On or before 19th February, 2009 (“the date”), the wife pay to the husband the sum of $445,000 (“the payment”).
Contemporaneously with the payment:
(a)the wife refinance the NAB loans (numbered [1], [2], [4]) secured over the real property at Property K into her own name and do all things necessary to procure the release of the husband from any liability in relation to same;
(b)the wife discharge the NAB Visa Gold credit card (number [0]) and the parties close the account;
(c)the husband transfer to the wife, at the expense of the wife, all of his right, title and interest in Property K;
(d)the husband transfer to the wife, at the expense of the wife, the Mercedes Benz E200 motor vehicle; and
(e)the parties transfer to the wife the balance of, or the husband be removed as signatory to, the joint accounts (NAB numbered [6] and [5] and the [Percival] bank account).
In the event the whole of the payment is not made by the date the wife shall do all acts and things and sign all such documents necessary to transfer Property K to the husband to be held by him on trust for sale (“the trust transfer”).
Forthwith upon the completion of the trust transfer, the husband shall do all such things necessary to place Property K on the market for sale by public auction (“the sale”) and upon completion and settlement of the sale shall apply the proceeds as follows:
(a)first, to pay the costs, commission and expenses of the trust transfer and the sale;
(b)second, to discharge all loans owing to the NAB and secured against the Property K;
(c)third, to pay to the husband such sum as results from the following equation –
Amount = .4 x (Net Proceeds +574,987) – 237,352
Where - Amount is the amount paid to the husband; and
Net
Proceeds is the proceeds of the sale less the
amounts in sub-paragraphs (a) and (b);
(d)fourth, to discharge the NAB Visa Gold credit card debt in the name of the husband, and, in the event the husband has paid any monies into the NAB Visa Gold account since the date of these orders, to pay to the husband the total amount of such monies;
(e)fifth, to pay the sum of $9,777.90 to the husband; and
(f)sixth, the balance then remaining to the wife.
The husband and wife do all things and sign all such documents as are necessary to remove himself as a trustee of the [Percival] Superannuation Fund and to transfer his entitlements in that fund into another fund of his choice.
That, save as provided for in these orders and for the purposes of enforcement of these or subsequent orders:
(a)each party retain all property, chattels, assets and choses-in-action in their possession as at the date of these orders, with the wife to retain all chattels in the Property K;
(b)monies standing to the credit of each party be retained by that party, with the balance in any joint accounts to be retained by the wife;
(c)each party retain all superannuation interests held in their name;
(d)each party otherwise retain responsibility for all credit cards, loans and other debts in their name;
(e)each party shall be responsible for, and shall indemnify the other, in relation to all debts or other encumbrances affecting any property which they hold or to which they are entitled; and
(f)any joint tenancy in real estate is expressly severed.
In the event the wife refuses or fails to sign any document as required by these orders, then pursuant to s.106A of the Family Law Act 1975 the Registrar or a Deputy Registrar of the Family Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the wife and to do all acts and things necessary to give validity and operation to all such deeds and documents so as to effect compliance with the terms of the order by the wife.
IT IS NOTED that publication of this judgment under the pseudonym Percival & Percival is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 9146 of 2007
| MR PERCIVAL |
Applicant
And
| MS PERCIVAL |
Respondent
REASONS FOR JUDGMENT
Background
This is an application by the husband, Mr Percival, for orders as to property settlement filed 1 December 2006.
The matter proceeded to hearing on an undefended basis on
19 December 2008The wife, Ms Percival was called at 10:02am. She was not present at Court. She was not represented.
The wife had, in fact, corresponded directly with the Court and also with the husband’s solicitors on the day prior to the hearing indicating that she would not be in attendance at the Court.
The wife’s correspondence, whilst confusing in its content, appeared to indicate that she was contemplating a number of either appeals or collateral Court actions against the husband.
Ms Percival also stated that she was unwell. No medical evidence or corroboration was provided. In the circumstances of the history of this matter and the above, I acceded to the application by husband’s counsel for an undefended hearing.
The husband is 57 years of age, being born in 1951.
The wife is 49 years of age, being born in 1959.
The wife is Chinese by origin. In previous appearances before the Court, Ms Percival has had the assistance of an interpreter but from observations appears to have some practical and workable knowledge and understanding of the English language.
An interpreter was made available for her for the hearing of
19 December 2008and for which Ms Percival did not attend.
The parties commenced cohabitation in April 1992 and were married on 17 December 1994.
The parties separated on 28 October 2004 and were divorced on
4 December 2005.
There are two children of the marriage, namely [X] born in 1993 (aged 15 years) and [Y] born in 1996 (aged 12 years).
