PETERS & JENSEN - [2013] FamCA 816

FAMILY COURT OF AUSTRALIA

PETERS & JENSEN

[2013] FamCA 816

FAMILY LAW – DE FACTO RELATIONSHIPS – Applicability of Stanford & Stanford to the law relating to property settlement of de facto relationships

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – whether it is just and equitable to make an order altering the parties legal and equitable interests – Is there a threshold step?

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – What weight to be given to varying and disparate financial and non-financial contributions across a long-term relationship – Where one partner received a large inheritance late in the relationship – Where a final analysis of the parties’ contributions requires a comparison of unalike factors.

FAMILY LAW – PROPERTY SETTLEMENT – No add-backs- application of s 90SF(3) (s 75(2)) equivalent – Balancing of factors – matters to be included in consideration including paid legal costs and pre-emptive property distributions – also property or possible rights to property not adequately disclosed..

Family Law Act 1975 (Cth)

Bevan & Bevan [2013] FamCAFC 116
Bremner & Bremner(1995) FLC ¶ 92-560
Dickson & Dickson (1999) FLC ¶ 92-843
Hickey & Hickey & the Attorney General of the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143
Kennon & Kennon(1997) FLC ¶ 92-757
Money & Money(1994) FLC ¶ 92-485
Pierce & Pierce (1999) FLC ¶ 92-844
Stanford & Stanford (2012) 293 ALR 70
Walker & Walker (cited in Dickson & Dickson (above)

APPLICANT:

Mr Peters

RESPONDENT:

Ms Jensen

FILE NUMBER:

CAC

1384

2011

DATE DELIVERED:

23 October 2013

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

24 & 25 May 2012, 9 August 2013 and 24 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney

SOLICITOR FOR THE APPLICANT:

Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT:

Mr Hodgson

SOLICITOR FOR THE RESPONDENT:

Nicholl & Co Lawyers

Orders

Ms Jensen (the wife), shall, within 60 days of these orders, or such further time as the parties may agree, either:
(a)Do all acts and things as may be necessary to transfer to Mr Peters (the husband) all of her right, title and interest to C Street, Suburb D, ACT; or
(b)Pay to the husband $800,000.
(c)If at the end of 60 days the wife has not chosen to transfer $800,000 to the husband, then, unless the parties otherwise agree, she must do all acts and things as may be necessary to transfer to the husband all of her right, title and interest to C Street, Suburb D, ACT.
(d)If the wife transfers her right, title and interest to C Street, Suburb, D ACT to the husband, the husband will indemnify the wife, and keep her indemnified from and against all claims, actions, suits, demands and charges with respect to C Street, Suburb D, ACT.
(e)The husband will pay the costs and charges of the transfer to him of C Street, Suburb D, ACT.
The wife shall, within 60 days of these orders, or as otherwise agreed between the parties, pay…

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.

Continue reading PETERS & JENSEN

Details

AGLC: PETERS & JENSEN [2013] FamCA 816
Case: [2013] FamCA 816
Decision Date: 23 October 2013

CaseChat Overview and Summary

This case concerned a property settlement dispute between Mr Peters (the husband) and Ms Jensen (the wife) in the context of a de facto relationship. The primary dispute revolved around the division of the parties' assets and the weight to be given to their various financial and non-financial contributions throughout their long-term relationship, particularly in light of a significant inheritance received by one party late in the relationship.

The court was required to determine whether it was just and equitable to make an order altering the parties' legal and equitable interests in their property. This involved considering whether there was a preliminary threshold step before assessing contributions and other relevant factors under the relevant sections of the Family Law Act, and how to approach the balancing of disparate contributions, including a large inheritance received late in the relationship. The court also had to consider the application of principles analogous to section 75(2) of the Family Law Act, including matters such as paid legal costs and pre-emptive property distributions, and the impact of any inadequately disclosed property or potential rights to property.

The court reasoned that, in conformity with principles established in cases such as *Bevan & Bevan*, it was not necessary to treat the question of whether an order altering property interests would be just and equitable as a preliminary, separate issue. Instead, justice and equity must permeate the entire process of adjustment, rather than being a distinct, formal stage. The court considered submissions regarding the weighting of contributions, with the husband arguing for a 30% contribution and the wife suggesting a range of 5-10% if a global approach was adopted. The court also addressed the wife's submission that certain assets, such as paid legal fees and a settlement payment, should be removed from the asset pool before division.