Both parties [hold occupations in the Financial Industry]. The husband in his financial statement sworn 22 September 2008 deposes to a gross income of $2,359.00 per week.
The wife has not filed a recent financial statement. She has previously described herself as having [financial industry] qualifications. The husband in his trial affidavit filed 22 September 2008 says:
44. Ms Percival completed her [omitted] qualifications over a number of years at Box Hill and Monash.
45. At the time of out separation in 2004 the [Financial Industry] business was generating about $80,000 to $100,000 a year. Ms Percival was generating about 60% to 70% of this work and I was generating about 30% to 40% of this work.
Ms Percival has continued this work since we separated.
46. Since November 2007 Ms Percival had her own [Financial Industry] registration number and is able to continue and expand her [Financial Industry] business. She has now also completed her [Financial Industry] qualifications and would be able to obtain other employment as an [occupation omitted] if she wished to do so.
For the purposes of these proceedings I accept this evidence of the husband.
History of proceedings
It is necessary, in my view, to set out the history of the proceedings given that this matter has proceeded on an undefended basis. That history is as follows:
·On 1 December 2006 the husband filed a Form 1 Application in the Family Court.
·On 22 January 2007 the matter was listed for a case assessment conference before Registrar Marrone. The wife did not attend. The matter was adjourned to 14 February 2007.
·On 7 February 2007 the wife filed a Form 1A Response.
·On 14 February 2007 the matter was listed and procedural orders made by Registrar Kaur.
·On 12 April 2007 the wife filed a Form 2 Application to review the decision of Registrar Kaur on 14 February 2007.
·On 23 April 2007 the matter was listed for a conciliation conference before Registrar Hunt. The wife did not attend. The conciliation conference was adjourned to 15 May 2007.
·On 4 May 2007 the husband filed a Form 2A Response.
·On 10 May 2007 the wife’s Form 2 Application to review the decision of Registrar Kaur on 14 February 2007 was heard by Justice Dessau. Her Honour dismissed the Form 2 Application and adjourned the conciliation conference to 7 June 2007 to enable exchange of information.
·From 11 May 2007 to 6 June 2007 there were communications between the husband’s solicitor and the wife. The husband requested that the conciliation conference listed for 7 June 2007 be adjourned because he would be overseas. The wife refused the request to adjourn.
·On 6 June 2007 the wife filed a notice of appeal against the decision of Justice Dessau on 10 May 2007.
·On 7 June 2007 the conciliation conference was adjourned by Registrar Marrone to 30 July 2007.
·On 6 July 2007 the wife filed a Form 2 Application to review the decision of Registrar Marrone on 7 June 2007.
·On 30 July 2007 the matter was listed for a conciliation conference before Registrar Riddiford. The wife did not attend. The matter was then transferred to the Federal Magistrates Court.
·On 21 August 2007 the husband filed a Form 2A Response in the Family Court.
·On 31 August 2007 the wife’s Form 2 Application to review the decision of Registrar Marrone on 7 June 2007 was heard by Justice Guest. His Honour dismissed the wife’s Form 2 Application.
·On 27 September 2007 the wife filed a notice of appeal against the decision of Justice Guest on 31 August 2007.
·On 25 October 2007 the wife filed a Response to Application for Final Orders in the Federal Magistrates Court.
·On 30 October 2007 the matter was listed for its first return in the Federal Magistrates Court before Federal Magistrate Riethmuller, who made procedural and other orders.
·On 12 December 2007 a directions hearing for the wife’s notice of appeal was heard by Justice Kay of the Family Court, who made procedural orders.
·On 18 April 2008 the wife filed an Application in a Case in the Family Court to adduce further evidence at the appeal hearing.
·On 7 May 2008 the Full Court heard the wife’s application for appeal. The Full Court comprised of Justices Finn, Warnick and Boland.
·On 20 June 2008 the Full Court delivered its judgment, dismissing the wife’s appeal.
By orders of 30 October 2007 Federal Magistrate Riethmuller adjourned the matter for final hearing with an estimated hearing time of two days to 20 October 2008. It is apparent, therefore, that the wife had almost one year of notice of the final hearing.
The matter came before me for hearing on 20 October 2008. Before me on that day was an application by the wife seeking an adjournment of the substantive issues until the year 2015 – a period of some seven years. That application was refused. However, it was apparent that the wife was not ready for hearing on that day. The matter was therefore listed for hearing commencing 30 October 2008 with directions that the wife file and serve any updated financial statement and affidavit material on which she intended to rely by 4:00pm on 28 October 2008.
The wife did not and has not filed any further affidavit material in respect of the substantive issue.
The matter came before me again on 30 October 2008. On that occasion, the wife brought an oral application for a stay of proceedings. She was unsuccessful. The matter was further listed for final hearing on 19 and 22 December 2008. The wife was afforded further indulgence in allowing her to file updated affidavits and financial statements not later than 4:00pm on 12 December 2008.
An award of costs was made against the wife in respect of the adjournments of the 20 October 2008 and 30 October 2008.
On 1 December 2008 the wife filed two separate further affidavits. The text of those affidavits suggests that they are in support of a further application for a stay. The Court file discloses no such application. In any event, the wife did not attend at Court on 19 December 2008 to prosecute any such application.
Against this background the matter proceeded by way of undefended hearing on the husband’s application on 19 December 2008.
Orders sought
The husband sought an order whereby he retain 40% of the net property of the parties and that the wife retain 60%.
Both parties have superannuation entitlements. It is the husband’s proposal that each party retain each of their superannuation entitlements as a part of the overall settlement.
Evidence
The husband relied upon the following documents:
·Form 1 Application for Final Orders – filed 1 December 2006
·Affidavit of Mr Percival – filed 22 September 2008
·Financial Statement of Mr Percival – filed 22 September 2008
·Affidavit of Mr G (valuer) – filed 22 September 2008.
The husband through his counsel tendered in evidence a print out of relevant bank balances as at 15 September 2008.
Assets, liabilities and superannuation
The evidence of the husband is that the assets of the parties comprises of the following:
Property K
$1,600,00.00
Mercedes E200 (2002)
$20,000.00
[Percival] Trust
$4,977.00
NAB Account [5]
$6,777.00
NAB Account [6]
$2,298.00
Total
$1,634,052.00
The liabilities of the parties are as follows:
NAB Loan Account [1]
$266,331.00
NAB Loan Account [2]
$95,897.00
NAB Loan Account [4]
$90,810.00
NAB Visa Gold
$11,235.00
Total
$464,273.00
The superannuation entitlements of the parties are as follows:
Wife’s superannuation
$303,583.00
Husband’s superannuation
$237,352.00
Total
$540,935.00
The total net assets, including superannuation, therefore amount to $1,710,714.00.
The affidavit of Mr G provides a valuation of the major asset being the former matrimonial home at $1,600,00.00. I accept that valuation.
Contributions
At the commencement of cohabitation the wife owned a piece of real estate. There was little equity.
The husband deposes that the wife’s mother passed away in about 1996. She was apparently a woman of some substance. It is the husband’s view that the wife may have some residual entitlement. There is no better evidence than this.
Near the time of commencement of cohabitation the husband received $70,000.00 from a financial settlement with his first wife. He too owned some real estate. Similarly, there was little or no equity. The $70,000.00 from the husband’s settlement was used to purchase a home for the parties. That property was placed in joint names. The purchase occurred in about 1993. The purchase was subject to a mortgage of approximately $100,000.00. Both parties were substantially in employment throughout the relationship.
The husband and the wife established a self-managed superannuation fund. They did so with deposits from the husband’s accumulated superannuation and from borrowings secured against their real estate.
The husband says that the wife has had access to approximately $100,000.00 of the parties’ assets since separation. He acknowledges that the wife may have used these moneys for normal living expenses and for the benefit of the children. He does not seek an add-back in the form of “notional property”.
In his affidavit the husband refers to his inheritance from his late mother’s estate. This came by way of a discretionary trust. His total entitlement was $181,000.00. He had previously received $77,000.00. A sum of $89,260.00 was contributed to the abovementioned [Percival] Superannuation Fund. This is a significant contribution by or on behalf of the husband. He says that there is a balance of his entitlement in a quantum of $14,740.00 plus interest.
The wife has had the primary responsibility for the care of the two children since separation. The husband pays child support but this is still a post separation contribution by the wife.
After considering the length of the relationship and the various contributory factors, I am of the view that the parties have contributed equally during the course of the relationship.
Section 75(2) factors
Both parties are qualified and employed in the [Financial Industry] field.
The husband is 57 years of age and his evidence is that he is close to retirement. The wife is 49 years of age. The evidence is that she continues to run the practice commenced by the parties together during the relationship. I find that the wife has a longer working life than does the husband.
The wife has the responsibility for the care and control of the two children of the marriage.
The husband has remarried. His current wife does not work and relies on husband for financial support.
Both parties pursuant to these orders will retain their superannuation entitlements. The husband has a greater superannuation entitlement than does the wife.
In all the circumstances, I believe that an adjustment of 10% in favour of the wife on account of s.75(2) factors would be appropriate.
Conclusion
Consequently, I conclude that a settlement of 60% of the property in favour of the wife would be appropriate. I am of the view that such a distribution would be just and equitable in all the circumstances.
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of McGuire FM
Associate: Ann Creek
Date: 27 January 2009
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