The court ordered that Ms Jensen must, within 60 days, either transfer her interest in a property at C Street, Suburb D, ACT to Mr Peters or pay him $800,000. If she did not choose to pay the sum, she was to transfer her interest in the property. Mr Peters was to indemnify Ms Jensen regarding claims related to the C Street property, and he was to bear the costs of the transfer. Ms Jensen was also ordered to pay Mr Peters a further $321,743 within 60 days. Additionally, Ms Jensen was to transfer her interest in an aircraft, a sailboat, the contents of the C Street property, a motor vehicle, and Mr Peters' CSS pension to him if requested. Both parties were declared the owners of property in their possession and control, with mutual indemnities regarding their respective properties.

Orders

Orders of the court

Ms Jensen (the wife), shall, within 60 days of these orders, or such further time as the parties may agree, either:

(a) Do all acts and things as may be necessary to transfer to Mr Peters (the husband) all of her right, title and interest to C Street, Suburb D, ACT; or

(b) Pay to the husband $800,000.

(c) If at the end of 60 days the wife has not chosen to transfer $800,000 to the husband, then, unless the parties otherwise agree, she must do all acts and things as may be necessary to transfer to the husband all of her right, title and interest to C Street, Suburb D, ACT.

(d) If the wife transfers her right, title and interest to C Street, Suburb, D ACT to the husband, the husband will indemnify the wife, and keep her indemnified from and against all claims, actions, suits, demands and charges with respect to C Street, Suburb D, ACT.

(e) The husband will pay the costs and charges of the transfer to him of C Street, Suburb D, ACT.

The wife shall, within 60 days of these orders, or as otherwise agreed between the parties, pay to the husband a further $321,743.

The wife shall do all acts and things as may be necessary, if she is requested to do so, to transfer any right, title or interest as she may have in the Aircraft; the Sail Boat “B”; all the contents of C Street, Suburb D, ACT; the motor vehicle; and the Husband’s CSS Pension to the husband.

The wife is declared to be the owner at law and in equity of all property in her possession and control.

The husband is declared to be the owner at law and in equity of all property in his possession and control.

The wife will indemnify the husband, and keep him indemnified from and against all claims, actions, suits, demands and charges with respect to all of her property.

The husband will indemnify the wife, and keep her indemnified from and against all claims, actions, suits, demands and charges with respect to all of his property.

All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

10.

This matter is removed from the pending cases list

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

Moreover, in conformity with at least some parts of Bevan & Bevan [70, 85, 89] it is not necessary to deal with the issue as a preliminary question as long as I do not merge the consideration of whether an order altering the interests of the property of the parties would be just and equitable with the process of the consideration of the form of such order by reference to ss 90SM and 90SF. In the final submissions Mr Kearney contended that, on a proper consideration of all relevant matters, the contributions (which he suggests should be dealt with in a global way) from the husband be regarded as being 30 per cent with 70 per cent from the respondent. As he comments[12] this would bring about a differential (on contributions) between the parties of some $3.1 million. [12] Submission 6.33 dated 23 September 2013 He also suggested that there should be a further adjustment by reference to the factors under s 90SF(3) of 10 per cent[13]. This would produce[14] a division of 60 per cent to the respondent and 40 per cent to the applicant. [13] Submission 7.20[14] Submission 8.3 For her part, the wife’s counsel, Mr Hodgson submitted that in large measure the property of the parties should not be altered from its present ownership and that it was not appropriate to deal with the matter on a “global” basis.[15] Each of the parties should keep his or her own assets but the boat ‘B” should be transferred by the wife to the husband. This in itself represents an alteration of the interests of the property which the wife considers to be just and equitable. This process was described by Mr Kearney, on behalf of the husband, as quarantining the assets which he said was inappropriate and in this instance invalid. [15] P 14 wife’s submissions dated 1 October 2013 However, Mr Hodgson in the final paragraph of his submissions suggests that if a global approach is undertaken, then the contributions (and other factors) should be regarded as being in the range of 5-10 per cent by the husband. It was suggested that the parties’ paid legal fees and the Ms M settlement should be removed and that this would leave an asset pool of $7,623,220. This means according to the wife’s submissions that the settlement range for the husband would be in the order of $381,000 to about $762,000.[16] This in turn would mean that as he retains assets of $212,322 the adjustment to be made in his favour will be a further payment to him in the range of $168,841 to $550,002.[16] (in addition to the part property settlement and the boat and the plane and the other assets in the husband’s name) As was stated in Bevan & Bevan[17] it is not yet clear whether the High Court was either suggesting or mandating an approach different from the traditional Hickey & Hickey approach. It seems it might reasonably be said that the so called fourth step is misplaced, at least so far as a formal stage in the process is concerned. Justice and equity, it seems, must permeate the process of adjustment (if any) but not be conflated with it.[18] [17] [2013] FAMCAFC 116[18] Stanford [40]